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HISA Authority Challenges ‘Piggyback’ Strategy in Amended Louisiana Lawsuit

The recently amended federal lawsuit spearheaded by the state of Louisiana against the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) is facing a new challenge from the HISA Authority defendants, who filed a Mar. 6 motion to strike the latest version of the complaint based on allegations that the plaintiffs are “improperly” attempting to use federal rules of civil procedure to turn the case to their advantage.

The chief beef in the HISA Authority's Mar. 6 “motion to strike” filed in U.S. District Court (Western District of Louisiana) centers on the addition of an expanded slate of new plaintiffs to the lawsuit initially filed on June 29, 2022.

The plaintiffs had amended that complaint on Feb. 6, 2023, and changes to the lawsuit included the addition of 14 new individual Horsemen's Benevolent and Protective Association (HBPA) affiliates, plus a wide swath of states, racing commissions, and individual racetracks.

“Plaintiffs, having obtained a preliminary injunction from this Court that redresses their alleged harms, now seek to add a 'vast number of organizations' and States as new plaintiffs in a blatant attempt to 'extend the injunction nationwide,'” the HISA Authority's Monday filing stated.

These new plaintiffs, the HISA Authority's motion stated, “have already been litigating challenges to HISA in other federal courts for almost two years. Plaintiffs' gamesmanship is transparent. Their tactic? To use [federal civil procedure rules] to dodge [the legal] standard that dooms the pending intervention motion these same would-be parties previously filed now that the Court has issued a preliminary injunction in Plaintiffs' favor.”

The HISA Authority's motion continued: “Their strategy? To use the geographic 'range, literally from coast-to-coast,' of the new parties as justification for a shotgun request that the Court 'extend the injunctive relief currently in effect to provide nationwide relief.' Their end goal? To dismantle nationwide regulatory reforms that Congress recently amended and reaffirmed after the Fifth Circuit's opinion reinstating the preliminary injunction.

“Allowing the would-be parties–representing thousands of industry members from across the country–to piggyback on the favorable relief Plaintiffs already secured would undermine principles of justice, encourage forum shopping, prejudice Defendants, and set a dangerous precedent for future litigants looking to parlay any single plaintiff's preliminary win into an expansive nationwide class action that topples congressionally mandated regulations before any briefing on dispositive motions.”

That outcome, the HISA Authority argued, “is particularly unwarranted given that a prior stay order entered by the Fifth Circuit and intervening administrative actions by the FTC (on top of Congress's recent amendment reinforcing its commitment to the HISA regime) cast substantial doubt on the continued viability of the claims underlying the preliminary injunction presently in effect.”

The HISA Authority summed up: “The Court should strike Plaintiffs' amended complaint-at least as to the addition of the 'vast number' of new parties seeking to expand the existing relief into a nationwide preliminary injunction.”

The plaintiffs, back on Feb. 6, articulated the revised version of the lawsuit this way:

“This First Amended Complaint seeks to prevent HISA from continuing to exercise 'unchecked government power' through its FTC-approved rules or any other rules that the FTC may approve now that the Fifth Circuit has issued its mandate [in a separate, but related, case headed by the National HBPA].

“The broad collection of plaintiffs from around the country further justifies Plaintiffs' request for nationwide injunctive relief herein,” the plaintiffs' amended complaint continued.

“And this Court has already recognized that the challenged HISA rules offend the Administrative Procedure Act and HISA's statutory authority,” the plaintiffs stated.

“The Fifth Circuit has further cemented the rightfulness of that decision by rejecting Defendants' appeal of the preliminary injunction order and denying Defendants' requests for additional appellate review in this case that came after Congress tweaked the HISA Act, just as the Fifth Circuit did in [the National HBPA appeal],” the plaintiffs' amended complaint stated.

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Letter to the Editor: Opposing Is Easy

As the legal saga that is HISA continues to be bantered around the courts horse racing fans have heard some common themes develop from those in support of and in opposition of the legislation and regulations. Those in opposition have raised many points they have repeated used as arguments for what is wrong with the entire idea and process. One of the themes that has been made as part of every opposition argument is that there is a better way to go about this, and a better set of uniform rules and regulations can be made if the proper players were brought to the table to create them.

