Judge Matthew Kacsmaryk | Horse Racing Free Tips

Facing a United States Court of Appeals decision from the Fifth Circuit that the Horseracing Integrity and Safety Act (HISA) is unconstitutional and battling three similar lawsuits in various stages within the federal court system, the HISA Authority and the Federal Trade Commission (FTC) were informed Monday that a U.S. District Court judge in Texas won't grant those defendants a requested stay that would halt the briefing schedule in that case pending a final resolution of the Fifth Circuit order.

“No Good Cause Exists to Stay This Action,” wrote U.S. District Judge Matthew Kacsmaryk (Northern District of Texas, Amarillo Division) in his Dec. 12 order. “This is not one of the 'rare' circumstances in which Plaintiffs should be compelled to stand aside while Defendants litigate another case. Defendants make no showing of 'hardship or inequity' in complying with the briefing schedule they previously agreed to. Defendants were already aware of the then-pending appeal in [the Fifth Circuit] when they agreed to the schedule.

“The Court recognizes that the Fifth Circuit's decision [declaring HISA unconstitutional] could moot this challenge or clarify some of the issues,” the judge continued. “But Plaintiffs advance seven distinct constitutional challenges to HISA-including the nondelegation doctrine. Plaintiffs argue HISA violates the doctrine on three alternate bases. [The Fifth Circuit decision] considered only one of those bases. Thus, the Court does not anticipate that the final resolution of [the Fifth Circuit decision] will necessarily clarify the issues in this case by much.

“Additionally, Defendants are considering whether they will petition for a writ of certiorari before the Supreme Court. Hence, it could be months or even years before [the Fifth Circuit decision] reaches finality. Until then, a stay could unfairly harm Plaintiffs because [that order] only binds the parties in that case,” the judge wrote.

The judge did, however, give the HISA Authority 60 days of extra time by mandating a revised briefing schedule that now calls for the HISA and FTC defendants to file their combined responses to the plaintiffs' motion for summary judgment on or before Mar. 6, 2023, which in effect grants the defendants' motion in part.

The plaintiffs in the case are Global Gaming LSP, a limited liability company that owns Lone Star Park; Gulf Coast Racing LLC, the owner of a greyhound track in Nueces County, and both LRP Group Ltd. and Valle De Los Tesoros, which are two limited partnerships separately looking to operate new horse tracks in south Texas. They collectively filed their suit July 29, seeking declaratory and injunctive relief and a preliminary injunction against HISA.

The Fifth Circuit suit was initiated by the National Horsemen's Benevolent and Protective Association (NHPBA) back in 2021. That case was dismissed by a federal judge Mar. 31, 2022, but the Fifth Circuit reversed that decision Nov. 18.

That NHBPA lawsuit is separate from a similar 2021 anti-HISA complaint, again over alleged constitutional issues, headed by racing commissions and attorneys general in Oklahoma and West Virginia. That case, too, was dismissed by a federal judge on June 3, 2022, but the plaintiffs appealed the decision to the Sixth Circuit, which heard arguments on reversing that decision Dec. 7.

A fourth lawsuit, in which both HISA and the FTC are defendants in a complaint initiated by the states of Louisiana and West Virginia, plus the Jockeys' Guild, alleges unconstitutionality and federal rulemaking procedure violations regarding HISA's initial framework of regulations that went into effect July 1. According to the electronic court docket, there has been no filing activity in that case since Sept. 7.

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A federal judge in Texas overseeing one of four lawsuits seeking to derail the Horseracing Integrity and Safety Act Authority (HISA) on alleged anti-constitutionality grounds ruled Friday that the State of Texas and its racing commission can't join a case spearheaded by the owners of Lone Star Park as an “intervenor,” in part because they “cannot show their interests are inadequately represented” and also because they had already been granted intervenor status in a similar case.

An “intervenor” designation allows outside parties that have a personal stake in the outcome of a civil suit to participate in a lawsuit, even if their interests don't align exactly with those of the original plaintiffs.

United States District Judge Matthew Kacsmaryk (Northern District of Texas, Amarillo Division) explained the reasons for his denial in an Oct. 21 order:

“Seven months before filing the Motion, State Intervenors intervened in a similar challenge in this Court's Lubbock Division against the same Defendants,” Kacsmaryk wrote. “Simply put, State Intervenors were warned that intervening in the Lubbock Action could preclude them from intervening in a similar action. That warning had teeth.

“For the same reason, intervention would unduly prejudice [HISA's] right not to have to defend against serial litigation,” Kacsmaryk continued. “Additionally, State Intervenors' interests are adequately represented by Plaintiffs. And intervention is unlikely to contribute significantly to the underlying factual issues because State Intervenors' proposed complaint has added nothing to this case…. Plaintiffs already press every claim State Intervenors wish to bring.”

The previous suit referenced by the judge that Texas and its racing commission had joined was initiated by the National Horsemen's Benevolent and Protective Association (NHBPA) back in 2021. That case was dismissed by a federal judge Mar. 31, 2022, but the plaintiffs have appealed that decision.

And that NHBPA lawsuit is separate from a similar 2021 anti-HISA complaint, again over alleged constitutional issues, headed by racing commissions and attorneys general in Oklahoma and West Virginia. That case, too, was dismissed by a federal judge on June 3, 2022, but that decision is also under appeal.

A fourth lawsuit, in which both HISA and the Federal Trade Commission are defendants in a complaint initiated by the states of Louisiana and West Virginia, plus the Jockeys' Guild, alleges unconstitutionality and federal rulemaking procedure violations regarding HISA's initial framework of regulations that went into effect July 1.

That case is currently undergoing a different sort of appeal. At issue is whether a lower court (U.S. District Court, Western District of Louisiana) erred in preliminarily enjoining HISA regulations that were purportedly harming the plaintiffs. The issuance of that preliminary injunction favored the plaintiffs, but HISA and the FTC have appealed that decision to a higher court.

There are also intervenors wanting to join that suit as plaintiffs. Led by 14 affiliates of the HBPA, plus four racetracks, that alliance of entities seeks protection from the alleged harms of HISA.

According to the court docket in the case initiated by the Texas tracks, the next step in the process is for the plaintiffs to file a motion for summary judgment, which must be done within 30 days from the Oct. 21 order denying the intervenors' participation.

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