SEC v. SeaWorld Entertainment, Inc.; and James Atchison, No. 1:18-cv-08480, Southern District of New York (Dec. 20, 2013) — Complaint

STEPHEN C. MCKENNA
(Pro Hac Vice Application pending)
[email protected]
SECURITIES AND EXCHANGE COMMISSION
1961 Stout Street, 17th Floor
Denver, Colorado 80294
(303) 844-1000

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES SECURITIES AND EXCHANGE
COMMISSION,

Plaintiff,

- against -

SEAWORLD ENTERTAINMENT, INC., and JAMES
ATCHISON,

Defendants.

1:18-cv-_____-________

COMPLAINT AND JURY
DEMAND

ECF CASE

Plaintiff, United States Securities and Exchange Commission (the “SEC”), for its
Complaint against defendants SeaWorld Entertainment, Inc. ( “SeaWorld”) and James Atchison
(“Atchison”) (collectively, “Defendants”), alleges as follows:
SUMMARY
1. This Complaint concerns SeaWorld’s and SeaWorld’s former chief executive
officer (“CEO”) Atchison’s omissions and disclosures relating to the impact of the documentary
film Blackfish on the company’s reputation and/or business (i.e., “Blackfish effect”).  Blackfish
was highly critical of SeaWorld’s treatment of its orcas ( killer whales).  The film was released in
theaters in July 2013, and received significant media attention that escalated as the film became

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more widely distributed—including via multiple airings on cable television beginning in late
October 2013.
2. Between approximately December 20, 2013, and August 13, 2014 (the “Relevant
Period”), in connection with the offer and sale of SeaWorld securities, SeaWorld and Atchison
engaged in a course of business that—by failing to disclose the Blackfish effect to investors—
they should have known would operate as a fraud or deceit upon the purchasers of SeaWorld
stock.
3. SeaWorld and Atchison should have known by December 20, 2013, that Blackfish
was having a negative effect on the company’s reputation and/or business relationships, and, as
the Relevant Period progressed, should have known that the Blackfish effect was becoming more
pronounced.  Yet the Defendants:
a. Made untrue or misleading statements or omissions to the press about material
facts relating to the Blackfish effect in late 2013 and early 2014;
b. Did not disclose the Blackfish effect in Form S-1 registration statements filed with
the SEC on or around March 24, 2014, and April 2, 2014, relating to a secondary
offering of SeaWorld shares by its largest shareholder on April 9, 2014; and
c. Made untrue or misleading statements or omissions about material facts relating
to the Blackfish effect during the Relevant Period in periodic filings with the SEC,
in public statements including earnings releases and calls, and in communications
with underwriters for the April 9, 2014 secondary offering.
4. During the same Relevant Period, Atchison also obtained money by means of
statements that he should have known were untrue statements of material fact and/or contained

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omissions of material facts that were necessary in order to make the statements he made not
misleading.  From January through March 2014, Atchison sold SeaWorld stock pursuant to a
Rule 10b5-1 trading plan he had entered into prior to the Relevant Period.  SeaWorld’s stock
price was inflated as a result of the conduct alleged in this Complaint, allowing Atchison to
avoid losses of approximately $730,860 on his sales.
5. On August 13, 2014, SeaWorld filed a Form 8-K that, for the first time,
acknowledged that its declining attendance was, among other factors, partially caused by
negative publicity connected to Blackfish.  Following the filing of the Form 8-K, SeaWorld’s
stock price fell approximately 33% and SeaWorld’s stock was significantly downgraded by
analysts, causing a loss of approximately $830 million in shareholder value.
NATURE OF THE PROCEEDINGS AND REQUESTED RELIEF
6. The SEC seeks permanent injunctions against both Defendants enjoining them
from engaging in the transactions, acts, practices, and courses of business alleged in this
Complaint and from violating, directly or indirectly, the laws and rules alleged in this Complaint;
disgorgement of all ill-gotten gains from the unlawful activity set forth in this Complaint,
together with prejudgment interest, against Atchison; and civil penalties pursuant to Section
20(d) of the Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77t(d)] and Section
21(d)(3) of the Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78u(d)(3)] against both
Defendants.  The SEC seeks any other relief the Court may deem appropriate pursuant to Section
21(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)].

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JURISDICTION AND VENUE
7. This Court has jurisdiction over this action pursuant to Section 22(a) of the
Securities Act [15 U.S.C. § 77v(a)] and Sections 21(d), 21(e), and 27 of the Exchange Act [15
U.S.C. §§ 78u(d), 78u(e), and 78aa].
8. Venue lies in this Court pursuant to Section 22(a) of the Securities Act [15 U.S.C.
§ 77v(a)] and Sections 21(d), 21A, and 27 of the Exchange Act [15 U.S.C. §§ 78u(d), 78u-1, and
78aa].  Certain of the acts, practices, transactions, and courses of business alleged in this
Complaint occurred within the Southern District of New York and were affected, directly or
indirectly, by making use of means or instrumentalities of transportation or communication in
interstate commerce, or the mails, or the facilities of a national securities exchange.  SeaWorld’s
stock is traded on the New York Stock Exchange (“NYSE”), which is located in the Southern
District of New York.  In addition, SeaWorld’s largest shareholder during the Relevant Period
had its principal executive office in New York, New York, where certain activities of
SeaWorld’s board of directors (“BOD”) were conducted.
DEFENDANTS
9. SeaWorld Entertainment, Inc.:  SeaWorld is a Delaware corporation with its
principal place of business in Orlando, Florida.  It is an amusement park company that, during
the Relevant Period, operated 11 parks across the United States, including three marine animal
parks located in San Diego, Orlando, and San Antonio (the “SeaWorld-named parks”) that have
historically featured live orca performances under the Shamu trademark.  SeaWorld has been an
SEC-reporting company since April 2013, and its shares are listed on the NYSE (ticker symbol:
SEAS).

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10. James Atchison:  Atchison is a resident of Windermere, Florida.  During the
Relevant Period, Atchison was SeaWorld’s president and CEO, and also served on SeaWorld’s
board of directors.   In this role, Atchison exercised control over the management, general
operations, and policies of SeaWorld, as well as the specific activities upon which SeaWorld’s
violations (as set forth herein) are based.
FACTS
The Defendants Should Have Known
that the Blackfish Effect Was Material to Investors

11. Even before Blackfish was released in theatres in July 2013, SeaWorld’s top
management was concerned about the film’s potential impact to SeaWorld’s business.  Some
investors also expressed concern about the film’s potential impact to SeaWorld’s business prior
to the film’s release.
12. In August 2013, soon after Blackfish’s theatrical release, SeaWorld reported that
attendance in the second quarter dropped from the prior year.  At that time, the Company had not
done a specific assessment of whether a portion of that drop was related to Blackfish.  The
financial press inquired whether Blackfish was harming attendance.  In response, SeaWorld told
the press that it could “attribute no attendance impact at all to the movie.”
13. On August 28, 2013, an article in the financial press suggested that, despite
SeaWorld’s denial, there might have been a link between Blackfish and SeaWorld’s declining
attendance.  Immediately following the article, SeaWorld’s share price dropped by five percent
(5%).  The Defendants should have known that the Blackfish effect, if and when such occurred,
would be material to investors.

