Facing Extortion Allegations, Defendants in Defamation Lawsuit Contend ‘Baffert is the Rare Libel-Proof Plaintiff’

The two defendants facing allegations of civil extortion and defamation in a federal lawsuit initiated by trainer Bob Baffert and his incorporated racing stable are contending that the case should be dismissed because “Baffert is the rare, libel-proof plaintiff given his notorious history in the horse racing industry,” according to a discovery plan filed jointly by lawyers for all sides in United States District Court (Southern District of California) Jan. 2.

Baffert's legal team, however, is banking that dismissal won't happen, and it told the court in the same document that it is anticipating the case should be able to be brought before a jury a little more than a year after it was first initiated.

“This matter should be ready for trial approximately in November of 2024,” Baffert's counsel wrote in the joint discovery plan. “Plaintiffs estimate that between five and eight days will be needed for trial.”

Back on Sept. 27, Baffert filed a suit against two New Jersey residents, Justin Wunderler and Daniel DiCorcia, that asked for compensatory damages in excess of $75,000, plus an award of punitive damages “to deter similar conduct by Defendants and others” after purportedly suffering “mental anguish, anxiety, and duress Defendants have caused by virtue of their repeated threats to Baffert's business and family by means of their unlawful statements.”

The alleged extortion and defamation took the form of repeated social media postings.

Among them, according to Baffert's complaint, were postings written by Wunderler asking “his followers to bring dangerous objects to hurl at Baffert and his family” at the 2023 GI Belmont S., and another in which Wunderler posted “a picture of Baffert's house in California.”

As Baffert's complaint put it, “This lawsuit is the response to a series of escalating threats and criminal conduct by Defendants Justin Wunderler and Daniel DiCorcia against Plaintiffs Bob Baffert and his family. Over the past several months, Defendants have urged others to engage in violent behavior toward Baffert and his family, baselessly accused Baffert of criminal conduct, and attempted to extort Baffert and his family under threats to his business, reputation, and occupational license.”

Both defendants have denied the allegations and are seeking a dismissal of the case.

Wunderler, however, did not initially file a timely legal response after being served with his  summons.

On Dec. 4, one of Baffert's attorneys, Clark Brewster, asked the court to enter a default judgment against Wunderler for failing to respond.

Wunderler subsequently obtained a lawyer and an answer was filed Dec. 15. The judge denied the motion for default judgment on Dec. 19 and ordered the case to proceed.

Next up is an “early neutral evaluation” conference Jan. 8 that is designed to serve as a form of alternate dispute resolution, although neither party mentioned the likelihood of a settlement in the Jan. 2 joint filing.

Baffert's legal team, in Tuesday's joint plan, brought up some anticipated issues relating to discovery, allegedly because “One or more defendants in this matter have posted on social media regarding their intent to seek discovery on matters beyond the scope of the Complaint.”

Discovery is the formal legal process by which the parties in a case exchange information in advance about witnesses and evidence that each side intends to present.

The filing by Baffert's lawyers continued: “This case is about Defendants' allegations of blood doping, the use of EPO, and their conspiracy to extort Mr. Baffert. Inquiries outside of these topics will be irrelevant except to the extent necessary to resolve issues regarding Mr. Baffert's reputation.”

The defendants were given an opportunity in the joint filing to give their positions on the topic of anticipated discovery issues.

“DiCorcia has nothing to add and no response to the amorphous comment above,” the joint filing stated.

“Wunderler agrees to adhere to the scope and limits of discovery [and] will adhere to any Court order regarding discovery,” the joint filing stated.

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Baffert Wants One Defendant in Defamation Suit Ruled in Default for Not Answering Complaint

The federal lawsuit initiated by trainer Bob Baffert that alleges civil extortion and defamation by two social media posters has been ordered to proceed to an “early neutral evaluation” (ENE) conference Jan. 10 that is designed to save time and money as a form of alternate dispute resolution before the case can proceed any further.

However, subsequent to that Nov. 29 ENE order, Baffert's attorney, Clark Brewster, asked the United States District Court (Southern District of California) on Dec. 4 to enter a default judgment against one of the defendants for failing to file an answer to the complaint in a timely manner.

Back on Sept. 27, Baffert filed a suit that asked for compensatory damages in excess of $75,000, plus an award of punitive damages “to deter similar conduct by Defendants and others” after purportedly suffering “mental anguish, anxiety, and duress Defendants have caused by virtue of their repeated threats to Baffert's business and family by means of their unlawful statements.”

As Baffert's complaint put it, “This lawsuit is the response to a series of escalating threats and criminal conduct by Defendants Justin Wunderler and Daniel DiCorcia against Plaintiffs Bob Baffert and his family. Over the past several months, Defendants have urged others to engage in violent behavior toward Baffert and his family, baselessly accused Baffert of criminal conduct, and attempted to extort Baffert and his family under threats to his business, reputation, and occupational license.”

Baffert's complaint stated that Wunderler “resides in Waretown, New Jersey, and is a part-time pari-mutuel Thoroughbred racing bettor. Mr. Wunderler has a substantial social media presence and following under the pseudonym 'Swifthitter.'”

