Sesame Place Class Action 'Has Legs,' but Attorneys Expect It to Settle

Sesame Place Class Action 'Has Legs,' but Attorneys Expect It to Settle

The characters are the company," Michael Walker said. "With the people behind the masks, in the costumes, it's hard to see them as employees. This is your brand. These are your characters. The characters are what have portrayed themselves in a bad light. To see that, it breaks your heart."


A lawsuit filed in Pennsylvania federal court last week by a Black family allegedly discriminated against at Sesame Place in an incident that has since gone viral is likely headed toward settlement, according to outside legal observers.


The lawsuit, filed in the U.S. District Court for the Eastern District of Pennsylvania by attorneys in Pittsburgh, Harrisburg and Baltimore, alleges race discrimination under U.S. Code Section 1981, breach of contract and negligence after an actor in a Rosita costume appeared to ignore and wave off two Black girls, both 6 years old.


Video of the incident went viral after Jodi Brown, the mother of one of the girls, posted a video of it on Instagram, and since then numerous other videos have surfaced appearing to show characters at the Bucks County amusement park, as well as other parks owned by its parent company SeaWorld Parks & Entertainment, ignoring other Black children, and in one instance even knocking a child over.


In the immediate wake of the incident, Sesame Place issued an apology, but has since found itself the subject of protests and has been denounced by the NAACP.


Along with seeking compensatory and punitive damages, the proposed class action lawsuit, filed July 27 by the same firm that negotiated a $6.4 million settlement on behalf of the family of Freddie Gray, seeks for the company to make systemic changes to its hiring and training practices.


‘How Far Does This Go?’

Given the number of incidents that have emerged and the damage that is at stake for Sesame Place, attorneys say it is likely the company will want to settle the case early in the litigation.


“The question is does this happen at concessions? When you’re waiting in line? How far does this go? Once the class is certified and discovery is opened, it’s fair game,” Berger Montague’s Reginald Streater, who focuses on labor and employment, consumer protection and collective action law, said. “A case like this might have legs in this circuit … but there’s reputational harm even if this case doesn’t go anywhere."


According to lawyers, one key focus for the litigation will likely be on the company’s hiring and training practices, with Sesame Place likely attempting to claim these incidents are isolated and only due to a handful of problematic front-line employees, rather than a systemic issue at the company.


On the other side, counsel for the plaintiffs—Murphy Falcon Murphy in Baltimore, The Trial Law Firm in Pittsburgh and Duncan Legal Group in Harrisburg—will likely be looking for anything suggesting a common pattern and practice of discriminatory behavior.



Specifically, Streater said, the plaintiffs will be looking for any decision-makers who were aware of potential discrimination problems, but failed to address those concerns.


But, even without finding a specific problematic decision-maker, discovery in general is likely something the company would want to avoid, since it always comes with the risk of having other practices, policies and trade information aired in public.


“There may be embarrassing things that could be on those documents,” Streater said.


Philadelphia civil rights attorney Michael Walker agreed that information about the training and hiring practices will be key, but another significant factor will be the reputational harm Sesame Place faces, and will continue to face, if the case gets contentious.


“Like most big companies when this happens, once that first news cycle stops, they don’t want it to ramp back up by going into court,” Walker said. “There’s protests and picketing, and kids are crying. That’s not the narrative you want.”


‘The Characters Are the Company’

Sesame Place is particularly susceptible to this type of harm, given its brand and the characters at issue in the incidents, Walker noted.


Since it first aired in 1969, Sesame Street has been at the forefront of championing ideas about inclusion and diversity, so the recent conduct flies directly in the face of the brand’s long-standing reputation. And driving home that point is the fact that the brand is synonymous with its characters, characters who are now featured in numerous videos appearing to engage in discriminatory conduct. So even if the company admits to hiring a few bad workers, the perception that these characters committed the conduct is still out there, Walker said.


“The characters are the company,” Walker said. “With the people behind the masks, in the costumes, it’s hard to see them as employees. This is your brand. These are your characters. The characters are what have portrayed themselves in a bad light. To see that, it breaks your heart.”


One area in which Sesame Place might seek to push back, according to Walker, would be damages, potentially arguing that they are speculative, and that the children would not have dwelt on the experience after the fact. Walker said he did not think those arguments would hold water, but beyond that, he said Sesame Place likely would not want to push the litigation that far, since it would require discovery, court appearances and further damaging public relations.


Attorneys also agreed that bringing the suit as a class action makes it less straightforward than a typical civil rights case since the plaintiffs will need to find enough people with similar claims to establish both commonality and numerosity.


While social media and the national attention will likely be helpful in surfacing more claims for the litigation, class certification is ultimately something the court will have to wrestle with. But in terms of having an impact, bringing the claims as a class action makes sense, Streater said.


“If it’s one person, it might not be enough to make wholesale changes … to really send a message to a big defendant,” Streater said. “But if, say, 500 families come forward and they all paid the cost of admission and had similar experiences, that might be enough to say we’re going to be putting that diversity, equity and inclusion, or other restorative training programmatic relief into being.”


Streater also noted that the Section 1981 civil rights statute allows for fee shifting, so, in addition to any damages, Sesame Place would be on the hook for the plaintiffs’ fees as well.


“That would have to be part of the calculation,” Streater said.


Social media has also played an integral role in fueling the litigation, and it could further impact the litigation going forward, the attorneys agreed. Not only could the viral nature of the claims help make potential claimants aware of the case, the lightning-fast speed with which viral stories travel may also push Sesame Place to speed up its decision-making process in how it wants to handle the case, and its related public relations.


“It behooves Sesame Place to get in front of this thing, by owning up to their mistakes, by taking complete responsibility and change the narrative,” Walker said.

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