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In Fall 2013, SeaWorld Measured Harm to Its Reputation
14. Prior to and throughout the Relevant Period, SeaWorld regularly described its
reputation in SEC filings as one of its “most important assets,”  and linked public perception of
the company to the possibility of reduced attendance and a negative impact on the company’s
business and results of operations.
15. In September 2013, SeaWorld received the results of its annual corporate
reputation study, which was conducted from August 22–30, 2013.  The results, in Atchison’s
own words, were “painful”—SeaWorld’s reputation score had fallen by 12.8% on a year-over-
year basis and was the lowest score SeaWorld had measured since beginning the annual study in
2010.
16. The study also showed that, among those who were aware of Blackfish, 32% had
less favorable opinions of SeaWorld as a result (vs. 11% who had more favorable opinions), and
that even some people who had not heard of Blackfish by name were aware of the film’s anti-
captivity message and might be impacted by it.
17. The corporate reputation study was presented by the communications department
staff to SeaWorld’s strategy committee, which included Atchison, on October 17, 2013.
Following the study, some SeaWorld officers and employees, including members of the
communications department that oversaw the study, believed that Blackfish had harmed
SeaWorld’s reputation.
18. The next week, SeaWorld’s management held a special, day-long meeting to
address the significant issues affecting SeaWorld’s reputation at the time.  Prior to the special
meeting, SeaWorld’s communications department determined to exclude the results of the

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corporate reputation study from the materials presented at the meeting.  As a result, SeaWorld’s
then chairman of the board never saw the study and was not aware of its results.
In Late 2013, the Blackfish Effect Was Becoming More Pronounced

19. In late November and early December 2013, following the first television
broadcasts of Blackfish, a number of high-profile musical acts cancelled their performances at
SeaWorld and tied the cancellations to Blackfish.  As a senior officer in SeaWorld’s
communications department put it in an email, SeaWorld’s reputation at that point was
“positively radioactive.”
20. By mid-December 2013, SeaWorld had also been informed that a number of
nationally known promotional partners wished to withdraw from or delay marketing
arrangements due to their fear of a public backlash associated with Blackfish.  Even SeaWorld’s
“longest running Partner (25 years)” declined to participate in SeaWorld’s 50th anniversary tour
because of Blackfish.
21. In a December 16, 2013 email, Atchison expressed concern about “the recent
band cancellations and momentum building around [SeaWorld’s] killer whale program.”  He
linked the building momentum to “the larger distribution [of] Blackfish” and added that he
suspected “this trend will not diminish anytime soon, as the film will likely gain an Oscar
nomination when they are announced in mid-January.”  Although SeaWorld at that time was
experiencing year-over-year revenue growth and only modest declines in attendance, these
cancellations should have provided confirmation that SeaWorld’s reputation had been materially
damaged by Blackfish, and that the Blackfish effect was negatively affecting SeaWorld’s
business relationships.

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22. In an article published on December 20, 2013, Atchison, while discussing the
company’s financial performance, provided a quote stating: “As much data as we have and as
much as we look, I can’t connect anything really between the attention that the film has gotten
and any effect on our business.”  In light of the reputational damage SeaWorld had measured and
the ensuing fallout with sponsors and bands that was linked to Blackfish, Atchison should have
known that his statement was untrue, and/or that his statement contained omissions of material
facts that were necessary in order to make the statement not misleading.
23. In addition, in an article published on January 13, 2014, SeaWorld, with
Atchison’s knowledge and/or approval, provided a quote stating: “[T]here is no truth to the
suggestion that SeaWorld’s reputation or business has been harmed by Blackfish.”  In light of the
reputational damage SeaWorld had measured and ensuing fallout with sponsors and bands that
was linked to Blackfish, SeaWorld should have known that this statement was untrue and/or that
it contained omissions of material facts that were necessary to make the statement not
misleading.
By the Time SeaWorld Announced its Q4 2013 Earnings,
Blackfish Was Impacting Attendance

24. By approximately January 2014, SeaWorld Orlando staff had begun tallying costs
and attendance losses related to group events and promotions that were canceled due to
Blackfish.  The company also began asking questions in bi-weekly consumer surveys to
determine Blackfish’s impact on consumers’ interest in visiting its parks.
25. In the first bi-weekly survey, conducted on or about January 16, 2014, the number
of respondents who were aware of the Blackfish film who were less likely to visit a “marine life
park” exceeded those who were more likely to visit by a ratio of 2-to-1 (of the 20% of consumers

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who were aware of Blackfish, 28.1% said they were less likely to visit, while 14.6% said they
were more likely to visit).
26. Atchison noted in an email that the actual negative impact might be higher than
that reflected in the first bi-weekly survey because Blackfish coverage was amplified in
SeaWorld’s home markets, while the surveys were conducted nationally.
27. Atchison was correct.  Awareness of Blackfish at the time was significantly
greater in the San Diego/Los Angeles area (35%), and among those aware of the film the ratio
between those who were less likely to visit, versus those who were more likely, was 46% to
11%.
28. Around the same time, SeaWorld became aware of two (2) third-party surveys
that yielded similar results to SeaWorld’s own bi-weekly survey.  In every survey—whether
conducted by SeaWorld or a third-party—respondents who were aware of the film indicated that
they were less likely to visit SeaWorld or another marine life park as a result of Blackfish.
29. By approximately February 10, 2014, Atchison knew that Q1 2014 attendance to
date had declined both on a year-over-year basis and when compared to SeaWorld’s internal
projections.
30. In early February, SeaWorld park officials reported to Atchison that Blackfish was
among the factors negatively impacting attendance at both SeaWorld Orlando (“SWO”) and
Busch Gardens Tampa (“BGT”).  SWO and BGT were, during the Relevant Period, SeaWorld’s
two largest parks in terms of attendance.
31. Corporate Marketing Staff also reported to Atchison that the three “worst things
we’re seeing right now” impacting SeaWorld’s 2014 performance outlook  were related to

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Blackfish: (1) Blackfish was impacting the public’s perception of SeaWorld; (2) booking
performers had become challenging for SeaWorld parks; and (3) SeaWorld had to postpone its
50th anniversary marketing tour.
32. On February 20, 2014, SWO and BGT requested—and Atchison approved—a
special promotional offer intended to offset attendance losses attributed in part to Blackfish.
33. Notwithstanding the events and data discussed above, on an earnings call on
March 13, 2014, when discussing Blackfish and the band cancellations, Atchison stated:
a. “With respect to the impact on our business, I get asked that a lot, too.  And as
much as we’re asked it, we can see no noticeable impact on our business . . . we
have seen no impact on the business”; and

b. “With respect to national surveys and data that we collect around our reputation
efforts and image, there’s awareness of the movie that kind of peaks and drops . . .
. But our surveys don’t reflect any shift in sentiment about intent to visit our
parks.”

