Star of Oscar-winning film about dolphin hunting cast in long-running Broward civil action

By William Hladky, BrowardBulldog.org 

Ric O’Barry

Six years after it began, a sprawling civil action targeting the Miami-based star of an Academy Award-winning documentary about dolphin hunting in Japan drags on in Broward Circuit Court with no end in sight.

Ocean World Adventure Park, Marina and Casino, located in the Dominican Republic, says its $700 million “racketeering” suit against Ric O’Barry is about damages it suffered after O’Barry “orchestrated a campaign” that ultimately prevented Ocean World from importing in 2007 a dozen dolphins from a Japanese cove where fisherman slaughter and sometimes capture the ocean mammals.

O’Barry and his employer and co-defendant, the nonprofit Earth Island Institute, counter that Ocean World’s legal action is a SLAPP suit intended to silence O’Barry and other environmentalists. SLAPP is an acronym for “strategic lawsuit against public participation.”

“It is not going to intimidate me and shut me up,” O’Barry said in an interview.

O’Barry became a dolphin activist after training dolphins for the 1960s Miami-based television show “Flipper.” He became a star in “The Cove,’ which took home the Academy Award for Best Documentary in 2010.

The film follows O’Barry and a group of dolphin activists in Taiji, Japan, as they sneak past fences and “keep out” signs to covertly film Japanese fishermen inside the cove as they herd, trap and slaughter dolphins not selected for captivity.

Virginia Sherlock, a Stuart-based attorney experienced in defending against SLAPP suits, said real estate developers often file SLAPP suits to silence critics. Those who file SLAPP suits have no intention of winning, she said. “The purpose is to shut up” critics and make sure “everybody else knows about it” so the suit will have a chilling effect.

Thirty states, including Florida, have anti-SLAPP laws. Florida’s law is weak because it only restricts government agencies and homeowner associations from filing such suits. It does not apply to businesses.

Sherlock said that while SLAPP suits are “almost never successful,’’ they average about 3 ½ years to resolve. Ocean World’s six-year-old suit is unusual, she said.

In its original 16-page complaint, Ocean World sought to halt criticism by asking the court to order O’Barry and the Earth Island Institute, an environmental organization based in Berkeley, California, from showing any videos that mention the “Taiji Twelve” dolphins that Ocean World was attempting to import.

Such videos, the complaint alleged, would “recruit others to commit animal enterprise terror (that)…will cause economic harm…, incite blockages, violence and vandalism towards the…12 dolphins.”

The court, however, declined to approve a restraining order.

Today, the court file fills more than 28 boxes.

Ocean World brought two more suits against O’Barry and the Earth Island Institute in Miami-Dade County in 2007 and 2011 alleging slander, defamation, negligence and fraud. Both were later dismissed.

A fourth suit, filed in Broward last May, is pending. It alleges defamation, slander and libel against O’Barry and Earth Island Institute for remarks made by O’Barry on Mike Huckabee’s television show on March 14, 2010.

O’Barry was asked by Huckabee about how much money dealers earn from selling captured dolphins. He mentioned Ocean World once.

“We know that Ocean World Casino in the Dominican Republic paid $154,000 for each dolphin…and when we started speaking out against this, myself and Earth Island Institute, we were hit with a $700 million lawsuit which we are still dealing with,” O’Barry responded.

Deanna Shullman, a Lake Worth attorney who represents O’Barry, said she requested a trial date for the 2007 case more than a year ago, but has yet to receive one.

O’Barry says Ocean World doesn’t want a trial. The suit “just goes on and on,” he said.

Shullman has complained in a pleading that Ocean World’s lawyer, Alexander Penalta, has delayed proceedings by filing more than 30 notices that he would be unavailable for depositions and hearings.

Penalta, of Boca Raton, declined to be interviewed. He has, however, been busy in court.

In recent weeks, he filed papers asserting a variety of new, unsubstantiated charges against O’Barry, including one that he bilked a couple of money by claiming his dolphins could make spiritual contact with their dead son. Peralta also asked Broward Circuit Judge Marc Gold to order O’Barry to submit to a mental examination because of alleged “memory problems.”

Said Shullman, “The filings by the plaintiff are getting farther and farther afield from the true issues in this case.”

Yet the piling on of allegations is characteristic of a SLAPP suit, creating a “moving target” that is harder to defend against, according to attorney Sherlock.

“The purpose of this tactic is to keep litigation going, even when there is a clear lack of factual or legal support, by simply changing the ‘facts’ as set out by the plaintiff,” Sherlock said.

Ocean World had wanted the 12 Japanese dolphins for a second park it planned to build in the Dominican Republic. But the dolphins were not allowed to enter the Dominican Republic after the government refused to issue a required permit.

Without the dolphins, the park could not be built, Ocean World Vice President Stefan Meister said during a deposition.

“Because of the actions of your clients, I couldn’t get that import permit,” Meister said.

The original lawsuit, however, was filed by Ocean World three months before the Dominican Republic made its decision to deny the permit that prevented the dolphins from entering the country.

Attorney Sherlock said SLAPP suits frequently are filed before governmental decisions are finalized and typically accuse defendants of “defamation” and “tortious interference.” Ocean World’s original case against O’Barry includes those same counts.

While O’Barry and the Earth Island Institute are the focus of Ocean World’s litigation, there is evidence to indicate that diplomatic pressure from Germany and Great Britain played a big role in the Dominican Republic’s decision to block Ocean World’s purchase of the 12 Taiji dolphins.

Meister discussed it in an Aug. 9, 2007 email he sent to two dolphin dealers.

Meister wrote how he had met with then-Dominican Republic President Leonel Fernandez and his environmental minister to discuss importing the Japanese dolphins.

“The meeting was going our way,” Meister wrote, noting that the President had dismissed” complaints from “tour operators, animal rights groups, (and) zoological associations” opposed to importing the dolphins.

But the “atmosphere of the meeting’’ changed when the environmental minister gave Fernandez letters from the German and British ambassadors that said “importing dolphins from the Japanese…would tarnish the image of the Dominican Republic and could very well result in a negative backlash in tourism,” the email said.

“The President said in the national interest of the DR, he cannot allow this import under the international pressure,” Meister wrote.

Meister went on to say that he doubted anyone in the “Western Hemisphere” would “touch” the 12 Taiji dolphins. He suggested dolphin dealers should find a buyer “not politically sensitive to the (Japanese) issue,” possibly in China.

Rulings on the recent legal motions and notices are pending. The next hearings in the litigation are set for January in Broward Circuit Court.