That recommendation, if it gets put into place by a final order, would bar 14 individual Horsemen's Benevolent and Protective Association (HBPA) affiliates, plus a wide swath of states, racing commissions, and individual racetracks from becoming parties to the 14-month-old lawsuit.

Magistrate Judge David Ayo of the United States District Court (Western District of Louisiana) also recommended in his 13-page report that the original case be stayed pending the outcome of a separate, but similar Fifth Circuit Court appeal that is headed by the National HBPA and is also trying to stop HISA from operating based on other alleged constitutional violations. Oral arguments in that case are scheduled for Oct. 4, but it could then be months before a Fifth Circuit decision gets issued.

The judge minced no words in his Sept. 13 report, which in part scolded the original and would-be plaintiffs for wasting the court's resources with “substantial overlap of parties” and their “multiple suits challenging the Act,” referring to litigation that is either currently swirling in the federal court system or has already been adversely adjudicated against some of the plaintiffs over the course of the last 2 1/2 years.

“After an exhaustive review of the landscape of suits challenging the Act, this Court concludes that Plaintiffs' amended complaint is the result of deliberate strategy and not excusable neglect and, for that reason, is a 'bad faith amendment' within the Fifth Circuit's interpretation of that term,” the judge wrote.

“Additionally, Plaintiffs' amendment is an abuse of procedure and an impermissible use of judicial resources. Finally, there can be no doubt that the shuffling of plaintiffs from one suit to another in this manner prejudices Defendants. This litigation tactic is duplicative and the very definition of 'piecemeal.'”

The original plaintiffs in the June 29, 2022, lawsuit were the state of Louisiana, its racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, the state of West Virginia, its racing commission, and five individuals regulated as “covered persons” under HISA. The Jockeys' Guild was also an original plaintiff, but it opted out of the lawsuit on Dec. 23, 2022, after Congress had just passed and President Biden was about to sign into law the amended version of HISA that is now in effect.

The defendants, who consist of the HISA Authority, the Federal Trade Commission (FTC), and board members and overseers of both entities, are alleged by the plaintiffs to have violated the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations,

On Feb. 6, 2023, the plaintiffs filed an amended complaint to the lawsuit, with the chief changes being the addition of the broad new slate of new plaintiffs.

After the defendants moved to strike the amended complaint on Mar. 6, the plaintiffs followed up three weeks later by filing a memorandum in support of allowing the new entities.

“Defendants suggest that Plaintiffs engage in something sinister by seeking amendment to request expanded relief,” the plaintiffs' Mar. 27 court filing stated. “But parties across the country routinely amend to seek expanded relief without issue.”

Not so, rebutted the defendants, who in an Apr. 3 court filing characterized the alleged piling-on of plaintiffs as “maneuvering” intended to “piggyback” upon temporary relief from HISA's rules that had already been granted via a stay to the states of Louisiana and West Virginia.

The Sept. 13 report by Judge Ayo explained why he sided with the HISA Authority and the FTC in recommending that the amended complaint be stricken.

“[G]roups of plaintiffs, including the State of Louisiana and the Louisiana HBPA, have already litigated the constitutionality of the Act, as amended, creating substantial overlap among these suits as to parties and claims,” the judge wrote. “To the extent Plaintiffs would draw a distinction between this suit and those now on appeal to or decided by various circuit courts of appeals based on the inclusion of APA claims, this Court concludes that such argument must fail based on considerations of claim splitting.”

In federal courts, a rule against “claim splitting” prohibits parties from simultaneously initiating multiple suits involving the same subject matter against the same defendants. Application of the rule does not require that the claims or parties be identical in each suit. A court may find improper claim splitting where the claims in the more recent suit arise from the “same nucleus of operative facts” as those advanced in a prior suit.

Judge Ayo continued, writing in a footnote at a different point in the report that, “this Court is mindful of the benefit of allowing an issue to 'percolate' in the various district courts and courts of appeals.

But, the magistrate judge added, “Plaintiffs leapfrogging from one case to another in different district and circuit courts in the wake of unfavorable rulings does little to further this objective.”

Judge Ayo's report and recommendations now go to Chief U.S. District Judge Terry Doughty, who is overseeing the underlying lawsuit. Both sides in the case will have 14 days to file specific, written objections, after which Doughty will issue a final decision at the district court level that will be appealable to the U.S. Court of Appeals.