34. At the time these statements were made, the Defendants should have known that
the statements were untrue and/or that the statements contained omissions of material fact that
were necessary in order to make the statements not misleading.
35. Despite the indicators described above that reflected that SeaWorld had suffered
reputational harm due to Blackfish and that the reputational harm was negatively impacting
SeaWorld’s business, on March 24, 2014, SeaWorld filed a Form S-1 registration statement with
the SEC, signed by Atchison, in which it stated:
Our brands and our reputation are among our most important assets.  Our
ability to attract and retain customers depends, in part, upon the external
perceptions of the Company, the quality of our theme parks and services and our
corporate and management integrity. . . . An accident or an injury at any of our
theme parks . . .  that receives media attention, is the topic of a book, film,
documentary or is otherwise the subject of public discussions, may harm our
brands or reputation, cause a loss of consumer confidence in the Company,

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reduce attendance at our theme parks and negatively impact our results of
operations.

36. By couching the reputation and business impacts as hypothetical events that
“may” occur, the Defendants made untrue or misleading statements.  The Defendants should
have known that SeaWorld’s reputation had suffered from Blackfish; should have known that the
reputational damage was negatively affecting SeaWorld’s business and attendance; and should
have known that these impacts were material to investors.  The Defendants made similar untrue
or misleading statements in a Form S-1/A filed on April 2, 2014, and in SeaWorld’s FY 2013
Form 10-K filed on March 21, 2014.
37. Securities Act Regulation S-K, Item 303(a)(3)(ii) (“SK-303”) requires issuers,
such as SeaWorld, to disclose “any known trends or uncertainties that have had or that the
registrant reasonably expects will have a material favorable or unfavorable impact on net sales or
revenues from continuing operations.”  Despite the above events indicating that Blackfish either
was affecting or would affect SeaWorld’s financial performance, SeaWorld never conducted an
evaluation of Blackfish’s potential impact on SeaWorld’s operational results, or made any
disclosure regarding the known trends or uncertainties associated with Blackfish under SK-303 in
connection with the filing of its FY 2013 Form 10-K on March 21, 2014, or its Q1 2014 Form
10-Q on May 15, 2014.
By the Time SeaWorld Announced its Q1 2014 Earnings, Blackfish Was a Significant
Cause of Declining Attendance

38. In early March 2014, a bill to ban orca performances was introduced in the
California legislature.  The legislation—referred to in the press as the “Blackfish bill”—was yet
another reaction to the Blackfish documentary and created further bad publicity for SeaWorld.

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39. At the close of Q1 2014, overall attendance at SeaWorld’s parks declined
approximately 13% on a year-over-year basis.  By this point in time, SeaWorld should have
known that Blackfish was a cause of the declining attendance at SeaWorld’s parks.
40. All three SeaWorld-named parks and BGT (which together generated
approximately 75% of SeaWorld’s 2013 revenues) had identified, in materials prepared for the
Q1 2014 BOD meeting, that Blackfish w as one of the causes of the disappointing Q1 2014
attendance.
41. SWSD was particularly impacted by Blackfish because approximately 75% of
SWSD attendance came from local visitors—the same group that surveys showed was most
aware of Blackfish and most likely to be deterred from visiting a “marine life park” like
SeaWorld as a result.
42. In light of the declining attendance, the survey results, the California legislation,
and further internal analysis indicating that—other than at SeaWorld—amusement park business
in Southern California was booming, a senior official  of SWSD told a senior corporate officer of
SeaWorld on April 21, 2014 that “[t]he situation is grave.”
43. By the time SeaWorld announced its Q1 2014 results in mid-May 2014, there was
additional evidence that Blackfish, particularly its impact at SWSD, was a significant
contributing factor to SeaWorld’s year-over-year decline in attendance.
44. In particular, although poor weather and a shift in the Easter holiday/spring break
also negatively impacted attendance companywide in Q1 2014, SeaWorld’s internal attendance
variance charts showed that attendance declines at SWSD could not wholly be attributed to these
factors.  Indeed, unexplained attendance declines in SWSD contributed nearly 25% of

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SeaWorld’s year-over-year attendance decline companywide at the end of March, and
approximately 50% of the company’s attendance decline by the end of April.
45. Although certain senior SeaWorld officials believed the Q1 2014 attendance
decline to be attributable, at least in part, to Blackfish, when SeaWorld reported its Q1 2014
results, it omitted the Blackfish effect entirely, and instead attributed its weak attendance solely
to factors other than the film, which the Defendants should have known was untrue and/or a
misleading omission of a material fact.
Atchison Failed to Disclose the Blackfish Effect to Underwriters
of the April 9, 2014 Secondary Offering

46. Atchison failed to disclose information about the Blackfish effect from
underwriters of the April 9, 2014 secondary offering.
47. In connection with the April 2014 secondary offering, two underwriters took the
lead on conducting due diligence and informing the company on pricing, investor concerns, and
how to respond to such concerns.  The underwriters asked questions about Blackfish, including
“how the publicity surrounding any of Blackfish, the cancellation of bands . . . or the potential
California legislation has affected the business” as part of their due diligence.
48. Despite the fact that Atchison should have known that SeaWorld’s reputation had
been materially harmed by Blackfish before the April 2014 offering—a fact that the underwriters
considered to be important for investors to know because of the link between reputation and
attendance—he did not disclose this information to the underwriters during the due diligence
calls in which he participated.

