“CDI argues that an injunction would force it to 'reallocate' points and 'deprive' owners of their existing 'berths,'” Baffert's Jan. 20 filing in United States District Court (Western District of Kentucky) stated. “CDI's rules vacate points earned by Baffert-trained horses; it does not redistribute them.”

CDI, in its Jan. 17 filing that urged a federal judge not to grant an injunction that would lift the ban in time for the May 6 Derby, had brought up the issue of Derby points as an example of purported harms to others.

The CDI filing had alleged that an injunction and possible points reallocation would “retroactively” deprive “innocent third parties, who have played by the rules.”

The Baffert filing took umbrage with that position, stating that, “an injunction here would simply require CDI to recognize existing merit and permit owners to earn qualifying points under Baffert (rather than with different trainers), it would not take away from others.”

At a later point, Baffert's filing stated, “CDI fails to address how existing rules applicable to all trainers are insufficient to protect its qualifying structure, given that a condition of receiving points is compliance with that race's medication rules.

“In addition, CDI's decision merely to vacate the points awarded to a horse who fails a drug test in a Derby-qualifying race rather than to refuse the horse's or trainer's entry belies its claim that banishment is the only means by which it can protect its business and reputation when a medication violation associated with the Kentucky Derby occurs,” Baffert's filing continued.

The disagreement over Derby qualifying points is only a small part of a wider-ranging, much more complex lawsuit.

Baffert is attempting to reverse the second year of a two-year ban CDI imposed in 2021 because of a string of drug positives in horses he trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and the 2021 Derby.

Baffert's trainees have crossed the finish wire first a record seven times in the Derby.

But it was that seventh Derby winner-Medina Spirit-who triggered Baffert's banishment by CDI when the colt tested positive for betamethasone, a Class C drug, in a 2021 post-Derby test.

CDI told Baffert in June 2021 that he would be ineligible to race at its six U.S. tracks until after the 2023 Derby, and that any horse that raced under his training license would not be eligible to accrue qualifying points to get into the 2022 or 2023 Derbies.

Baffert had initially sued CDI on Feb. 28, 2022, alleging civil rights violations related to what Baffert said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

Separately, Baffert fought unsuccessfully in the courts to try and stave off a 90-day suspension for Medina Spirit's drug overage that had been imposed upon him in February 2022 by the Kentucky Horse Racing Commission (KHRC). As a result, he had to transfer his stable to other trainers and did not get to saddle any horses in the 2022 Derby while serving his suspension.

And even though that KHRC suspension has already been served, Baffert is appealing that ruling in an effort to expunge the violation from his record and to reverse Medina Spirit's disqualification.

Baffert renewed his court quest to run in the 2023 Derby on Dec. 15, 2022, asking for an injunction that would “work no hardship” on CDI.

The two sides have been trading court filings over the past week in preparation for a Feb. 2 preliminary injunction hearing.

The Jan. 17 filing by CDI had stated that, “Baffert refuses to accept responsibility for his wrongful actions [and now], as the two-year anniversary of his CDI suspension approaches, Baffert has renewed his motion in a brazen attempt to litigate his way into the 2023 Kentucky Derby. This belated, tactical, and meritless motion should meet the same fate as his prior unsuccessful efforts to challenge his suspension.”

Baffert's legal filing from Jan. 20 stated that CDI's written response “addresses claims and inferences that bear little to no resemblance to Baffert's arguments. In the select instances CDI attempts to address Baffert's assertions directly, it deflects attention to inapposite cases. Baffert's arguments are meritorious on their own terms, and CDI's attempts to lead this Court astray should fail.”

The post Baffert: CDI ‘Appears to Misunderstand’ Its Own Derby Qualifying Rules appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

In accordance with the California Horse Racing Board regulations, signage was being removed from his barn at Santa Anita on Friday afternoon, and his suspension is scheduled to start Monday, Apr. 4.

“Tthe motion for emergency relief under CR 65 07(6) is DENIED,” writes Jones in her opinion. “The Court emphasizes that it makes no determination of the merits of Baffert's contentions of error The underlying motions for interlocutory relief along with any additional, dispositive motions shall be assigned to a three-Judge panel of this Court following expiration of the response time prov1ded in the Civil Rules.”

“In his Amended Complaint,” the document says, “Baffert asserted two causes of action against the Racing Commission; (1) an appeal of the Racing Commission's ruling denying him a stay pursuant to KRS 230 320(2)(f), and (2) a claim for injunctive relief pursuant to CR 65 04. Having carefully reviewed the record in conjunction with the applicable statutes and regulations, the Court concludes that the statutory right to appeal to circuit court pursuant to KRS 230 320(2)(f) provides an adequate remedy at law, such that equitable forms of relief, including the requested 1 7 emergency stay, are presently unavailable. There can be no irreparable injury where, as here, the General Assembly has provided adequate administrative remedies.”