As a racing fan for the last 30 plus years I can say we all desire both uniform rules and a disciplinary set- up that provides for fair due process but quick resolution of issues with proper penalties. As a veterinarian and animal welfare advocate, I have fought for proper rules to ensure the welfare of these majestic equine athletes. As someone who has been involved in process of creating regulations on the state level for dog kennels in PA, I know all too well how hard it can be to reach consensus and have everyone agree on everything proposed. It is the nature of the process and human nature itself. However, I also have learned through all these areas that when something is not liked or desired, a counter plan or counter offer is usually made to provide an alternative to what is being objected to. The lack of any type of counterproposal or set of rules/regulations being set forth by the people in opposition certainly is puzzling.

All the key players that are claiming to be excluded in this process of creating uniform regs could easily have come together and formed a committee, group, or whatever you want to call it of their own and work on crafting a competing set of rules and how they are to be implemented throughout the country that would alleviate any constitutionality concerns. I have yet to see even an outline proposed from any of these opposition groups on what should be done instead. Continuing with the status quo is not one that will be accepted by anyone as it has shown to be woefully lacking in many areas.

The National HBPA Convention is happening soon. Will any kind of update be given then? Will a new committee be announced? Will we finally see this “better plan” that all opposed to HISA claim can be created? Or…will we merely see the same old statements of HISA being unconstitutional and it needs to be done away with?

It is always easy to be the party in opposition to something. It is much harder to be the ones to craft a plan that will work.

–Bryan Langlois, DVM, Racing Fan and Vice-President ThoroFan

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Dueling Grounds Derby winner Kitodan Named HBPA’s Claiming Horse of 2022

Turf specialist Kitodan, who went from being claimed twice last year to winning Kentucky Downs's GIII $750,000 Big Ass Fans Dueling Grounds Derby, has been selected the National HBPA's 2022 Claiming Horse of the Year, the group announced Friday morning.

“We are blessed that we were able to claim that kind of horse compared to where we were just a few years ago,” said western Kentucky-based trainer Eric Foster, whose wife Brooklyn's Foster Family Racing and partners Doug Miller and Bill Wargel campaign the now 4-year-old colt after claiming him for $80,000 in May. “We're really happy and humble to own him and thank the National HBPA for having this award. Winning Claiming Horse of the Year came out of the blue, but we are honored and so proud of Kitodan. People like us, we can't go to the Keeneland sale, pick the ones we want and hold our hand up until we come home with them.”

Kitodan will be honored at the awards luncheon Tuesday March 7 as part of the annual National Horsemen's Benevolent & Protective Conference March 6-10 at the historic Hotel Monteleone in New Orleans's French Quarter.

“Kitodan exemplifies what we look for in the National HBPA Claiming Horse of the Year,” said Todd Mostoller, chair of the National HBPA's awards committee. “He ran at five different tracks on grass, synthetic and dirt and showed that it's better for a racehorse to have a big heart than a big price tag while going from three claiming races to graded-stakes winner. We love these stories. It gives hope to horsemen everywhere that you don't have to buy six- and seven-figure babies to come up with a good horse.”

Kitodan, a $9,000 yearling purchase, made money for his three sets of owners as a 3-year-old. After running in stakes at age 2 for Joker Racing, Kitodan was claimed in his first start of 2022 for $35,000 by trainer Mike Maker on behalf of owners Paradise Farms Corp. and David Staudacher, who campaigned 2021 Claiming Horse of the Year Special Reserve. Kitodan promptly won another optional allowance race at Churchill Downs while again in for the $35,000 claiming price before taking Turfway Park's $200,000 Rushaway S. by 3 3/4 lengths.

When Maker subsequently ran Kitodan for the $80,000 price tag in an optional claiming race at Churchill Downs, Foster was the only one to put in a claim.

The partners recovered their investment just three weeks later when Kitodan won Churchill's $200,000 Audubon S. at 40-1 odds, and went on to win at a mile and five-sixteenths in the Dueling Grounds race.

“It's one of those things you only dream about in racing to come up with a horse like this,” said Miller, of Junction, Ill. “If we were trying to do this individually, we wouldn't even have thought about it. Partnering gave us the opportunity.”

It was the first graded-stakes victory for the owners and by far the biggest purse.

“There are a lot of people who have a lot more money and investment in the horses and never get this kind of horse,” said Wargel, of Ridgway, Ill., 50 miles from Kentucky's Ellis Park. “We're just old farm boys, me and Doug. Whether we never have another one or that horse never wins another race, he made a dream come true for us.”

Foster said that Kitodan winning Claiming Horse of the Year is a team award that includes his partners who made it possible, along with the trainer's staff and family, who help with the stable.