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49. Similarly, Atchison did not disclose to the underwriters that SeaWorld’s business
and attendance had been harmed by Blackfish.  Instead, Atchison informed SeaWorld’s
underwriters that Blackfish was not adversely impacting SeaWorld’s business.
SeaWorld’s Disclosure on August 13, 2014
50. On August 13, 2014, SeaWorld, for the first time a cknowledging that negative
publicity connected with Blackfish was impacting attendance, stated in a Form 8-K filing that
attendance in Q2 2014 “was impacted by demand pressures related to recent media attention
surrounding proposed legislation in the state of California.”  Although the disclosure did not
refer to Blackfish by name, it was understood internally, and by the press, analysts, and investors,
that SeaWorld had finally disclosed that Blackfish was negatively affecting its business and that
the Blackfish effect—even if not quantifiably material on a companywide basis at that point—
was qualitatively material to investors.
51. Following the Form 8-K filing, in which the company also included a downward
revision of its earnings guidance for the year, SeaWorld’s stock price fell from $28.15 to
$18.90—a 33% drop—thereby decreasing SeaWorld’s market capitalization by approximately
$830 million.  The announcement also widely caused analysts to downgrade SeaWorld’s stock to
a sell recommendation.
FIRST CLAIM FOR RELIEF
Section 17(a)(3) of the Securities Act
[15 U.S.C. Sec. 77q(a)(3)]
(Against Both Defendants)
52. The SEC realleges and incorporates by reference paragraphs 1 through 51, as
though fully set forth herein.

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53. SeaWorld and Atchison, directly or indirectly, in the offer or sale of securities, by
use of the means or instruments of transportation or communication in interstate commerce or by
use of the mails, acting negligently, employed a device, scheme, or artifice to defraud or to
engaged in a transaction, practice, or course of business that operated or would operate as a fraud
or deceit upon the purchaser.
54. By virtue of the foregoing, SeaWorld and Atchison, directly or indirectly, violated
and, unless restrained and enjoined, will again violate Section 17(a)(3) of the Securities Act.
SECOND CLAIM FOR RELIEF
Section 17(a)(2) of the Securities Act
[15 U.S.C. Sec. 77q(a)(2)]
 (Against Atchison)

55. The SEC realleges and incorporates by reference paragraphs 1 through 51, as
though fully set forth herein.
56. Atchison, directly or indirectly, in the offer or sale of securities, by use of the
means or instruments of transportation or communication in interstate commerce or by use of the
mails, acting negligently, obtained money or property by means of an untrue statement of
material fact or omission to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
57. By virtue of the foregoing, Atchison, directly or indirectly, violated and, unless
restrained and enjoined, will again violate Section 17(a)(2) of the Securities Act.

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THIRD CLAIM FOR RELIEF
Violations of Section 13(a) of the Exchange Act and Rules 12b-20 and
13a-1, 13a-11, and 13a-13
[15 U.S.C. § 78m(a) and 17 C.F.R. §§ 240.12b-20 and 240.13a-1; 13a-11; and 13a-13]
 (Against SeaWorld)
58. The SEC realleges and incorporates by reference paragraphs 1 through 51, as
though fully set forth herein.
59. SeaWorld, which is an issuer of securities registered pursuant to Section 12 of the
Exchange Act, filed reports with the SEC that made untrue statements of material fact or omitted
to state material facts necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
60. By reason of the foregoing, SeaWorld violated and, unless restrained and
enjoined, will again violate Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1, 13a-11,
and 13a-13 thereunder.
FOURTH CLAIM FOR RELIEF
Control Person Liability under Section 20(a) of the Exchange Act [15 U.S.C. § 78t(a)] for
SeaWorld’s Violations of Section 13(a) of the Exchange Act and Rules 12b-20 and 13a-1,
13a-11, and 13a-13
[15 U.S.C. § 78m(a) and 17 C.F.R. §§ 240.12b-20 and 240.13a-1; 13a-11; and 13a-13]
(Against Atchison)
61. The SEC realleges and incorporates by reference paragraphs 1 through 51, as
though fully set forth herein.
62. Atchison, as president, CEO, and a director of SeaWorld, exercised control over
the management, general operations, and polices of SeaWorld, as well as the specific activities
upon which SeaWorld’s violations are based.

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63. By reason of the foregoing, Atchison is liable as a control person under Section
20(a) of the Exchange Act for SeaWorld’s violations of Section 13(a) of the Exchange Act and
Rules 12b-20, 13a-1, 13a-11, and 13a-13 thereunder, and, unless restrained and enjoined, will
again as a control person violate Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1,
13a-11, and 13a-13 thereunder.
RELIEF SOUGHT
WHEREFORE, the SEC respectfully requests that this Court:
I.
Find that each of the Defendants committed the violations alleged in this Complaint;
II.
Enter an Injunction, in a form consistent with Rule 65(d) of the Federal Rules of Civil
Procedure, permanently restraining and enjoining each of the Defendants from engaging in the
transactions, acts, practices, and courses of business alleged in this Complaint and from
violating, directly or indirectly, the laws and rules alleged in this Complaint
III.
Order that Defendant Atchison disgorge any and all ill-gotten gains, together with pre-
judgment interest, derived from the improper conduct set forth in this Complaint;
IV.
Order that each of the Defendants pay civil money penalties pursuant to Section 20(d) of
the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. §§
78u(d)(3)], in an amount to be determined by the Court, plus post-judgment interest;

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V.
Retain jurisdiction over this action to implement and carry out the terms of all orders and
decrees that may be entered; and
VI.
Grant such other relief as this Court may deem just or appropriate.
JURY DEMAND
The SEC demands a trial by jury on all claims so triable.

Respectfully submitted this 18
th
 day of September, 2018.

      /s/ Stephen C. McKenna
Stephen C. McKenna
(Pro Hac Vice Application pending)
Attorney for Plaintiff
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
1961 Stout Street, 17th Floor
Denver, Colorado 80294
(303) 844-1000
[email protected]

STEPHEN C. MCKENNA 
(Pro Hac Vice Application pending) 
[email protected] 
SECURITIES AND EXCHANGE COMMISSION 
1961 Stout Street, 17th Floor 
Denver, Colorado 80294 
(303) 844-1000 
 

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 

 
 
UNITED STATES SECURITIES AND EXCHANGE 
COMMISSION, 
 

Plaintiff, 
 

- against - 
 
SEAWORLD ENTERTAINMENT, INC., and JAMES 
ATCHISON, 
 

Defendants. 
 