This story will be updated.

The post Baffert, Zedan’s Motion for Emergency Stay Denied appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The ruling was filed Monday afternoon by Judge Thomas Wingate, who wrote that Baffert met none of the requirements necessary for relief, and that it wasn't the job of the court to make the decision.

On February 21, 2022, nine months after the Derby, the KHRC stewards disqualified Medina Spirit and suspended Baffert for 90 days. Baffert and Medina Spirit's owner, Amr Zedan, appealed the ruling and petitioned KHRC Executive Director Marc Guilfoil for a stay. On Feb. 25, Guilfoil denied that request. On Feb. 28, Baffert and Zedan moved the KHRC for a stay. On March 17, in Franklin County Court, the plaintiffs and the KHRC presented their arguments.

“Under KRS 230.320(2)(f), the role of this Court's review is not to make an independent decision,” the document states. “By statute, Guilfoil was charged with determining whether good cause existed to issue the requested stays. Guilfoil provided the reasoning behind his decision to the Court on March 17, 2022, and the Court holds that Guilfoil did not act arbitrarily or abuse his discretion in denying Plaintiffs' requests for stays. Guilfoil cited the role of the KHRC, as crafted by the General Assembly, and Baffert's four (4) medication positives in the past 365 days”

The judge ruled that Baffert had not demonstrated irreparable injury which would be caused by the suspension, which he said was unlike the cases of other athletes presented by the plaintiffs. “Athletes have a finite period of eligibility or peak performance,” the ruling states, making the distinction between his horses, who could still compete, and himself, who could return to his coaching role after the suspension. “However, Baffert is not an athlete. He is a trainer, much more akin to a coach. Unlike certain athletes whose careers are subject to a small window of eligibility or period of peak performance, Baffert's career has spanned decades and will continue following this brief suspension.”

The judge said that the suspension would begin on April 4. “The Court understands the gravity of this ruling on Plaintiffs,” the document reads. “Accordingly, the Court will alleviate this impact by staying the implementation and enforcement of Stewards Rulings 21-0009 and 21-0010 until April 4, 2022. In the interim, Plaintiffs may seek emergency relief with the Kentucky Court of Appeals and take any necessary action to comply with the ramifications of the penalties imposed. However, absent relief from a reviewing court, the penalties imposed by Stewards Rulings 21-0009 and 21-0010 shall take effect on April 4, 2022.”

This story will be updated.

The post Baffert Stay Denied by Franklin County Judge appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Trainer Bob Baffert is facing a 90-day suspension and $7,500 fine for now-deceased Medina Spirit's betamethasone overage in the 2021 Derby. Owner Amr Zedan has been ordered by the KHRC to forfeit his colt's purse winnings. But the DQ of Medina Spirit from America's most important horse race will affect both men beyond those penalties, their Feb. 28 court filings argued.

“If I am suspended, I will be prevented from entering horses to race anywhere in the United States,” Baffert stated in an affidavit that accompanied an amended civil complaint and a request for a temporary injunction against the KHRC's rulings. “This is because any suspension imposed by Kentucky will be recognized through the reciprocal arrangements between the racing jurisdictions of each state. Certain races only come around once a year and are limited to horses of a particular age. Every day that I am prevented from entering horses in races is one day of lost opportunity that I can never regain, and for which I will be harmed.”

Baffert's KHRC suspension is set to run Mar. 8 through June 5. He has appealed the Feb. 21 ruling. But on Feb. 25 the KHRC denied him a stay against enforcing the penalties. Such stays are a common–but not mandatory–practice at most state racing commissions unless the infraction is considered overly egregious or if the penalized person is deemed to be dangerous.

“Moreover, any suspension will likely have the effect of harming my business for a significant period of time much longer than the suspension itself,” Baffert stated. “The suspension will precipitate horses currently in my care–worth tens of millions of dollars–being moved to other trainers because their owners cannot allow those horses to be excluded from participation in the lucrative races. This will effectively put me out of business in all states.”

Monday's filings by Baffert and Zedan in part amended their initial June 7, 2021, complaint in Franklin County Circuit Court that initially sought an injunction to keep the KHRC from allegedly violating their due process rights. The new version Feb. 28 asked for four forms of legal relief:

“1) For an Order of this Court granting Plaintiffs' appeal pursuant to KRS 230.320(2)(f) and staying Stewards Rulings 21-0009 and 21-0010 pending their appeal; 2) For an Order of this Court granting Plaintiffs an injunction pursuant to Civil Rule 65.04 staying Stewards Rulings 21-0009 and 21-0010 pending their appeal; 3) For their costs herein expended, including reasonable attorney fees; and 4) Any and all other relief to which they may appear entitled.”