“We would never want to accept an award like this without thanking Juan Medina,” Foster said of his assistant trainer. “He not only takes care of Kitodan but is also his regular exercise rider. We also very appreciative to (jockey) Geraldo Corrales and his agent Cliff Collier.”

Kitodan is getting time off at Foster's farm in Utica, Ky., near Owensboro, with a major goal being Kentucky Downs' $1 million GII Kentucky Turf Cup in September and hopefully a trip to Santa Anita for the $4 million Longines Breeders' Cup Turf, a race he missed last year with a minor leg issue.

“He's probably put on 100, 150 pounds. The time off has really done him some good,” Foster said. “We're hoping to start back with him at the end of February. We'd love to get back to Kentucky Downs.”

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Open Letter to the Industry: We’ll Push for Positive Change, Flawed HISA is Not Answer

The National HBPA was approached by trainers Wesley Ward and Larry Rivelli to help facilitate this open letter to the industry. While this is being distributed by the National HBPA, which also assisted in putting the letter together, the sentiments are those of trainers Wesley Ward, Larry Rivelli and the undersigned horsemen and racing participants. They encourage others who agree with this letter to add their name by using the link here and below. More than 400 have signed up in 24 hours just from word of mouth. Because of time constraints, not all the names have been uploaded to the document (linked to here and elsewhere)–but they will be.

We, the undersigned, commit to being part of the solution in making the industry we love better, safer and improved for the three entities that make it all possible: horseplayers, horse owners and especially the horses.

In that regard, we believe the Horse Racing Integrity & Safety Act and the private Authority to which it delegates governmental powers has too many flaws, missteps and costs that could have been averted with true inclusion and transparency in its development.

Time and time again over the last several years, trainers have been asked to change. When those changes were for the good of the horse and the industry, we changed and adapted without any questioning. We now need to rally together for additional true, positive and lasting change for the good then we are ready to do just that.

However, meaningful change cannot be accomplished until the leadership of all stakeholders have real representation at the table–and from the beginning. That includes the National HBPA, America's largest organization representing Thoroughbred owners and trainers; the Association of Racing Commissioners International, whose years of hard work on model rules should be the starting point rather than largely ignored; the racetrack veterinarians, and the Jockeys' Guild.

We have the opportunity now to get this right, with the 5th Circuit Court of Appeals unanimously ruling HISA unconstitutional and the Federal Trade Commission declining to approve HISA's drug and medication rules that were to go into effect Jan. 1.

HISA is a wake-up call for the hard work of transformative change, though it is unfair to say there has been no change over the past couple of decades. There is far more uniformity than differences among racing jurisdictions.

Horsemen, including the National HBPA and its affiliates, have championed uniform rules based on science for years. Change in horse racing has come rapidly when it makes sense and truly is for the better of the industry. How quickly did it take us to get rid of anabolic steroids? Very.

We know horsemen can no longer sit on the sidelines, as many have done in the past, to now get this done right. We need to speak up, because we are experiencing the consequences when we do not.

We are extremely concerned about the price tag of HISA threatening to put small tracks and small stables out of business because, simply put, they cannot afford the cost. Horse racing cannot survive on only the largest circuits and with only the largest stables. We need venues for all classes of horses and all sizes of stables in order to support a healthy, sustainable Thoroughbred industry.

Small tracks and stables are a vital part of American racing's fabric, developing race fans and generations of future horsemen, and should not be considered as simply collateral damage.

Among other things we believe should be part of the dialogue as we work together:

There must be transparency and representation in both developing and executing the rules.

We, too, want stiff penalties for those succeeding in or attempting to circumvent the rules. But we also believe in due process.

Drug and medication policies that reflect the world in which we live, including the reality of environmental transfer and contamination of impermissible substances in trace levels that don't impact a horse's performance. We need to take a page from human testing, with reasonable, science-based screening levels.

“Gotcha” chemistry–finding a substance in single-digit picograms (parts per trillion) because today's advance testing can–that ensnares innocent parties is not helpful. One source of any negative public perception of racing is because some in leadership have conflated beneficial therapeutic medications with illegal drugs.

Horsemen and jockeys must have more say in developing safety rules, including crop regulations. While science is important, racing will only benefit from policies that allow for input from horsemen and veterinarians in the trenches.

We don't need cost-prohibitive government overreach with burdensome paperwork that takes away from what should be our main focus: our horses.

We, the undersigned, are committing today to push our fellow horsemen, racetracks and racing regulators to unite for positive, inclusive change. We've gotten our wake-up call. We look forward to working with the other stakeholders in our great industry for change done right.

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