 
1:18-cv-_____-________ 

 
COMPLAINT AND JURY 

DEMAND 
 

ECF CASE 

 

Plaintiff, United States Securities and Exchange Commission (the “SEC”), for its 

Complaint against defendants SeaWorld Entertainment, Inc. (“SeaWorld”) and James Atchison 

(“Atchison”) (collectively, “Defendants”), alleges as follows: 

SUMMARY 

1. This Complaint concerns SeaWorld’s and SeaWorld’s former chief executive 

officer (“CEO”) Atchison’s omissions and disclosures relating to the impact of the documentary 

film Blackfish on the company’s reputation and/or business (i.e., “Blackfish effect”).  Blackfish 

was highly critical of SeaWorld’s treatment of its orcas (killer whales).  The film was released in 

theaters in July 2013, and received significant media attention that escalated as the film became 

Case 1:18-cv-08480   Document 1   Filed 09/18/18   Page 1 of 18



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more widely distributed—including via multiple airings on cable television beginning in late 

October 2013. 

2. Between approximately December 20, 2013, and August 13, 2014 (the “Relevant 

Period”), in connection with the offer and sale of SeaWorld securities, SeaWorld and Atchison 

engaged in a course of business that—by failing to disclose the Blackfish effect to investors—

they should have known would operate as a fraud or deceit upon the purchasers of SeaWorld 

stock.   

3. SeaWorld and Atchison should have known by December 20, 2013, that Blackfish 

was having a negative effect on the company’s reputation and/or business relationships, and, as 

the Relevant Period progressed, should have known that the Blackfish effect was becoming more 

pronounced.  Yet the Defendants: 

a. Made untrue or misleading statements or omissions to the press about material 

facts relating to the Blackfish effect in late 2013 and early 2014; 

b. Did not disclose the Blackfish effect in Form S-1 registration statements filed with 

the SEC on or around March 24, 2014, and April 2, 2014, relating to a secondary 

offering of SeaWorld shares by its largest shareholder on April 9, 2014; and 

c. Made untrue or misleading statements or omissions about material facts relating 

to the Blackfish effect during the Relevant Period in periodic filings with the SEC, 

in public statements including earnings releases and calls, and in communications 

with underwriters for the April 9, 2014 secondary offering. 

4. During the same Relevant Period, Atchison also obtained money by means of 

statements that he should have known were untrue statements of material fact and/or contained 

Case 1:18-cv-08480   Document 1   Filed 09/18/18   Page 2 of 18



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omissions of material facts that were necessary in order to make the statements he made not 

misleading.  From January through March 2014, Atchison sold SeaWorld stock pursuant to a 

Rule 10b5-1 trading plan he had entered into prior to the Relevant Period.  SeaWorld’s stock 

price was inflated as a result of the conduct alleged in this Complaint, allowing Atchison to 

avoid losses of approximately $730,860 on his sales. 

5. On August 13, 2014, SeaWorld filed a Form 8-K that, for the first time, 

acknowledged that its declining attendance was, among other factors, partially caused by 

negative publicity connected to Blackfish.  Following the filing of the Form 8-K, SeaWorld’s 

stock price fell approximately 33% and SeaWorld’s stock was significantly downgraded by 

analysts, causing a loss of approximately $830 million in shareholder value.   

NATURE OF THE PROCEEDINGS AND REQUESTED RELIEF 

6. The SEC seeks permanent injunctions against both Defendants enjoining them 

from engaging in the transactions, acts, practices, and courses of business alleged in this 

Complaint and from violating, directly or indirectly, the laws and rules alleged in this Complaint; 

disgorgement of all ill-gotten gains from the unlawful activity set forth in this Complaint, 

together with prejudgment interest, against Atchison; and civil penalties pursuant to Section 

20(d) of the Securities Act of 1933 (the “Securities Act”) [15 U.S.C. § 77t(d)] and Section 

21(d)(3) of the Exchange Act of 1934 (the “Exchange Act”) [15 U.S.C. § 78u(d)(3)] against both 

Defendants.  The SEC seeks any other relief the Court may deem appropriate pursuant to Section 

21(d)(5) of the Exchange Act [15 U.S.C. § 78u(d)(5)]. 

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JURISDICTION AND VENUE 

7. This Court has jurisdiction over this action pursuant to Section 22(a) of the 

Securities Act [15 U.S.C. § 77v(a)] and Sections 21(d), 21(e), and 27 of the Exchange Act [15 

U.S.C. §§ 78u(d), 78u(e), and 78aa].   

8. Venue lies in this Court pursuant to Section 22(a) of the Securities Act [15 U.S.C. 

§ 77v(a)] and Sections 21(d), 21A, and 27 of the Exchange Act [15 U.S.C. §§ 78u(d), 78u-1, and 

78aa].  Certain of the acts, practices, transactions, and courses of business alleged in this 

Complaint occurred within the Southern District of New York and were affected, directly or 

indirectly, by making use of means or instrumentalities of transportation or communication in 

interstate commerce, or the mails, or the facilities of a national securities exchange.  SeaWorld’s 

stock is traded on the New York Stock Exchange (“NYSE”), which is located in the Southern 

District of New York.  In addition, SeaWorld’s largest shareholder during the Relevant Period 

had its principal executive office in New York, New York, where certain activities of 

SeaWorld’s board of directors (“BOD”) were conducted. 

DEFENDANTS 

9. SeaWorld Entertainment, Inc.:  SeaWorld is a Delaware corporation with its 

principal place of business in Orlando, Florida.  It is an amusement park company that, during 

the Relevant Period, operated 11 parks across the United States, including three marine animal 

parks located in San Diego, Orlando, and San Antonio (the “SeaWorld-named parks”) that have 

historically featured live orca performances under the Shamu trademark.  SeaWorld has been an 

SEC-reporting company since April 2013, and its shares are listed on the NYSE (ticker symbol: 

SEAS).   

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10. James Atchison:  Atchison is a resident of Windermere, Florida.  During the 

Relevant Period, Atchison was SeaWorld’s president and CEO, and also served on SeaWorld’s 

board of directors.  In this role, Atchison exercised control over the management, general 

operations, and policies of SeaWorld, as well as the specific activities upon which SeaWorld’s 

violations (as set forth herein) are based.   

FACTS 

The Defendants Should Have Known 
that the Blackfish Effect Was Material to Investors 

 
11. Even before Blackfish was released in theatres in July 2013, SeaWorld’s top 

management was concerned about the film’s potential impact to SeaWorld’s business.  Some 

investors also expressed concern about the film’s potential impact to SeaWorld’s business prior 

to the film’s release.  

12. In August 2013, soon after Blackfish’s theatrical release, SeaWorld reported that 

attendance in the second quarter dropped from the prior year.  At that time, the Company had not 

done a specific assessment of whether a portion of that drop was related to Blackfish.  The 

financial press inquired whether Blackfish was harming attendance.  In response, SeaWorld told 

the press that it could “attribute no attendance impact at all to the movie.”   