The post Judge: ‘Substantial Overlap’ of Plaintiffs In Multiple Anti-HISA Suits ‘Indicative of Improper Motive’ appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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“Plaintiffs characterize their joinder of new parties as a 'routine amendment,'” the Apr. 3 court filing stated. “But they do not dispute that the purpose of their amendment is to transform the preliminary injunction already in force in Louisiana and West Virginia into a nationwide injunction by adding a 'broad collection' of new plaintiffs stretching 'literally from coast-to-coast.'

“Nor do Plaintiffs deny that their recent maneuvering is intended to circumvent the difficult standard that applies to the still pending intervention motion previously filed by these same parties,” the filing continued.

“And they do not contest that had the original Plaintiffs been denied a preliminary injunction, none of the new parties seeking to piggyback on that relief would have joined this suit but instead would have tried their luck elsewhere.

“To the contrary, in a separate challenge in the Northern District of Texas that has been ongoing for two years, many of these same parties conceded that their 'strategic' decision to join this suit is motivated by their belief that the original Plaintiffs had found 'a judge who had previously been generous to those plaintiffs with equitable relief,'” the filing stated.

Back on Feb. 6, the plaintiffs filed an amended complaint to their original June 29, 2022, lawsuit, with the chief changes involving the addition of 14 new individual Horsemen's Benevolent and Protective Association affiliates, plus a wide swath of states, racing commissions, and individual racetracks.

After the defendants moved to strike the amended complaint on Mar. 6, the plaintiffs followed up three weeks later by filing a memorandum in support of allowing the new entities.

“Defendants suggest that Plaintiffs engage in something sinister by seeking amendment to request expanded relief,” the plaintiffs' Mar. 27 court filing stated. “But parties across the country routinely amend to seek expanded relief without issue.”

The judge in the case has now been supplied with written legal arguments on both sides of the issue, paving the way for a near-future ruling on the defendants' motion to strike the amended complaint.

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Former New York harness trainer Ross Cohen had testified that Gianelli had sold him performance-enhancing drugs that he used to secretly dope horses under his care.

He agreed to cooperate with the government after his arrest in 2020 in connection with the FBI's sweeping horse-doping probe.

The investigation led to charges against a number of individuals including the prominent trainer Jason Servis.

Under questioning by Giannelli attorney Louis Fasulo in U.S. District Court in New York, Cohen was asked about his cooperation agreement in which he admitted to fixing races years ago as well as to doping horses.

Fasulo wanted to know if that was his incentive for becoming a cooperator–to avoid being charged with bribery and facing substantially more punishment.

“My incentive was to try to make right for my wrongs and tell the truth,” Cohen said in response.

Under further questioning, he said it could have been an incentive but then wasn't sure.

“I guess it could have been,” Cohen testified. “I don't know if it was an incentive or not at the time.”

Giannelli is on trial for conspiring to distribute adulterated and misbranded performance-enhancing drugs which were intended to enhance the performance of horses competing at racetracks across the country.

She worked with Seth Fishman, a veterinarian found guilty in February of manufacturing PEDs that were purchased by trainers to dope horses. Prosecutors say Fishman's drugs were designed to avoid post-race testing.

Fasulo told the jury that when Giannelli worked for Fishman out of her home in Delaware, she didn't do anything wrong because her actions didn't involve criminal intent.

Cohen was reluctant to talk about his race-fixing past under Fasulo's probing, part of an effort to damage Cohen's credibility.

At first, Cohen testified he couldn't remember how many races he fixed by bribing drivers to hold their horses back.

“It was more than five, I don't think it was over 20,” he told the jury.

He also couldn't remember how many drivers he paid off, then admitted, “maybe 10.”

When questioned by prosecutor Sarah Mortazavi, Cohen said his cooperation deal doesn't prevent prosecutors from other jurisdictions from charging him with bribery.

He hasn't been sentenced yet and said it would be up to the judge to determine his punishment.

The day concluded in the afternoon with the prosecution reading into the record portions of a witness's testimony from the Fishman trial.

The witness was Courtney Adams who worked for Fishman as an office manager for five years. She was unavailable to testify against Giannelli.

In her testimony, Adams said that Giannelli helped with labeling Fishman products. Prosecutors contend some of those labels violated federal regulations.

“She would suggest edits so the client would know what the product was,” Adams said in her testimony.

During the reading, prosecutors also showed the jury a 2013 text in which Fishman said that Giannelli made over $250,000 in 2012.