The amended complaint outlined for the judge how the process of appeals and stays is supposed to work, according to the plaintiffs' perspective.

“Typically, given the preliminary nature of a Stewards Ruling, the KHRC stays any implementation of penalties imposed therein until all appeals are exhausted and there is a final and binding decision. This is in large part because the KHRC recognizes that irreparable harm will be suffered by licensees if they are forced to presently suffer the consequences of a ruling that is subject to being reversed later. For example, a trainer who is forced to serve days of a suspension now cannot ever get those days back if the ruling imposing the suspension is subsequently vacated.”

At a later point in the document, it explained, “Absent a stay of the Stewards Rulings, Zedan will be forced to return purse monies and Baffert will be prevented from pursuing his chosen profession and enjoying the fruits of his labor through the exercise of his state issued occupational license, in addition to having his reputation tarnished.”

The complaint also raises a new issue: That the KHRC is allegedly exceeding the suspension time frame that it is allowed to impose on Baffert for this sort of infraction..

“Further, even if a suspension was appropriate (which it is not), the KHRC rules only provide for a 30-60 day suspension and not 90 days,” the filing stated, citing 810 KAR 8:030, Section 4(3)(a). “Thus, even in the light most favorable to the KHRC, the suspension is unlawfully long.”

As the plaintiffs put it, such a purportedly unlawful suspension would unleash a cascade of irreparable harm upon the Hall of Fame conditioner.

“The owners of the horses Baffert trains, many of whom are at the pinnacle of the global Thoroughbred racing industry, are currently making decisions to protect their ability to race at numerous upcoming races, including the Triple Crown. A 90-day suspension would prevent Baffert from participating in the Triple Crown. Any suspension of Baffert which impacts his ability to enter horses in races across the country, including the Triple Crown, negatively impacts those decisions…”

As Baffert put it in his affidavit, “In California, where I am based, any suspension over 60 days will require me to vacate my barns and remove all signage. As a result, I will be effectively put out of business.

“Graded stakes are the most elite races and a Grade I stakes race is the highest level of racing in the industry. Graded stakes generally offer the largest purses, and are intended to showcase the best horses in the industry. All three Triple Crown races are Grade I stakes races. A 90-day suspension will prevent me from participating in any of those races in 2022.”

(Note: The GI Belmont S., the third leg of the Triple Crown, is scheduled this year for June 11, which actually falls outside of Baffert's KHRC penalization period.)

TDN could not obtain a comment from the KHRC prior to deadline for this story. The KHRC in the past has reiterated that it does not comment on pending litigation.

The post Baffert: Without Stay, KHRC Suspension Will ‘Effectively Put Me Out of Business’ appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

(Read our recaps of previous hearing sessions here, here, here, and here.)

Closing arguments largely reviewed the evidence heard from witnesses over the previous four days. Henry Greenberg, representing NYRA, reiterated the company's concerns were not just based on the six drug violations Baffert picked up in 14 months or the fact that he had two adjudicated violations and an additional, unheard case on Grade 1 races, but also his public handling of those cases.

“He's got a playbook,” said Greenberg. “…Misstate facts, blame others, and avoid responsibility.

“Amongst the Derbies he has won is the Excuse Derby.”

Greenberg also pointed out that while Baffert's attorneys made much of the fact his drug violations took place outside the state of New York and resulted in no penalties by the New York State Gaming Commission. In fact, Greenberg said, as the owner of NYRA Bets, NYRA takes an interest in integrity issues which impact racing outside New York as well as customers wagering from out of state, and that those comprise a majority of the company's business.

W. Craig Robertson, summarizing Baffert's case for the defense, took issue with what he characterized as inaction by NYRA in previous cases, saying the organization's “hypocrisy knows no bounds.” Rick Dutrow, who was handed and ultimately made to begin serving a 10-year suspension, was allowed to continue racing there while he was appealing the case, and Linda Rice, who had her license revoked with the condition she not reapply for three years, is still saddling horses at its tracks. (Greenberg would later point out that Rice has a temporary restraining order in place preventing that license revocation from becoming active.)

Robertson also pointed to the case of Wayne Potts. NYRA said this week it had launched an investigation into the trainer's status following a report he refused to let one of his horses be loaded onto an equine ambulance in New Jersey this summer. When the Maryland Jockey Club determined in 2020 that Potts had been program training for embattled colleague Marcus Vitali however, NYRA released a statement saying, in part, that it would not revoke his entry privileges because he'd had no license taken against his license in that case.

Vitali will be facing a similar hearing to Baffert regarding possible suspension from NYRA in March.

Robertson said the racetrack ownership group seemed uninterested in Baffert's previous drug cases until last year's Kentucky Derby.

“That's what this case is all about,” he said. “Make no mistake about it, Your Honor. This case is about the Kentucky Derby and nothing else.”