The complaint also stated that DiCorcia “resides in Point Pleasant, New Jersey, is a part-time pari-mutuel Thoroughbred racing bettor, and operates an apparel store called 'BarShoeLife' that sells racing-related apparel. Mr. DiCorcia also has a substantial social media presence and following under various pseudonyms related to that “Bar Shoe” handle.

Baffert's complaint alleged that “[T]his escalating pattern of outrageous behavior is specifically intended to accrue more followers and personal monetary gain. Before the [GI] Belmont S. in New York, Mr. Wunderler specifically asked his followers to bring dangerous objects to hurl at Baffert and his family. Shortly thereafter, Mr. Wunderler posted a picture of Baffert's house in California and claimed that he 'slaughters horses on National TV.'”

The complaint further alleged that, “Mr. Wunderler and Mr. DiCorcia engaged in a conspiracy to extort money from Baffert, sent a text message demanding a certain sum of money, with specific payment instructions for wiring money, in exchange for a promise not to release information Defendants allege is so damaging that it will end Baffert's career.”

DiCorcia, according to the court's docket, filed a timely, one-page response Nov. 28 that denied Baffert's allegations and asked for the claims to be dismissed.

Wunderler, however, did not file any response after being served, according to the motion filed Monday by Brewster on behalf of Baffert.

That motion cited Rule 55(a) of the Federal Rules of Civil Procedure, which states that a party can be found in default if they fail to plead or otherwise defend themselves from a party seeking relief via lawsuit.

The motion stated that Baffert “respectfully request[s] the Clerk to enter the default of Defendant Justin Wunderler for failure to plead or otherwise defend this action within the permitted time to respond.”

The motion attached an affidavit of service and stated Baffert's legal team made “several attempts” to serve Wunderler personally with the complaint at his residence.

“The individual served was Mr. Wunderler's mother, who confirmed that Mr. Wunderler lived at the residence,” Baffert's motion for default stated. “Plaintiffs also mailed copies of the Complaint and Summons through regular and certified mail to Mr. Wunderler. Through his various posts and discussions on the social media platform 'X,' formerly known as Twitter, Mr. Wunderler has confirmed that he is aware of the Complaint and has reviewed its contents.”

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The Week in Review: After a Nightmare, Ray Handal Returns to the Winner’s Circle

It was just a claiming race, but when Ray Handal was standing in the Saratoga winner's circle Friday after a win by his Thinkaboutit (Upstart) in the day's eighth race, he was overcome with emotion. It was a victory he will never forget, understandable considering what he had just been put through.

“A short time before that, I didn't know if I'd ever be in the winner's circle again,” the 34-year-old trainer said. “To come back and win with a horse who we didn't have much in the way of expectations for and win in that kind of fashion, especially in Saratoga, was a special win. I felt like I had won a graded stakes race.”

In the moment, everything seemed normal again. His barn was full, he had just won a race in Saratoga and his reputation as one of the best young trainers on the NYRA circuit was in tact. But there was nothing normal about the first five days of July when Handal was issued a provisional suspension issued by the Horseracing Integrity Unit (HIWU), which meant he faced what could have turned into a career-crippling permanent suspension of up to two years.

“My world was ending,” he said.

Toward the end of training hours on June 30, he was approached at his barn by members of the HIWU team. He was told that a horse he trained named Barrage (War Dancer) had tested positive for a banned substance called Zeranol after finishing second in an optional-claiming allowance at Belmont May 28. Under HIWU rules, when a trainer has a positive test for anything on the banned substance list, they are suspended almost immediately, before a split sample can be reviewed and before the charged trainer is allowed to have a hearing. Handal's suspension began July 1.

He had been suspended and evicted from the grounds. He had to turn his horses over to someone else and faced having to spend two years on the sidelines. Under HIWU's policy of suspend now, ask questions later, it was unclear what could be done to overturn the suspension and how long that process might take. Handal feared the worst.

“It was horrible,” he said. “It felt like you just got a letter from the doctor saying you've got cancer and you've only got a few months to live. My heart dropped. I wasn't sad, upset or mad. I was in shock. I didn't know how to react.”

Handal was sure that he didn't do anything wrong. He had been training since 2014 and the worst thing on his record was a $500 fine issued by the Delaware Thoroughbred Racing Commission when a horse of his tested positive for Phenylbutazone and Flunixin. He said he didn't even know what Zeranol, which is synthetic nonsteroidal estrogen, approved for use to promote growth in livestock, including beef cattle, was.

“I have always played by the rules and I take pride in that. I care about my horses,” he said.

Handal turned to lawyer Clark Brewster, who, in racing circles, is best known for defending Bob Baffert through his many ordeals with Churchill Downs, NYRA and the Kentucky Horse Racing Commission. Brewster quickly came up with an explanation as to how the Zeranol got into the horse's system. After receiving a report from UC Davis, which tested the horse, Brewster saw that there was also a finding of Zearalenone, a common feed contaminant. He said that, therefore, mycotoxins in the feed had caused the positive. Handal, he argued, could not be blamed for having contaminated feed. HIWU agreed. On July 5, the provisional suspension was lifted.