During her cross-examination, which was also read into the record, Adams admitted to Fasulo that she didn't know if that was true or not.

The trial resumes Monday.

The Thoroughbred industry's leading publications are working together to cover this key trial.

The post Cohen Cross-Examined As Giannelli Trial Recesses for Weekend appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Courtney Adams, 34, testifying from Florida via video conference, told jurors that Fishman and Equestology were all about “testability.” That meant creating “product” that couldn't be detected in post-race testing by horse racing authorities, she said.

During her testimony in U.S. District Court in Manhattan, prosecutors showed an email in which a veterinarian who was a client of Equestology asked about one of the products, equine growth hormone, and whether it was testable.

“That was our biggest selling point, that he specialized in making product that wasn't testable,” Adams testified, referring to Fishman.

The witness, who had been an Equestology office manager and then a sales rep, said that Fishman told her there was a risk of regulators coming up with a test to detect the substance. If that happened, Fishman said he would have to create another product that would be undetectable, she said.

“That was the whole point of that product to be not testable,” Adams testified.

Fishman and Giannelli face conspiracy charges in a wide-ranging scheme to dope horses with performance-enhancing drugs to boost the treated horses' chances of winning races. Those charged include prominent trainer Jason Servis, who has maintained a not guilty plea and is awaiting trial. Others, such as trainer Jorge Navarro, have pled guilty and been sentenced.

Prosecutors say the accused were motivated by greed to win races and acted without regard to the welfare and safety of horses.

While on the stand, Adams admitted helping to mislabel products that Fishman created for clients around the country and in the United Arab Emirates. She said she also shipped vials of product without any labels.

Under questioning by prosecutor Andrew Adams, the witness said that she knew “in general terms” that some of those who purchased Fishman's drugs were horse trainers.

“He would discuss why they wanted them and why they were being used by them,” she testified.

“And did he say why they were being used by trainers?” the prosecutor asked.

“He said they were being used because they were untestable,” Adams replied.

The jury also heard the witness cite the names of some of the drugs Equestology sold.

Those products included Endurance, Bleeder, Hormone Therapy Pack, HP Bleeder Plus, and PSDS.

Adams testified that PSDS stood for Pain Shot Double Strength, describing it as a “double strength product for pain.”

She indicated she didn't know what the other substances were for.

Adams said she stopped working for Equestology in 2017.

“I was over it to be honest,” Adams testified. “I didn't want to do it anymore.”

As she left, Fishman asked her not to discuss their business with anyone, Adams noted.

“I said okay,” she said.

She said in 2018 investigators with the Food and Drug Administration approached her to ask about Fishman. She said she wasn't comfortable talking to them without a lawyer.

After Fishman, Giannelli, Servis, and about two dozen others connected to horse racing were indicted in March 2020 in the doping case, Adams said a friend sent her a link with a story about the arrests.

She said after reading it she contacted law enforcement.

“I read the story, and I realized they didn't have the whole story, and I felt obliged to give it to them,” Adams told the jury.

She said as a result of the information she provided, government lawyers offered her a non-prosecution agreement.

During cross-examination, Fishman's attorney Maurice Sercarz sought to suggest that Adams was motivated to contact law enforcement out of personal animosity against Fishman.

She admitted that before she left Equestology, Fishman had accused her of theft and using Equestology funds to purchase personal items.

She told Sercarz she was upset about those accusations “because they were false.”

During his cross-examination, Giannelli's attorney, Louis Fasulo, questioned Adams about whether she would work at a place that put horses in danger.

No was her response.

Adams also said she didn't think she was breaking the law when labeling products she said were mislabeled.

Toward the end of the day, Long Island retired Federal Bureau of Investigation agent Angela Jett took the stand to read from notes of an interview she conducted with Fishman in 2010.

Jett said she had interviewed Fishman as a potential government witness in a $190 million securities fraud case. That case involved a magnate named David Brooks and a body-armor company he owned on Long Island. Fishman worked for Brooks, an owner of Standardbred racehorses that competed in New York and elsewhere.

According to the notes, Fishman told Jett that he had supplied performance-enhancing drugs to Brooks, who administered them to horses before racing.

Brooks was found guilty in 2010 of charges connected to the fraud and died in prison while serving a 17-year prison sentence.

Under cross-examination by Sercarz, Jett acknowledged that her notes don't say whether Fishman learned of the doping at the time it occurred or “after the fact.”