13. On August 28, 2013, an article in the financial press suggested that, despite 

SeaWorld’s denial, there might have been a link between Blackfish and SeaWorld’s declining 

attendance.  Immediately following the article, SeaWorld’s share price dropped by five percent 

(5%).  The Defendants should have known that the Blackfish effect, if and when such occurred, 

would be material to investors. 

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In Fall 2013, SeaWorld Measured Harm to Its Reputation 

14. Prior to and throughout the Relevant Period, SeaWorld regularly described its 

reputation in SEC filings as one of its “most important assets,” and linked public perception of 

the company to the possibility of reduced attendance and a negative impact on the company’s 

business and results of operations.  

15. In September 2013, SeaWorld received the results of its annual corporate 

reputation study, which was conducted from August 22–30, 2013.  The results, in Atchison’s 

own words, were “painful”—SeaWorld’s reputation score had fallen by 12.8% on a year-over-

year basis and was the lowest score SeaWorld had measured since beginning the annual study in 

2010.   

16. The study also showed that, among those who were aware of Blackfish, 32% had 

less favorable opinions of SeaWorld as a result (vs. 11% who had more favorable opinions), and 

that even some people who had not heard of Blackfish by name were aware of the film’s anti-

captivity message and might be impacted by it.   

17. The corporate reputation study was presented by the communications department 

staff to SeaWorld’s strategy committee, which included Atchison, on October 17, 2013.  

Following the study, some SeaWorld officers and employees, including members of the 

communications department that oversaw the study, believed that Blackfish had harmed 

SeaWorld’s reputation. 

18. The next week, SeaWorld’s management held a special, day-long meeting to 

address the significant issues affecting SeaWorld’s reputation at the time.  Prior to the special 

meeting, SeaWorld’s communications department determined to exclude the results of the 

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corporate reputation study from the materials presented at the meeting.  As a result, SeaWorld’s 

then chairman of the board never saw the study and was not aware of its results.   

In Late 2013, the Blackfish Effect Was Becoming More Pronounced 
 

19. In late November and early December 2013, following the first television 

broadcasts of Blackfish, a number of high-profile musical acts cancelled their performances at 

SeaWorld and tied the cancellations to Blackfish.  As a senior officer in SeaWorld’s 

communications department put it in an email, SeaWorld’s reputation at that point was 

“positively radioactive.” 

20. By mid-December 2013, SeaWorld had also been informed that a number of 

nationally known promotional partners wished to withdraw from or delay marketing 

arrangements due to their fear of a public backlash associated with Blackfish.  Even SeaWorld’s 

“longest running Partner (25 years)” declined to participate in SeaWorld’s 50th anniversary tour 

because of Blackfish.   

21. In a December 16, 2013 email, Atchison expressed concern about “the recent 

band cancellations and momentum building around [SeaWorld’s] killer whale program.”  He 

linked the building momentum to “the larger distribution [of] Blackfish” and added that he 

suspected “this trend will not diminish anytime soon, as the film will likely gain an Oscar 

nomination when they are announced in mid-January.”  Although SeaWorld at that time was 

experiencing year-over-year revenue growth and only modest declines in attendance, these 

cancellations should have provided confirmation that SeaWorld’s reputation had been materially 

damaged by Blackfish, and that the Blackfish effect was negatively affecting SeaWorld’s 

business relationships.   

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22. In an article published on December 20, 2013, Atchison, while discussing the 

company’s financial performance, provided a quote stating: “As much data as we have and as 

much as we look, I can’t connect anything really between the attention that the film has gotten 

and any effect on our business.”  In light of the reputational damage SeaWorld had measured and 

the ensuing fallout with sponsors and bands that was linked to Blackfish, Atchison should have 

known that his statement was untrue, and/or that his statement contained omissions of material 

facts that were necessary in order to make the statement not misleading. 

23. In addition, in an article published on January 13, 2014, SeaWorld, with 

Atchison’s knowledge and/or approval, provided a quote stating: “[T]here is no truth to the 

suggestion that SeaWorld’s reputation or business has been harmed by Blackfish.”  In light of the 

reputational damage SeaWorld had measured and ensuing fallout with sponsors and bands that 

was linked to Blackfish, SeaWorld should have known that this statement was untrue and/or that 

it contained omissions of material facts that were necessary to make the statement not 

misleading.    

By the Time SeaWorld Announced its Q4 2013 Earnings, 
Blackfish Was Impacting Attendance  

 
24. By approximately January 2014, SeaWorld Orlando staff had begun tallying costs 

and attendance losses related to group events and promotions that were canceled due to 

Blackfish.  The company also began asking questions in bi-weekly consumer surveys to 

determine Blackfish’s impact on consumers’ interest in visiting its parks.   

25. In the first bi-weekly survey, conducted on or about January 16, 2014, the number 

of respondents who were aware of the Blackfish film who were less likely to visit a “marine life 

park” exceeded those who were more likely to visit by a ratio of 2-to-1 (of the 20% of consumers 

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who were aware of Blackfish, 28.1% said they were less likely to visit, while 14.6% said they 

were more likely to visit). 

26. Atchison noted in an email that the actual negative impact might be higher than 

that reflected in the first bi-weekly survey because Blackfish coverage was amplified in 

SeaWorld’s home markets, while the surveys were conducted nationally.   

27. Atchison was correct.  Awareness of Blackfish at the time was significantly 

greater in the San Diego/Los Angeles area (35%), and among those aware of the film the ratio 

between those who were less likely to visit, versus those who were more likely, was 46% to 

11%.  

28. Around the same time, SeaWorld became aware of two (2) third-party surveys 

that yielded similar results to SeaWorld’s own bi-weekly survey.  In every survey—whether 

conducted by SeaWorld or a third-party—respondents who were aware of the film indicated that 

they were less likely to visit SeaWorld or another marine life park as a result of Blackfish. 

29. By approximately February 10, 2014, Atchison knew that Q1 2014 attendance to 

date had declined both on a year-over-year basis and when compared to SeaWorld’s internal 

projections.   

30. In early February, SeaWorld park officials reported to Atchison that Blackfish was 

among the factors negatively impacting attendance at both SeaWorld Orlando (“SWO”) and 

Busch Gardens Tampa (“BGT”).  SWO and BGT were, during the Relevant Period, SeaWorld’s 

two largest parks in terms of attendance. 

