Twenty-seven years ago, a western lowland gorilla named Ndume was loaned by the Cincinnati Zoo to The Gorilla Foundation in Woodside, Calif. For the next 26 years he was companion to Koko, a gorilla famous for her use of sign language. When Koko passed away last June, Ndume was left without a companion. Because gorillas are social animals that should not be isolated from other gorillas, the loan agreement required that, upon Koko’s death, Ndume would be transferred to an appropriate zoo to live with other gorillas. Per the loan agreement, it was decided that Ndume would return to the Cincinnati Zoo. The Gorilla Foundation ultimately refused to go forward, arguing that Ndume was too old to be shipped and would likely die if he were returned to Cincinnati. The zoo made the decision to go into federal court to seek Ndume's return so he could be with other gorillas in Cincinnati. Animal loan agreements are critically important to the protection of endangered species in human care. If the terms of this loan agreement were not vindicated, it could have damaged the ability of zoos and other institutions to care for and protect gorillas and other endangered species. The Association of Zoos and Aquariums and People for the Ethical Treatment of Animals gave strong encouragement and support to the zoo’s position.
What made this litigation unusual – beyond the fact that it involved a gorilla – was the speed with which the Taft team, led by Cincinnati partners Aaron Herzig and Stuart Dornette, achieved complete victory for the Cincinnati Zoo. The zoo filed suit in the U.S. District Court for the Northern District of California in October 2018, attempted mediation in the first week of January, and won summary judgment in February 2019 – exactly 100 days from complaint to judgment. In preparation for mediation and summary judgment, Taft coordinated obtaining opinions from several leading internationally recognized primate experts on a very compressed schedule. After negotiation of a transfer agreement and order, which was enforced by two additional court orders obtained by Taft, Ndume returned to the Cincinnati Zoo in June 2019, without incident.
Nearly seven months later, Ndume is, according to a recent Cincinnati Enquirer article, content and adapting well to his surroundings. He will likely be introduced to the public sometime in 2020.
Herzig and Dornette were assisted on this matter by Cincinnati associates Dorie Akers and Drew Spievack.
Herzig is a leader of Taft’s appellate practice. He briefs and argues appeals in federal and state courts, and counsels clients regarding complex federal practice and appellate matters. Dornette has substantial experience in complex litigation in state and federal courts within and outside Ohio.