“What are they so upset about?” said Robertson. “It comes down to a press conference and three interviews … A man wearing his heart on his sleeve, and now they want to crucify him for it.”

Robertson said Baffert's career was in the hands of Justice O. Peter Sherwood, pointing out that a suspension from NYRA facilities would negate his ability to ever win another Triple Crown.

Greenberg did not apparently dispute that the Derby and Baffert's subsequent mainstream media interviews which Greenberg said impugned racing officials' credibility was a tipping point for NYRA.

“Here's what we would expect [of Baffert after the Derby] — that he'd honor the profession that has been so good to him,” said Greenberg “That he comport himself with dignity. That if he made a mistake, it's not a shameful thing to say, 'I'm sorry. I regret it. I'll do better in the future.' That's all we'd expect, that's all anyone would expect. And what we saw was the exact opposite.”

The procedures handbook set out by NYRA indicates that following the conclusion of the hearing, Sherwood will issue a hearing report which will be disseminated to both sides' attorneys and a panel of people appointed by NYRA's president. From there, both sides have one week to submit additional evidence or disagreements with the contents of the report. The panel will review Sherwood's report and any additional materials filed, and will “have the discretion to adopt, modify or reject any or all of the hearing officer's report, including, but not limited to, the appropriate disposition of the proceeding.”

There are ten days allocated for that review process, after which the panel will issue a final decision which is not appealable within NYRA's oversight.

The post NYRA Vs. Baffert Hearing Concludes; Several Steps Remain Before A Decision appeared first on Horse Racing News | Paulick Report.

Source of original post

The Jan. 27 hearing was part of the ongoing proceeding held by the New York Racing Association before a hearing officer to determine whether NYRA can suspend the trainer on a private property basis.

Baffert did not specify whether the Feb. 7 date was a stewards' hearing or a hearing before the full commission. Stewards' hearings in Kentucky are not open to the public.

Eight days after the Kentucky Derby, Baffert held a press conference to announce that he had been informed Medina Spirit had tested positive for the corticosteroid betamethasone. A split sample test later confirmed the presence of the drug. For many months afterwards, Baffert's legal team worked with drug testing experts to do further examinations of the remainder of the split sample to establish whether the betamethasone came from an injected treatment or a topical administration of Otomax. Attorneys have recently indicated that testing has provided results consistent with exposure to Otomax.

The post Baffert: Kentucky Horse Racing Commission Has Hearing Scheduled In Medina Spirit Case For Feb. 7 appeared first on Horse Racing News | Paulick Report.

Source of original post

The original version of the suit, led by Michael Beychok, the winner of the 2012 National Horseplayers Championship, was filed four days after Baffert's disclosure that now-deceased Medina Spirit (Protonico) had tested positive for betamethasone after winning the May 1 Derby.

Split-sample testing at two different labs approved by the Kentucky Horse Racing Commission (KHRC) has since confirmed the betamethasone overage, but no (KHRC) ruling has yet been issued over those findings.

The plaintiffs and class members of the suit have alleged that they “have been cheated out of their property” because they placed wagers on other horses and betting combinations that would have paid off had “the drugged horse” not won the Derby.

“The Plaintiffs here are not asking this Court to determine the outcome of the Kentucky Derby,” Beychok, et al, argued in the Dec. 29 filing in United States District Court (District of New Jersey).

“The stewards of the subject race will be the ones to determine the outcome of the Kentucky Derby. Regardless of the stewards' determination, Defendants have still harmed the Plaintiffs and will continue to harm individuals through Baffert's racketeering scheme. The Court is being asked to hold the Defendants accountable for the racketeering enterprise,” the filing stated.

In addition to asking the court to consider the Derby's potential pari-mutuel payouts as an assessment of damages, the plaintiffs, among other demands, are also seeking an order from the judge stating that the Hall of Fame trainer must divest himself from the sport. Baffert, plus his incorporated racing stable, remain as the only defendants after Medina Spirit's owner, Amr Zedan, was dropped from the suit by the plaintiffs back on June 23.

When Baffert asked the court to dismiss the suit Sept. 1, his filing stated that the plaintiffs “are a group of disgruntled gamblers who placed bets on the 2021 Kentucky Derby and lost.”

Baffert's argument stated that the bettors “attempt to do what courts across the country have routinely rejected: they seek to recoup their gambling losses through a myriad of frivolous claims. No matter how creatively the Plaintiffs attempt to craft their pleadings, they cannot escape the fact that every single court which has looked at gambling losses associated with sporting events has held that no claim can be maintained as a matter of law.”

The class action members begged to differ in Wednesday's filing.