He also pointed out that Jett's notes show that when Brooks asked Fishman to dope a horse, Fishman refused.

Fishman's admissions to Jett never led to charges.

The trial resumes Jan. 24.

The Thoroughbred industry's leading publications are working together to cover this key trial.

The post Full Day of Testimony in Fishman Trial appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Baffert had requested that the U.S. District Court (Eastern District of New York) order NYRA to pay his attorney's fees because he is the “prevailing party,” though he has only obtained a preliminary injunction to race at NYRA tracks.

NYRA's response argues that the $450 to $975 hourly fees Baffert's lawyers charge are “disproportionately high,” and that Baffert is attempting to take advantage of a legal provision which shouldn't apply. The provision is designed to “incentivize attorneys to represent individual civil rights plaintiffs that might otherwise be unrepresented,” according to NYRA.

“Plaintiff, the most prominent trainer in Thoroughbred racing, can afford to pay his lawyers and would have brought this action regardless of whether he could obtain an award of attorneys' fees,” NYRA wrote in the Sept. 27 filing in United States District Court (Eastern District of New York).

NYRA notified Baffert ahead of the Belmont Stakes that it was suspending his ability to enter horses in races or have stall space at its racetracks due to his recent history of medication violations (five over a one-year period), the conflicting statements he provided to media around the Medina Spirit scandal, and Churchill Downs' suspension of the trainer.

Judge Carol Bagley Amon of the Eastern District of New York determined that NYRA's suspension of Baffert should not have taken place without some sort of hearing allowing him to address the organization's accusations against him. Although NYRA was asserting its private property rights in the case, Amon said the organization is closely entwined enough with the state that its suspension of Baffert constituted a state action, thereby requiring due process.

NYRA has since issued a statement of charges against Baffert, and scheduled a hearing for the trainer to begin on Sept. 27.

Read more at the Thoroughbred Daily News.

Additional stories about Baffert's Kentucky Derby positive and ensuing legal battles can be found here.

The post NYRA Calls Baffert’s Attempt To Collect Legal Fees ‘Premature’ appeared first on Horse Racing News | Paulick Report.

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The plaintiff in the case was Secretary of Labor Martin J. Walsh, who had filed a complaint against Asmussen's KED Equine LLC and Asmussen Racing Stables. The period in question runs from June 7, 2016 through at least Sept. 8, 2020, and the two parties had been litigating the dispute since 2019 before reaching an agreement.

The secretary alleges that during the time period in question, Asmussen failed to pay his employees in New York overtime wages for all hours worked and failed to make, keep and record adequate and accurate work records.

Among the 170 employees, one, Javier Rivera, is owed $44,367.84, and another, Diego Armando Pantoja, is owed $36,450.06. The average amount owed to the 170 workers is about $3,000.

Asmussen did not reply to a text seeking comment.

This is not the first time Asmussen has had to deal with the Department of Labor, which has on three occasions levied charges that the trainer has been in violation of the Fair Labor Standards Act of 1938. Asmussen was sued by the government in 2012 and 2015 and both times it was alleged that he was paying flat wages for overtime hours worked and did not properly keep track of the amount of hours an employee had worked. He settled on both occasions.

Asmussen, who races at several different tracks at once, including the NYRA tracks, has one of the biggest training operations in the country.

Asmussen, who became he winningest North American trainer in the history of the sport during the Saratoga meet, is far from the first trainer to run afoul of the Labor Department. In 2019, Chad Brown was ordered to pay $1.6 million in back wages, liquidated damages and civil penalties for violations of the Fair Labor Standards Act. Other New York trainers who have been ordered to make payments covering back wages include Kiaran McLaughlin, Linda Rice, Gary Contessa and Jimmy Jerkens.

The trainers who have spoken upon the matter have argued that the labor departments do not understand the unique nature of backstretch work, which may require an employee to work in the mornings, take a few hours off, and then to come back in the afternoon for short period. McLaughlin and Contessa both cited labor issues and onerous fines when announcing they had left the sport. McLaughlin is the agent for jockey Luis Saez and Contessa is back to training after a brief retirement.

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Zayat claims to be $19 million in debt, and a massive chunk of that money is owed to Thoroughbred-related individuals and entities.

According to documentation filed Apr. 21 in United States Bankruptcy Court (District of New Jersey) by trustee Donald Biase, “The Transfer[s] were made with actual intent to hinder, delay, or defraud creditors of the Debtor.”

