Killer whales in Sea World, San Diego, California, on Jan. 17, 2016. Photo: Shutterstock

SeaWorld and its former CEO, James Atchison, entered into a $5 million fraud settlement with the Securities and Exchange Commission over charges the company misled investors over the impact the Oscar-winning documentary film ”Blackfish” had on the aquatic theme park's public reputation and business, regulators announced Tuesday.

In its filing in the Southern District of New York, the SEC referred to the “'Blackfish' effect” the 2013 documentary had on SeaWorld's bottom line. A highly critical portrait of SeaWorld's practices related to its iconic orca population, the documentary led to significant media attention directed at the company.

According to the SEC, SeaWorld and Atchison should have known by December 2013, months after the film's release, that the film's depiction of the captive orcas' conditions that led to a number of attacks on trainers, including the 2010 death of Dawn Brancheau at the company's Orlando, Florida, park, would have a negative effect on the company.

Between December 2013 and August 2014, when SeaWorld filed a periodic report for the first time acknowledging declining attendance connected in part to negative public reaction to the documentary, regulators claim the company was aware internally of issues related to the film, but provided public statements to the contrary. For example, in December 2013, the SEC said Atchinson sent an internal email expressing concern that the film had led a number of musical acts to cancel performances at its parks, which tracked with a wider negative public view over its orca program.

He suspected, according to the complaint, that “this trend will not diminish anytime soon, as the film will likely gain an Oscar nomination when they are announced in mid-January.”

Despite these internal pronouncements, Atchinson wrote in an article that same month that no data the company had available “connect anything really between the attention that the film has gotten and any effect on our business.” A month later, in January 2014, the company issued a statement—one regulators said Atchinson approved—that claimed there was “no truth to the suggestion that SeaWorld's reputation or business was harmed by 'Blackfish.'”

To the contrary, the company's own surveys of consumers around the same time showed that those aware of the film were less likely to visit a marine life park by a ration of 2-1 over those who said they were more likely. By February, the company knew attendance to date had declined both on a year-over-year basis, as well as compared to SeaWorld's own internal projections, the complaint states.

Yet despite this information, Atchinson stated during an earnings call in March 2014 that SeaWorld could see “no noticeable impact on our business.”

In as statement, Steven Peikin, co-director of the SEC enforcement division, said the case underscored the need for a company to provide investors with timely and accurate information that has an adverse impact on its business.

“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,” Peikin said.

Additionally, regulators said Atchinson failed to disclose the 'Blackfish' effect to underwriters ahead of an April 2014 secondary offering. Despite being asked directly about the movie's impact on the company's business, Atchinson did not disclose information he should have known showed the negative consequences the company was facing over the movie.

When the company ultimately acknowledged its situation in August 2014, it saw its stock price drop by a third, decreasing its market capitalization by approximately $830 million and setting off a downgrade by analysts to sell, the SEC said.

As part of the settlement, the company itself agreed to pay a $4 million penalty, while Atchinson agreed to a $1 million penalty plus the disgorgement. In a statement sent by a company spokesman, SeaWorld acknowledged the settlement, without admitting or denying the allegations, and said it cooperated with the SEC throughout the process.

“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,” the statement read.

Simpson Thacher & Bartlett partners Jonathan Youngwood and Stephen Cutler led SeaWorld's legal representation in the matter.

Katten Muchin Rosenman partner Michael Diver and managing partner Gil Soffer represented Atchinson in the matter. Neither responded to a request for comment on behalf of their client.

Related:

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Simpson Spears SeaWorld Suit Over 'Blackfish' Effect