“[Baffert] would have the Court believe that there is no injury because Medina Spirit has yet to be disqualified. The disqualification of Medina Spirit is inconsequential to Plaintiffs' causes of action. The [Racketeer Influenced and Corrupt Organizations Act] violations occurred regardless of Medina Spirit being disqualified. As alleged, Baffert entered Medina Spirit illegally [and] the Baffert enterprise has already successfully harmed Plaintiffs. Once again, Baffert has profited while the Plaintiffs have been robbed of their day at the track.”

The Dec. 29 filing continued: “Plaintiffs have stated causes of action that do not rely upon the horse racing regulations but instead are independent claims existing under federal and state statutory law and state common law. These claims are allowed whether they are allowed under the regulations or not. Defendants argue that Plaintiffs were obligated to follow the rules but side-step any obligation of Baffert's accountability.

“Baffert suggests to the Plaintiffs that if they don't like the rules they don't have to bet. But more to the point, if Baffert doesn't want to be held accountable under the laws set forth by the federal and state legislatures, then he shouldn't conduct an illegal enterprise of racketeering and fraud,” the filing stated.

The post Class-Action Bettors Urge Judge Not to Dismiss Derby Suit Against Baffert appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

That figure represents only a partial award. The Hall-of-Fame trainer had been seeking $162,086.

NYRA had argued that he wasn't entitled to any money based on the fact that the overall case has not been fully adjudicated.

But Judge Carol Bagley Amon of United States District Court (Eastern District of New York) wrote in a Dec. 15 order that Baffert does indeed qualify for some reimbursement, quoting from relevant precedents in her ruling.

“First, the preliminary injunction was decided on the merits of Baffert's claims. Over 10 pages of [my] 27-page preliminary injunction opinion were dedicated to finding that 'Baffert has established a likelihood of proving that NYRA's suspension constituted state action, and that the process by which it suspended him violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution…'

“Accordingly, the preliminary injunction was 'governed by [an] assessment of the merits' as required by [precedent]. Second, the preliminary injunction was against a state actor that later changed its procedures, mooting the question. Rather than appeal the preliminary injunction, NYRA changed its suspension procedures such that trainers can no longer be suspended without a pre-suspension hearing….

“Therefore, because Baffert 'neutralized and then caused to be superseded a [state action he] persuasively argued was unconstitutional' and because 'the preliminary injunction [he] secured was never reversed, dissolved, or otherwise undone,' Baffert has, 'unavoidably, prevailed.'”

Amon continued: “At oral argument, Baffert also agreed not to seek damages on his [civil action] claim related to the May 2021 suspension should I grant him attorneys' fees. With this concession, the portion of this case related to the subject matter of the preliminary injunction is complete. That there will be no additional litigation on this topic belies NYRA's worry that there will be serial attorneys' fee litigation regarding the subject matter of the preliminary injunction. Accordingly, I find that attorneys' fees on the preliminary injunction are appropriate at this time.”

NYRA, when it filed a Sept. 27 motion opposing Baffert's expenses, said such an award would be unjust because NYRA's suspension itself was aimed at just ends.

But Amon dismissed that argument: “Following this logic would deny civil rights plaintiffs attorneys' fees in a majority of Section 1983 [civil rights] cases. Section 1983 claims are necessarily brought against state actors, and a state actor will undoubtedly argue that the ends of its policies are in the public's interest,” she wrote.

“And where the state actor has lost on the merits of the Section 1983 claim–in other words, where the court has ruled that the means of its policies were unjust–it would denigrate a plaintiff's constitutional rights to disallow attorneys' fees so that the ends can justify the means.”

NYRA had barred Baffert back on May 17, a bit more than two weeks after the now-deceased Medina Spirit won the GI Kentucky Derby while testing positive for an overage of betamethasone. In the 12 months prior to that positive, four other Baffert trainees had also tested positive for medication overages, two of them in Grade I stakes.

Baffert responded to NYRA's ruling-off by filing a June 14 civil complaint alleging that the ban violated his constitutional right to due process.

On July 14, the eve of the Saratoga season, the court granted Baffert a preliminary injunction that allowed him to race at New York's premier tracks until the lawsuit was adjudicated in full.

On Aug. 25, Baffert petitioned the court to get NYRA to pay for the legal costs he had incurred to that point.

Some of the attorneys who argued Baffert's case billed the seven-time Derby-winning trainer between $450 and $975 hourly. His total $162,086 request covered fees and expenses for six attorneys and two paralegals who performed work on his case.

NYRA had argued that many of the hours billed were duplicative, caused by the overlapping of multiple attorneys from different firms.

Judges have discretion to adjust such expense requests upward or downward based on prevailing rates and the nature of the case. Amon ended up paring down the amount she ordered NYRA to pay by roughly one-third.

She wrote that “the case was high-profile and offered reputational benefits for Baffert's attorneys, especially those attorneys who market themselves as equine law experts.”