31. Corporate Marketing Staff also reported to Atchison that the three “worst things 

we’re seeing right now” impacting SeaWorld’s 2014 performance outlook  were related to 

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Blackfish: (1) Blackfish was impacting the public’s perception of SeaWorld; (2) booking 

performers had become challenging for SeaWorld parks; and (3) SeaWorld had to postpone its 

50th anniversary marketing tour.   

32. On February 20, 2014, SWO and BGT requested—and Atchison approved—a 

special promotional offer intended to offset attendance losses attributed in part to Blackfish. 

33. Notwithstanding the events and data discussed above, on an earnings call on 

March 13, 2014, when discussing Blackfish and the band cancellations, Atchison stated: 

a. “With respect to the impact on our business, I get asked that a lot, too.  And as 
much as we’re asked it, we can see no noticeable impact on our business . . . we 
have seen no impact on the business”; and 
 

b. “With respect to national surveys and data that we collect around our reputation 
efforts and image, there’s awareness of the movie that kind of peaks and drops . . . 
. But our surveys don’t reflect any shift in sentiment about intent to visit our 
parks.”   
 

34. At the time these statements were made, the Defendants should have known that 

the statements were untrue and/or that the statements contained omissions of material fact that 

were necessary in order to make the statements not misleading. 

35. Despite the indicators described above that reflected that SeaWorld had suffered 

reputational harm due to Blackfish and that the reputational harm was negatively impacting 

SeaWorld’s business, on March 24, 2014, SeaWorld filed a Form S-1 registration statement with 

the SEC, signed by Atchison, in which it stated: 

Our brands and our reputation are among our most important assets.  Our 
ability to attract and retain customers depends, in part, upon the external 
perceptions of the Company, the quality of our theme parks and services and our 
corporate and management integrity. . . . An accident or an injury at any of our 
theme parks . . .  that receives media attention, is the topic of a book, film, 
documentary or is otherwise the subject of public discussions, may harm our 
brands or reputation, cause a loss of consumer confidence in the Company, 

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reduce attendance at our theme parks and negatively impact our results of 
operations.  

 
36. By couching the reputation and business impacts as hypothetical events that 

“may” occur, the Defendants made untrue or misleading statements.  The Defendants should 

have known that SeaWorld’s reputation had suffered from Blackfish; should have known that the 

reputational damage was negatively affecting SeaWorld’s business and attendance; and should 

have known that these impacts were material to investors.  The Defendants made similar untrue 

or misleading statements in a Form S-1/A filed on April 2, 2014, and in SeaWorld’s FY 2013 

Form 10-K filed on March 21, 2014. 

37. Securities Act Regulation S-K, Item 303(a)(3)(ii) (“SK-303”) requires issuers, 

such as SeaWorld, to disclose “any known trends or uncertainties that have had or that the 

registrant reasonably expects will have a material favorable or unfavorable impact on net sales or 

revenues from continuing operations.”  Despite the above events indicating that Blackfish either 

was affecting or would affect SeaWorld’s financial performance, SeaWorld never conducted an 

evaluation of Blackfish’s potential impact on SeaWorld’s operational results, or made any 

disclosure regarding the known trends or uncertainties associated with Blackfish under SK-303 in 

connection with the filing of its FY 2013 Form 10-K on March 21, 2014, or its Q1 2014 Form 

10-Q on May 15, 2014.   

By the Time SeaWorld Announced its Q1 2014 Earnings, Blackfish Was a Significant 
Cause of Declining Attendance 

 
38. In early March 2014, a bill to ban orca performances was introduced in the 

California legislature.  The legislation—referred to in the press as the “Blackfish bill”—was yet 

another reaction to the Blackfish documentary and created further bad publicity for SeaWorld. 

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39. At the close of Q1 2014, overall attendance at SeaWorld’s parks declined 

approximately 13% on a year-over-year basis.  By this point in time, SeaWorld should have 

known that Blackfish was a cause of the declining attendance at SeaWorld’s parks.   

40. All three SeaWorld-named parks and BGT (which together generated 

approximately 75% of SeaWorld’s 2013 revenues) had identified, in materials prepared for the 

Q1 2014 BOD meeting, that Blackfish was one of the causes of the disappointing Q1 2014 

attendance.   

41. SWSD was particularly impacted by Blackfish because approximately 75% of 

SWSD attendance came from local visitors—the same group that surveys showed was most 

aware of Blackfish and most likely to be deterred from visiting a “marine life park” like 

SeaWorld as a result.   

42. In light of the declining attendance, the survey results, the California legislation, 

and further internal analysis indicating that—other than at SeaWorld—amusement park business 

in Southern California was booming, a senior official of SWSD told a senior corporate officer of 

SeaWorld on April 21, 2014 that “[t]he situation is grave.” 

43. By the time SeaWorld announced its Q1 2014 results in mid-May 2014, there was 

additional evidence that Blackfish, particularly its impact at SWSD, was a significant 

contributing factor to SeaWorld’s year-over-year decline in attendance.   

44. In particular, although poor weather and a shift in the Easter holiday/spring break 

also negatively impacted attendance companywide in Q1 2014, SeaWorld’s internal attendance 

variance charts showed that attendance declines at SWSD could not wholly be attributed to these 

factors.  Indeed, unexplained attendance declines in SWSD contributed nearly 25% of 

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SeaWorld’s year-over-year attendance decline companywide at the end of March, and 

approximately 50% of the company’s attendance decline by the end of April. 

45. Although certain senior SeaWorld officials believed the Q1 2014 attendance 

decline to be attributable, at least in part, to Blackfish, when SeaWorld reported its Q1 2014 

results, it omitted the Blackfish effect entirely, and instead attributed its weak attendance solely 

to factors other than the film, which the Defendants should have known was untrue and/or a 

misleading omission of a material fact.   

Atchison Failed to Disclose the Blackfish Effect to Underwriters 
of the April 9, 2014 Secondary Offering 

 
46. Atchison failed to disclose information about the Blackfish effect from 

underwriters of the April 9, 2014 secondary offering. 

47. In connection with the April 2014 secondary offering, two underwriters took the 

lead on conducting due diligence and informing the company on pricing, investor concerns, and 

how to respond to such concerns.  The underwriters asked questions about Blackfish, including 

“how the publicity surrounding any of Blackfish, the cancellation of bands . . . or the potential 

California legislation has affected the business” as part of their due diligence. 

48. Despite the fact that Atchison should have known that SeaWorld’s reputation had 

been materially harmed by Blackfish before the April 2014 offering—a fact that the underwriters 

considered to be important for investors to know because of the link between reputation and 

attendance—he did not disclose this information to the underwriters during the due diligence 

calls in which he participated.   

