Attorney Lawrence Iser, in a 580-word letter to Hargrove in mid-November, said SeaWorld didn’t consent to use of such information in the book and demanded that he “immediately certify, in writing and under oath,” that he wouldn’t divulge company secrets.
“Should you fail to make this certification as requested, SeaWorld reserves its right to exercise all of its rights and remedies against you (and Macmillan Publishing) at law and in equity, all of which are hereby expressly reserved,” said the letter.
The letter was provided to Times of San Diego by Hargrove on Wednesday.
Last week, when Hargrove described the letter as a threat intended to block the critical book, SeaWorld spokesman Fred Jacobs said: “We never threatened Hargrove with a lawsuit.”
Hargrove signed an employee agreement in February 2008 but not the “declaration” demanded by SeaWorld in the Nov. 13 letter from Iser.
Was the letter a threat of legal action?
On Thursday, Iser said no, writing:
The concluding paragraph of my letter does not contain a threat to sue Mr. Hargrove. Quite to the contrary, it constitutes a reservation of rights that is typical of letters of this type. You should be aware that when SeaWorld did not sue Mr. Hargrove, his attorneys filed a meritless class action lawsuit against the company in what appeared to be an attempt to garner publicity for his book. The fact that Mr. Hargrove subsequently released to the news media my letter is consistent with his apparent desire to obtain additional publicity for himself and his book.
But experts with Californians Aware, a journalist resource group, saw a threat in the letter.
“Yes,” said a representative of CalAware, which mainly focuses on government transparency. “It states that a book about his experiences with SeaWorld would violate the nondisclosure agreement that bound him as an employee and continues to bind him as a former employee, and that SeaWorld intends to take legal action to enforce the agreement.”
- Read: Page 1 of SeaWorld attorney letter to John Hargrove (PDF)
- Read: Page 2 of SeaWorld attorney letter to John Hargrove (PDF)
- Read: Page 3 of SeaWorld attorney letter to John Hargrove (PDF)
- Read: Page 4 of SeaWorld attorney letter to John Hargrove (PDF)
- Read: Page 5 of SeaWorld attorney letter to John Hargrove (PDF)
However, CalAware said SeaWorld’s power to enforce the agreement was “very dubious.”
“Generally, NDAs are enforceable to the extent they expressly protect specific intellectual property, such as trade secrets that would have demonstrable utility to a competitor if revealed,” CalAware said. “This agreement purports to make all that the employee learns about the company by working there confidential and subject to the NDA in perpetuity — a little like the British Official Secrets Act.”
SeaWorld itself didn’t respond to requests for comment. Neither has MacMillan, publisher of the book by the former SeaWorld San Diego trainer.
Hargrove, 41, has said that MacMillan also received lawsuit threats to block the book, which is No. 2 on The New York Times’ bestseller list for animal books.
CalAware cautioned that the SeaWorld letter, “coming from a private, nongovernmental employer,” is not a First Amendment issue.
“Employers are free to try their best to gag employees from disclosing what they learn on or because of the job,” CalAware said. “Whether a particular NDA will work is another question.”
But Hargrove, who calls himself an orca advocate rather than activist, says the letter is part of SeaWorld’s efforts to silence him. Last week, the Orlando-based company released a 5-year-old video showing its former senior killer whale trainer drunk and using the N-word seven times.
Hargrove, who also appeared in the documentary “Blackfish,” has repeatedly apologized for his taped behavior.
SeaWorld, meanwhile, has begun soliciting the public to join its “Truth Team,” part of a push to improve its reputation and blunt a decline in stock value and attendance that led to the December resignation of James Atchison, its CEO and president.
People who sign up for the SeaWorld newsletter are told: “As a member of our special Truth Team, you’ll receive weekly emails on current topics and specific ways you can help spread the truth.”
It told subscribers to be on the alert for “rapid response” messages with “urgent action items” that require “immediate attention.”