The order also stated that “Baffert is correct that the litigation was hotly contested and included quick turnaround of substantial briefing in a high-pressure situation. Moreover, Baffert's attorneys handled the case well, achieving victory on the preliminary injunction with well-argued briefs. Taken together with the previously mentioned case-specific factors, these factors counsel a reasonable rate in the middle of the range.”

But, Amon added, she is not bound to award the actual rates billed by the attorneys that Baffert agreed to pay.

“Baffert's decision to pay a premium to guarantee the attorneys of his choice is relevant, but it does not overwhelm the overall inquiry: what is the 'minimum (rate) necessary to litigate the case effectively?'” the order stated.

The lawyer who billed Baffert the most was the New York-based Charles Michael, who wrote in his declaration that “my $975 hourly rate is within the reasonable rate customarily charged by attorneys with comparable experience.”

Baffert's two next-highest priced attorneys both have long-term expertise in horse racing-related litigation, and they have represented multiple trainer clients in recent high-profile cases across the nation: The Kentucky-based W. Craig Robertson, the lead counsel in the case, charged Baffert $475 hourly for his work. The Oklahoma-based Clark Brewster billed $450 hourly.

The judge ruled that Michael's fee is “far in excess of the high end of the prevailing-rate range for partners in Eastern District civil rights litigation…. Michael has less experience than Robertson and does not have a longstanding relationship with Baffert. Therefore, he merits a slightly lower rate. Accordingly, I find that a rate of $450 per hour is reasonable,” for NYRA to pay.

Robertson's and Brewster's rates were both deemed “reasonable” by Amon.

The judge made further reductions to what NYRA has to pay based on billable hours she said were duplicative. But, she added, “I am unable to determine whether [Brewster's firm] performed duplicative work because its bills are overly vague…. Rarely do Brewster's [billing] descriptions exceed five words.”

To compensate for Brewster's vagueness and “the possibility of duplication obfuscated by those vague entries, I will apply an across-the-board reduction of 33% for the hours claimed by [Brewster's firm],” Amon wrote.

When asked to comment Wednesday on the ruling that it must pay Baffert's partially claimed expenses, a NYRA spokesperson replied with a statement that did not directly address the $109,124 court order.

“NYRA remains focused on protecting the integrity of the sport of Thoroughbred racing in New York and ensuring it is conducted safely,” wrote Patrick McKenna, NYRA's senior director of communications. “To that end, NYRA will conduct an independent hearing beginning on Jan. 24 to determine whether Mr. Baffert has engaged in conduct that is detrimental to the best interests of the sport or potentially injurious to the safety of horses and riders.”

The post Baffert Wins Attorneys’ Fees from NYRA appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Craig Robertson, attorney for Bob Baffert, and Clark Brewster, representing owner Amr Zedan's Zedan Racing Stables, said tests conducted by Dr. George Maylin, who heads a drug testing laboratory at New York's Morrisville State College, showed the presence of betamethasone valerate, which they claim is found in Otomax ointment. Otomax, manufactured to treat ear infections in dogs, lists betamethasone as one of its ingredients. The test, Robertson and Brewster said, also confirmed the absence of betamethasone acetate, the injectable corticosteroid used to treat inflammation.

“In other words,” Robertson said in a statement, “it has now been scientifically proven that what Bob Baffert said from the beginning was true – Medina Spirit was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of Medina Spirit's veterinarian.”

The Paulick Report has asked Robertson and Brewster for a full copy of Maylin's report.

Robertson said the test result “should definitively resolve the matter in Kentucky and Medina Spirit should remain the official winner of the 2021 Kentucky Derby.” Brewster had similar sentiments, stating that “Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.”

The Kentucky Horse Racing Commission and board of stewards have yet to conduct a hearing on Medina Spirit's failed drug test, and until a hearing is conducted Medina Spirit will remain the Kentucky Derby winner. In the ewake of the failed drug test, Baffert was ruled off all tracks owned by Churchill Downs Inc. through the conclusion of the 2023 spring-summer meet at the company's flagship track in Louisville, Ky. Churchill Downs also said horses trained by Baffert are not eligible for qualifying points for the Kentucky Derby.

A spokesperson for the commission could not be reached for comment on Maylin's testing, which attorneys for Baffert and Zedan sought through a court order.

The rules of Kentucky racing do not appear to differentiate between administration of betamethasone or other drugs through injection or other means. In section 1 in the regulations relating to medication, testing procedures and prohibited practices, the definition for “administer” states: “to apply to or cause the introduction of a substance into the body of a horse.”