Handal's nightmare was over. Thinkaboutit was his third starter and his first winner since the suspension was overturned.

The case may be over, but questions remain. Before HIWU took over the process of drug testing and issuing fines and suspensions after a positive has occurred, Handal's case would have been treated differently. This would have been handled by the New York Gaming Commission and it would have allowed Handal to have a hearing before a suspension could go into effect. Presumably, Brewster could have presented his findings at that hearing, the Gaming Commission would have accepted that the positive was the result of environmental contamination and Handal would not have been sanctioned and the original positive would not have been reported. He wouldn't have been put through four days of hell.

“They are shooting first and asking questions later and that needs to be addressed,” he said. “I don't know if specifically HISA and HIWU is trying to attack horsemen. But when this was planned out, it might have seemed ok on pen and paper, but, in action, it really doesn't work.”

He hopes that HIWU will reconsider the policy of issuing provisional suspension immediately after the finding of a banned substance comes in and before someone can have a hearing. HIWU showed that it can be flexible when it announced last week that there will be a lesser set of penalties going forward when a trainer violates rules regarding inter-articular injections.

“They have already revised some rules, so it doesn't seem like they are so close minded that they won't be open to making changes,” Handal said. “And they listened to our case. At the end of the day, they could have dragged it out, but they reacted quickly and swiftly and realized that it should have been handled as an atypical finding. They corrected themselves right away.”

Being a trainer in Saratoga can be challenging, especially if you're not named Chad Brown or Todd Pletcher. Handal won just four races at the meet last year, and, while his stable is improving every year, he's won just one graded stakes race. He's got that to worry about. But a two-year suspension that hung over his career when it appeared that he did nothing wrong, that is no longer an issue and he's winning races again. He will gladly take it.

Saratoga Handle Declines Sharply Over First Three Days

While it's far too early to panic, business at Saratoga was slow over the first three days of the meet. After the track broke records for total handle for the meet in 2022 and 2021, could Saratoga's numbers finally be evening out?

A total of $65,527,927 had been bet on the meet through Saturday. That's a decline of 21.3% from 2022 when $83,241,031 was wagered through the comparable period.

As far as the first two days of the meet go, there were extenuating circumstances. On opening day, NYRA had to speed up post times in order to get the card in before a storm struck. That could have been why handle was off 6.2%. On Friday, the races were washed off the turf, and handle was, understandably, dismal. They bet $13,366,687 on the card, a 45.2% decline from 2022.

The real concern is the numbers posted Saturday, when an 11-race card included three graded stakes and the races stayed on the turf. In what looks like an apples-to-apples comparison to 2022, the handle was $31,744,186. That's a 14.4% decline from 2022 when $37,068,005 was bet on the card.

And don't blame the Chad Brown factor in the GI Diana S. Brown had four of the five starters in this year's field, which some argued made it an unappetizing betting race. In 2022, Brown had four of the six starters.

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Ray Handal’s Suspension Lifted by HIWU; Feed Toxin Blamed

After considering the findings submitted by attorney Clark Brewster, the Horse Racing Integrity and Welfare Unit (HIWU) has lifted the provisional suspension imposed on trainer Raymond Handal on Saturday, July 1 after a test detected the presence of Zeranol and Zearalenone in the urine sample taken from his horse, Barrage (War Dancer), May 28 at Belmont Park.

“Pursuant to ADMC Program Rule 3247(e), HIWU has lifted the Provisional Suspension based upon information submitted by the Covered Person and the review of relevant scientific information. The Equine Anti-Doping Notice has not been withdrawn,” reads the notice on HIWU's website.

Rule 3247(e) reads simply, “(e) If it considers it appropriate to do so on the specific facts of the case, the Agency may lift the Provisional Suspension.”

Brewster argued that UC Davis's finding that Zearalenone, a common feed contaminant, was also in the sample, pointed to the fact that mycotoxins in the feed had caused the positive. He provided HIWU with documentation supporting his claims.

“I'm pleased,” said Brewster, “It's great when you have the kind of transparency and applications of rules that most scientists are trying to see. I don't think the provisional suspension was warranted, but the rules for HISA and HIWU are written very directly without a lot of discretion. I have to hand it to the lab at UC Davis on pointing out the atypical finding and I'm pleased that when we supplied the literation and our position that the HIWU folks took it seriously, reviewed it and made the right decision.”

Brewster said that he hoped that this case would provide a blueprint for future situations like this, and help to foster common-sense solutions.

“I think it will be helpful as we work through these rules and understand some of the exceptions and interpretive points,” Brewster said. “For now, they did what the rules required them to do. They found a prohibited substance, issued a provisional suspension, and then said the positive came from a feed toxin and did what they had to do.”

“With his provisional suspension lifted today by HIWU, trainer Ray Handal is once again able to fully participate in all training and racing activities at NYRA tracks,” said NYRA's Vice President of Communications Patrick McKenna.

 

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