As an exhibit, Biase attached a copy of a Sept. 3, 2020, domestic wire transfer for $175,000 between two law firms.

Zayat's name is not listed on that TD Bank document. But the trustee, presumably through forensic accounting practices, is alleging that “the Debtor's books and records disclose” that Zayat orchestrated the transaction, which was allegedly made “without the Debtor receiving a reasonably equivalent value in exchange.”

The recipient of the money was listed as Cohen Tauber Spievack & Wagener, a New York-based law firm. According to a posting from 2015 on that company's website, the firm has represented Zayat in court and “advises Zayat Stables on transactional matters and sponsorship deals related to American Pharoah.”

The timing of that $175,000 transaction is notable because five days later, Zayat filed his petition for bankruptcy protection, signing off on paperwork that alleged he only had $314.22 to his name.

In a separate court complaint, the trustee also wants $28,848 back from New York University (NYU) that Zayat allegedly paid to the school within 90 days prior to his bankruptcy filing.

Zayat has four children, and they all either graduated from or are/were attending NYU. The youngest of the siblings, Emma, just enrolled at the school in 2020, according to her LinkedIn profile (Emma was the inspiration for the name of Littleprincessemma, the dam of American Pharoah).

Even if that money was paid for tuition or a pre-existing debt, the complaint states that (among a list of other legal reasons) the trustee can try to reclaim those funds because “the Debtor was insolvent at the time and [NYU] had reasonable cause to believe that the Debtor was insolvent.”

In the cases of both allegedly fraudulent transfers, the trustee is going after the money not by chasing Zayat himself for it, but by listing both the law firm and NYU as defendants, meaning they would be on the hook for repayment if the judge rules in the trustee's favor.

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The government's memorandum of law filed Mar. 5 in United States District Court (Southern District of New York) addresses a number of alleged legal flaws in the defendants' motions to dismiss, including several that prosecutors state would be more appropriately argued when the case goes to trial, not before it.

The defendants' motions, prosecutors allege, “do not actually seek the dismissal of the Indictment, but are more accurately described as premature motions regarding the sufficiency of the Government's evidence to be presented at trial…. The Second Circuit makes clear that a challenge to whether a statutory element has been satisfied is a matter for trial.”

The government's filing continues: “Defendants Seth Fishman, Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., Christopher Oakes, Jorge Navarro, and Erica Garcia each ask that this Court insert novel, unsupported, and self-serving language into the text of [federal drug laws] in an effort to avoid felony liability for their illegal misbranding conspiracies.” The memo notes that a dismissal motion filed by defendant Michael Tannuzzo on different grounds should also not be granted.

The filing takes aim at the defendants' creative assertion that government prosecutors are overstepping their legal boundary by bringing charges under the applicable federal statute–the Food Drug and Cosmetic Act (FDCA)–when instead, the defendants argue, the case should instead fall under the authority of the Federal Trade Commission (FTC).

Back on Feb. 5, the defendants made the somewhat surprising legal argument that the Horseracing Integrity and Safety Act of 2020 (HISA)–which was signed into law a full nine months after the arrests were made–allegedly gives “plenary authority,” or absolute regulatory power, to the FTC in all federal matters pertaining to horse racing.

The government's Mar. 5 filing laced into that assertion: “The defendants' respective discussions of the passage of what is commonly referred to as [HISA] in the Fishman Motion and the Oakes Motion shed no light on the purpose or application of the FDCA. That is because the 116th Congress's passage of the HISA in 2020 has no bearing upon the intent of the 75th Congress's passage of the FDCA in 1938, and no implication for the plain language of the FDCA's provisions criminalizing misbranding and adulteration of animal drugs.

“As an initial matter, the Supreme Court disfavors reliance on subsequent legislative history in assessing the language and meaning of prior statutes,” the government's filing continues. “In particular, while 'subsequent legislation can of course alter the meaning of an existing law for the future' and 'can even alter the past operation of an existing law' (constitutional objections aside) if it makes that retroactive operation clear…it cannot inferentially amend the purpose behind passage of a prior statute, as defendants wish.

“The dangers of such post-hoc analysis are plain here. Congress did not–in either the FDCA or the HISA–indicate its intent either to acknowledge or create a 'racehorse industry' exception to the criminal prohibition against the distribution of adulterated and misbranded drugs with the intent to defraud or mislead in the FDCA, nor did it so indicate with respect to any other federal criminal law.