The full statements from Robertson and Brewster follow:

Craig Robertson: The testing of the split urine sample of MEDINA SPIRIT has now been completed by Dr. George Maylin, Director of the New York Drug Testing & Research Program.  By Order of the Franklin Circuit Court in Kentucky, this urine was tested “to determine if the alleged topical administration of OTOMAX could have resulted in the finding of betamethasone” in MEDINA SPIRIT following the 2021 Kentucky Derby.  Those results have now definitively confirmed that the betamethasone present in MEDINA SPIRIT's system did indeed come from the topical ointment OTOMAX and not an injection.  In other words, it has now been scientifically proven that what Bob Baffert said from the beginning was true – MEDINA SPIRIT was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of MEDINA SPIRIT's veterinarian.

The betamethasone in an injection is betamethasone acetate.  The betamethasone in the topical ointment is betamethasone valerate.  Only betamethasone acetate is addressed and regulated in the rules of racing in Kentucky.  Thus, the presence of betamethasone valerate in MEDINA SPIRIT, which resulted from a topical ointment, is not a rules violation.  Dr. Maylin's testing not only confirmed the presence of betamethasone valerate, but also the absence of betamethasone acetate.  This should definitively resolve the matter in Kentucky and MEDINA SPIRIT should remain the official winner of the 2021 Kentucky Derby.

Since May, Mr. Baffert has been the subject of an unfair rush to judgment.  We asked all along that everyone wait until the facts and science came to light.  Now that it has been scientifically proven that Mr. Baffert was truthful, did not break any rules of racing, and MEDINA SPIRIT's victory was due solely to the heart and ability of the horse and nothing else, it is time for all members of racing to come together for the good of the sport.  Mr. Baffert has been a tremendous ambassador for the sport throughout his 46 year Hall of Fame career and he has every intention of continuing to do so.

Clark Brewster: As Legal counsel for, and on behalf of, Abr Zedan and Zedan Racing Stable, owner of Medina Spirit, winner of the 147th Kentucky Derby, it is extremely gratifying to learn that the New York Racing Laboratory through its Director Dr George Marlin has scientifically confirmed that no Betamethazone Acetate was found in the post race urine specimen of Medina Spirit. Dr Maylin reported that components of an ointment used to treat a skin lesion was confirmed through metabolite confirmation and that no Acetate that is part of the injectable Betamethazone was present. The Kentucky Racing Commission has steadfastly enacted rules relating to corticosteroid joint injection and have drawn a bright line rule that no injections are permitted within 14 days of a race. Now there is zero doubt that the 14 day rule some thought might have been violated by the earlier less specific testing is revealed as premature judgment. That groundless accusation is without scientific merit.
Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.

The post Baffert Attorneys Claim Test Proves Ointment Led To Medina Spirit’s Failed Drug Test appeared first on Horse Racing News | Paulick Report.

Source of original post

Baffert's attorney Craig Robertson attempted to argue that NYRA only created rules and procedures for giving a Baffert hearing after the fact in an attempt to suspend Baffert for the same reasoning as it had in May. Amon dismissed that argument, interrupting Robertson several times to note that a hearing process for Baffert is legally separate from NYRA's enjoined May 17 attempt to suspend him.

“That suspension is no longer in effect,” she said. “I don't know how you can read that [injunction] order to say they cannot now proceed with a hearing. They're not seeking [to suspend him], they're simply seeking to give him a hearing. What was enjoined was the fact that they suspended him without a hearing … I didn't reach a merits decision as to [the suspension]. What I said was that your client was entitled, before someone decided to suspend him, to put forth his answers to all of the charges that they had brought. He can do that now.”

Robertson again tried to argue that NYRA was creating “ex post facto” rules for its original suspension, but Amon again interrupted to say, “No, they're not, because this is a whole new proceeding. You're missing the import of the court's original order … The lawsuit that you brought dealt with a suspension in May … This is an entirely different scenario.”

Robertson returned to his argument that the reasoning behind the scheduled hearing process and potential resulting suspension for Baffert is the same as it was for NYRA's initial attempt to suspend Baffert, to which Amon said, “What difference does that make? We're talking about contempt here. I did not make a ruling that their reasons were invalid in the last hearing, I said he should get a chance to answer [the charges] … They are giving him the opportunity to address all of this.”

Robertson then pivoted to criticizing the nature of NYRA's proposed due process hearing, saying, “They have said, 'Here is your due process, Mr. Baffert. You can have a hearing in front of a hearing officer we appoint. That hearing officer then makes recommendations to a panel that we appoint, and that [NYRA CEO] Mr. [David] O'Rourke appoints. And Mr. O'Rouke has already submitted multiple affidavits in this case in support of the suspension of Mr. Baffert. That panel that Mr. O'Rourke appoints then can do whatever they want, impose whatever penalty they want, and then you have no right of appeal.'”

Amon was more sympathetic to that argument but ultimately found it unrelated to the case in front of her, saying, “I understand your point on that … But I don't know that at this point in time, I [can] prejudge something that hasn't happened yet, particularly in the context of this lawsuit, which pertains to the May 17 suspension, not something that may happen in the future.”

