SeaWorld, Ex-CEO Agree to $5 Million Settlement in Blackfish Fraud

More than five years after the documentary Blackfish took aim at SeaWorld Entertainment's handling of captive killer whales, the company has agreed to settle fraud charges with the Securities and Exchange Commission over statements executives made in the aftermath.

SeaWorld agreed to pay a $4 million penalty, while former CEO James Atchison will pay a penalty of more than $1 million, the SEC announced Tuesday. A former communications vice president, Frederick Jacobs, will pay about $100,000. The company revealed last month during an earnings call that a settlement was in the works.

"The company is pleased to have resolved this matter and to continue to focus on delivering superior guest experiences, world-class animal care and rescuing animals in need," SeaWorld said in a regulatory filing. The company's portfolio includes SeaWorld, Busch Gardens, and Sesame Place theme parks around the United States.

SeaWorld and Atchison agreed to the settlement without admitting or denying the allegations levied against them by investigators. The SEC filed a federal complaint in New York Tuesday laying out the details and charging both with violating antifraud provisions of securities laws as well as charging SeaWorld with reporting violations.

At issue, according to a statement, is a series of "untrue and misleading statements or omissions in SEC flings, earnings release and calls, and other statements to the press" about the impact of the film between December 2013 and August 2014. According to authorities, executives at SeaWorld discussed the negative impact of the movie internally but denied it publicly on multiple occasions over the course of several months.

The complaint showed that the company had signs that its reputation was damaged as far back as September of 2013, a couple months after the film's release. After several music acts canceled performances at SeaWorld parks, Atchison said in a December 2013 email that he was concerned about the "momentum building" in opposition to the company, which he tied to the documentary's broader distribution.

Still, that same month he was quoted in a story saying, "I can't connect anything really between the attention that the film has gotten and any effect on our business," according to the complaint.

As the bad news continued to mount in the form of declining attendance, negative consumer surveys, and performer cancellations, Atchison stuck to the script.

"As much as we're asked it, we can see no noticeable impact on our business," he said, referring to the movie, in a March 2014 earnings call.

That month, a bill was filed in California to ban orca performances, drawing even more attention to the issue. By the end of the first quarter of 2014, the company was acknowledging internally that Blackfish was one of the causes of a 13 percent attendance decline, according to the complaint. But the company publicly attributed the slump to other factors. Atchison also declined to tell underwriters of an April 2014 secondary offering about the impact, even when they asked about it directly.

It wasn't until August of 2014 that SeaWorld even hinted at a connection between a decline in business and the film, according to the complaint, though even that disclosure was muddled. A regulatory filing said attendance in the second quarter of that year "was impacted by demand pressures related to recent media attention surround proposed legislation in the state of California."

The company's share price plunged 33 percent, shaving about $830 million off its market capitalization, the SEC said.

Atchison sold stock between January and March of 2014 through a trading plan he had entered into earlier, and the SEC complaint alleges his comments made it possible for him to avoid losses of more than $730,000. Likewise, Jacobs, the vice president of communications, denied the Blackfish effect before selling some of his stock. The complaint said the inflated stock price allowed him to avoid losses of nearly $85,000.

"This case underscores the need for a company to provide investors with timely and accurate information that has an adverse impact on its business," Steven Peikin, co-director of the SEC Enforcement Division, said in a statement. "SeaWorld described its reputation as one of its 'most important assets,' but it failed to evaluate and disclose the adverse impact Blackfish had on its business in a timely manner."

Over the past few years, SeaWorld has made several changes around its treatment of killer whales. The company ended its orca breeding program and transitioned to a more natural show featuring the creatures.  The company also tried to place more of an emphasis on rides and other forms of entertainment, including Sesame Street.

But the CEO who oversaw those changes, Joel Manby, was not able to turn the company around. He stepped down in February, followed by several other executives whom he had hired. His temporary replacement, Interim CEO John Reilly, is a longtime SeaWorld employee who has said he wants to highlight the company's animals as a competitive strength.

“We really believe that we have to do a better job talking about our differentiated product,” he said in February. “We have an irreplaceable animal collection. It’s a unique guest experience that you can’t find in any of the [other] Orlando parks. So I think what you’ll see us do going forward is better communicating the differentiators that set us up well versus our competitors.”

This story has been updated to include more details from court filings.