“The defendants' arguments in this respect reflect what seems to be a purposeful misreading of both the HISA and the charges against them: the defendants are not charged with violating state racing anti-doping rules and regulations, for which no federal analogue existed prior to the passage of the HISA; they are charged with felony misbranding and adulteration of drugs in interstate commerce in violation of the FDCA. No interpretative gymnastics are required to 'make sense' of one statute in light of the other.”

The government's filing sums up: “The HISA contains no criminal penalties because Congress determined sufficient criminal penalties were already provided for in existing federal criminal laws, laws which the HISA expressly does not modify. Ultimately, though, no reading of the Congressional tea leaves is required. There is no contradiction between the FDCA and the HISA, and no retrospective ambiguity in the text of the former arises from the text of the latter.”

Other counts of the government's case against the alleged dopers are not affected by this recent series of motion to dismiss, and trials are expected to begin in the second half of 2021. But one defendant, Scott Robinson, who has already pleaded guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses, has a sentencing hearing scheduled Mar. 9.

The multi-state simultaneous sting netted the high-profile arrests of trainers Navarro and the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, plus a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

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According to federal prosecutors, one of their alleged conspiracies involved Navarro allegedly dosing elite-level sprinter X Y Jet “with 50 injections [and] through the mouth” of a performance-enhancing drug (PED) allegedly manufactured and distributed by Fishman before a big win in the 2019 G1  Golden Shaheen in Dubai.

According to wiretaps, Navarro allegedly texted immediate thanks to Fishman for his role in the victory, then four days later allegedly requested “1,000 pills ASAP,” purportedly for use on other horses in his 29% three-year-average win-rate stable.

Ten months later, in January 2020, X Y Jet died suddenly, allegedly from cardiac distress that has never been fully documented.

And two months after that, in March 2020, the feds swooped in.

In a multi-state simultaneous sting, they arrested Navarro, Fishman, and 27 others in an alleged “widespread, corrupt scheme” that centers on Navarro, the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, and a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

On Nov. 6, a superseding indictment replaced the version from March, adding wire fraud charges against Servis and two veterinarians involved in the scheme to allegedly drug race horses. Five individuals named in the original indictment were not included in the superseding indictment, raising speculation that the five were cooperating with law enforcement authorities and could testify against the remaining defendants.

A motion to dismiss Counts 1 and 2 of the superseding indictment (both of which deal with drug alteration and misbranding conspiracies) got filed Feb. 5 on behalf of Fishman and Lisa Giannelli. Her role allegedly involved using Fishman's veterinary license to distribute prescription drugs without a valid prescription.

Soon after the Friday filing, Navarro's attorney tacked on a letter announcing his client was legally joining the motion to dismiss.

It is possible other defendants will also legally join that original motion. As of Friday night's  deadline for this story, no related filings were apparent on the federal court database–but there were inaccessible files marked “sealed document placed in vault.”

Fishman is charged in both Counts 1 and 2. Navarro is charged in Count 1, and is charged in Count 3, another alleged drug conspiracy. Giannelli is charged in Count 2.

According to the Feb. 5 memorandum of law in support of the motion to dismiss filed jointly by Fishman and Giannelli's attorneys, there are three independent grounds for the motion:

• “First, Counts 1 and 2 fail to allege that Dr. Fishman, Ms. Giannelli, and their alleged co-conspirators committed acts or conduct that are within the scope of the applicable federal criminal statute, Section 333(a)(2) of the Food Drug and Cosmetic Act (FDCA).

• “As discussed…an agreement aimed at the distribution of misbranded and/or adulterated products with the intent to mislead or defraud state racehorse commissions and racetracks is not a federal crime within the scope of the felony provisions of the FDCA.

• “Second, application of the rule of lenity bars prosecution of Dr. Fishman and Ms. Giannelli for the conduct alleged in Counts 1 and 2.

• “Third, Section 333(a)(2) is unconstitutionally vague as applied to the conduct alleged in Counts 1 and 2.”

One of the supporting sub-points seemingly argues that the yet-to-be-implemented regulatory body borne out of the Horseracing Safety and Integrity Act (HISA) is actually the proper arm of the federal law that should be handling the case.

The memorandum states: “The HISA of 2020 Gives the FTC Plenary Authority over Horse Racing.”

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