Robertson then argued that NYRA had no rule on the books justifying a suspension for offenses occurring outside of New York, saying “they've now made that rule up,” but Amon shot that down as well, saying, “That's a different lawsuit. That's not this lawsuit.”

Chiming in for the first time, NYRA attorney Henry Greenberg said, “A contempt proceeding is not an appropriate vehicle to raise issues, either procedural or substantive, [about] the hearing. Those arguments should be raised before the hearing officer, retired [New York State] Supreme Court Justice Peter Sherwood, a distinguished jurist, who the Court can be confident and certain will provide a fair, impartial, neutral proceeding for opposing counsel. Those arguments, all of which we address in our paper on the merits, respectfully, are not appropriately heard [here].”

Greenberg then referenced Robertson's opening statement that he did not want to be in court Tuesday but was left with no choice due to NYRA's actions, and said that, to the contrary, NYRA was providing precisely what the earlier injunction directed them to.

“When opposing counsel says he had no choice but to bring this proceeding … In fact, what NYRA is doing today by this administrative proceeding is providing exactly–exactly–what he argued he was entitled to. When [the] July 14 order from the Court was issued, your Honor, NYRA took every word, every syllable. It provided–although that wasn't the intent, perhaps–it provided us guidance about how we could establish a due process mechanism that would allow us to fairly provide the accused to tell their side of the story.”

NYRA also pushed back against the notion that it was creating a retroactive process simply to enforce its original suspension against Baffert, noting that it has also scheduled hearings and issued charges for disgraced trainer Marcus Vitali.

“The problems that we are addressing are not limited to Mr. Baffert,” Greenberg said. “On the same day that we brought the proceeding against Mr. Baffert, we brought it against another trainer, a gentleman by the name of Marcus Vitali, and selected a retired Court of Appeals judge to preside over the proceeding … I leave the Court with the thought that NYRA has taken to heart the guidance and analysis contained in your decision, is committing to this Court that our faithfulness and fidelity to due process will be observed. Mr. Baffert will be given a punctilious compliance with a due process hearing.”

As the proceeding wound down, Robertson left the door open to amending his complaint before disputing what he said was NYRA lumping Baffert in with Vitali.

“To the extent that the Court believes I need to amend my complaint, I would ask for leave to do that, number one,” he said. “Number two, I want to make sure the record is clear, comparing Mr. Baffert to Mr. Vitali is comparing apples to oranges. They have only brought a proceeding against Mr. Vitali to give them cover. Mr. Vitali has a history of 84 drug violations, animal cruelty charges, numerous license suspensions throughout the East Coast and in fact, at one point in time was charged with when investigators came to his barn, running to a refrigerator, grabbing a bubble-wrap bag out of a refrigerator and running off. To compare the two, it's not without import. It has no merit.”

Robertson concluded by saying of a potential future suspension of Baffert by NYRA, “It's the same suspension. The only thing that's changed is the date on the letterhead.” But Amon was unmoved.

“The plaintiff has not proved clearly and convincingly that the September statement of charges violates the July 14 order,” the judge said in her official ruling. “The plaintiff mischaracterizes that order as enjoining NYRA from suspending Baffert for the reasons set forth in the May 17 letter until the conclusion of this case. But the text of the July 14 order bars the defendant only from enforcing the May 17 suspension. It says nothing about the May 17 letter's reasoning … This is not a case in which the Sept. 10 statement of charges can be equated to the May 17 suspension, because there had been significant and material alterations. Unlike the summary suspension ordered in the May 17 letter, the Sept. 10 letter does not suspend Baffert without a hearing. Sept. 10 proceedings create a hearing to consider a possible suspension, not to implement one. And unlike the May 17 suspension, the Sept. 10 statement of charges brings with it a full hearing, evidentiary disclosures, the standard of proof, an impartial hearing officer [and a] right to appeal any decision by the hearing officer to a panel. As [NYRA] counsel has pointed out, contempt proceedings are not a proper vehicle to challenge later actions. So I'm going to deny the request for a stay at this point.”

NYRA was quick to issue a statement praising the decision. “Earlier today, Judge Carol Bagley Amon denied Mr. Baffert's motion seeking to hold NYRA in civil contempt and to stay the administrative hearing,” said Patrick McKenna, Senior Director of Communications for NYRA. “We are gratified by the court's decision allowing NYRA to move forward with its administrative hearing against Bob Baffert. The court found that NYRA's actions were consistent with both the letter and spirit of the July 14 order. NYRA's focus in this matter is protecting the integrity of the sport of Thoroughbred racing in accordance with the requirements of due process.”

Robertson said afterward, “I'm disappointed. But the injunction remains in place and Mr. Baffert is still able to race in New York. We will review the court's ruling and determine next steps.”

The post Judge Dismisses Baffert Contempt Claim Against NYRA appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post