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49. Similarly, Atchison did not disclose to the underwriters that SeaWorld’s business 

and attendance had been harmed by Blackfish.  Instead, Atchison informed SeaWorld’s 

underwriters that Blackfish was not adversely impacting SeaWorld’s business.  

SeaWorld’s Disclosure on August 13, 2014 

50. On August 13, 2014, SeaWorld, for the first time acknowledging that negative 

publicity connected with Blackfish was impacting attendance, stated in a Form 8-K filing that 

attendance in Q2 2014 “was impacted by demand pressures related to recent media attention 

surrounding proposed legislation in the state of California.”  Although the disclosure did not 

refer to Blackfish by name, it was understood internally, and by the press, analysts, and investors, 

that SeaWorld had finally disclosed that Blackfish was negatively affecting its business and that 

the Blackfish effect—even if not quantifiably material on a companywide basis at that point—

was qualitatively material to investors. 

51. Following the Form 8-K filing, in which the company also included a downward 

revision of its earnings guidance for the year, SeaWorld’s stock price fell from $28.15 to 

$18.90—a 33% drop—thereby decreasing SeaWorld’s market capitalization by approximately 

$830 million.  The announcement also widely caused analysts to downgrade SeaWorld’s stock to 

a sell recommendation. 

FIRST CLAIM FOR RELIEF 

Section 17(a)(3) of the Securities Act  
[15 U.S.C. Sec. 77q(a)(3)] 

(Against Both Defendants) 

52. The SEC realleges and incorporates by reference paragraphs 1 through 51, as 

though fully set forth herein. 

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53. SeaWorld and Atchison, directly or indirectly, in the offer or sale of securities, by 

use of the means or instruments of transportation or communication in interstate commerce or by 

use of the mails, acting negligently, employed a device, scheme, or artifice to defraud or to 

engaged in a transaction, practice, or course of business that operated or would operate as a fraud 

or deceit upon the purchaser. 

54. By virtue of the foregoing, SeaWorld and Atchison, directly or indirectly, violated 

and, unless restrained and enjoined, will again violate Section 17(a)(3) of the Securities Act. 

SECOND CLAIM FOR RELIEF 

Section 17(a)(2) of the Securities Act  
[15 U.S.C. Sec. 77q(a)(2)] 

 (Against Atchison) 
 
55. The SEC realleges and incorporates by reference paragraphs 1 through 51, as 

though fully set forth herein. 

56. Atchison, directly or indirectly, in the offer or sale of securities, by use of the 

means or instruments of transportation or communication in interstate commerce or by use of the 

mails, acting negligently, obtained money or property by means of an untrue statement of 

material fact or omission to state a material fact necessary in order to make the statements made, 

in light of the circumstances under which they were made, not misleading. 

57. By virtue of the foregoing, Atchison, directly or indirectly, violated and, unless 

restrained and enjoined, will again violate Section 17(a)(2) of the Securities Act. 

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THIRD CLAIM FOR RELIEF 

Violations of Section 13(a) of the Exchange Act and Rules 12b-20 and 
13a-1, 13a-11, and 13a-13   

[15 U.S.C. § 78m(a) and 17 C.F.R. §§ 240.12b-20 and 240.13a-1; 13a-11; and 13a-13]  
 (Against SeaWorld) 

58. The SEC realleges and incorporates by reference paragraphs 1 through 51, as 

though fully set forth herein. 

59. SeaWorld, which is an issuer of securities registered pursuant to Section 12 of the 

Exchange Act, filed reports with the SEC that made untrue statements of material fact or omitted 

to state material facts necessary in order to make the statements made, in light of the 

circumstances under which they were made, not misleading. 

60. By reason of the foregoing, SeaWorld violated and, unless restrained and 

enjoined, will again violate Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1, 13a-11, 

and 13a-13 thereunder. 

FOURTH CLAIM FOR RELIEF 

Control Person Liability under Section 20(a) of the Exchange Act [15 U.S.C. § 78t(a)] for 
SeaWorld’s Violations of Section 13(a) of the Exchange Act and Rules 12b-20 and 13a-1, 

13a-11, and 13a-13   
[15 U.S.C. § 78m(a) and 17 C.F.R. §§ 240.12b-20 and 240.13a-1; 13a-11; and 13a-13]  

(Against Atchison) 

61. The SEC realleges and incorporates by reference paragraphs 1 through 51, as 

though fully set forth herein. 

62. Atchison, as president, CEO, and a director of SeaWorld, exercised control over 

the management, general operations, and polices of SeaWorld, as well as the specific activities 

upon which SeaWorld’s violations are based.  

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63. By reason of the foregoing, Atchison is liable as a control person under Section 

20(a) of the Exchange Act for SeaWorld’s violations of Section 13(a) of the Exchange Act and 

Rules 12b-20, 13a-1, 13a-11, and 13a-13 thereunder, and, unless restrained and enjoined, will 

again as a control person violate Section 13(a) of the Exchange Act and Rules 12b-20, 13a-1, 

13a-11, and 13a-13 thereunder. 

RELIEF SOUGHT 

WHEREFORE, the SEC respectfully requests that this Court: 

I. 

Find that each of the Defendants committed the violations alleged in this Complaint;  

II. 

Enter an Injunction, in a form consistent with Rule 65(d) of the Federal Rules of Civil 

Procedure, permanently restraining and enjoining each of the Defendants from engaging in the 

transactions, acts, practices, and courses of business alleged in this Complaint and from 

violating, directly or indirectly, the laws and rules alleged in this Complaint 

III. 

Order that Defendant Atchison disgorge any and all ill-gotten gains, together with pre-

judgment interest, derived from the improper conduct set forth in this Complaint;  

IV. 

Order that each of the Defendants pay civil money penalties pursuant to Section 20(d) of 

the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. §§ 

78u(d)(3)], in an amount to be determined by the Court, plus post-judgment interest;  

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V. 

Retain jurisdiction over this action to implement and carry out the terms of all orders and 

decrees that may be entered; and 

VI. 

Grant such other relief as this Court may deem just or appropriate.   

JURY DEMAND 

The SEC demands a trial by jury on all claims so triable. 

 
 
Respectfully submitted this 18th day of September, 2018. 
 

 
      /s/ Stephen C. McKenna     

Stephen C. McKenna  
(Pro Hac Vice Application pending) 
Attorney for Plaintiff 
UNITED STATES SECURITIES AND 
EXCHANGE COMMISSION 
1961 Stout Street, 17th Floor 
Denver, Colorado 80294 
(303) 844-1000 
[email protected] 

 

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