civil action no. 1:21-cv-03329- cba-rml the new york

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

BOB BAFFERT,

Plaintiff,

v.

THE NEW YORK RACING

ASSOCIATION, INC.,

Defendant.

Civil Action No. 1:21-cv-03329-

CBA-RML

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S

MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT AND TO STAY NYRA’S

RENEWED SUSPENSION PROCEEDINGS

GREENBERG TRAURIG, LLP

54 State Street, 6th Floor

Albany, New York 12207

(518) 689-1400

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, New York 10004

(212) 558-4000

(518) 689-1492

September 29, 2021

Case 1:21-cv-03329-CBA-RML Document 37 Filed 09/29/21 of 28 PageID #: 1610

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................4

LEGAL STANDARD ......................................................................................................................8

ARGUMENT ...................................................................................................................................9

I. NYRA DID NOT VIOLATE THE COURT’S ORDER AND SHOULD NOT BE

HELD IN CONTEMPT. ......................................................................................................9

A. The Order Did Not Clearly and Unambiguously Prohibit NYRA from

Initiating a Hearing Regarding Plaintiff’s Conduct. ................................................9

B. There Is No Clear and Convincing Evidence of NYRA’s Noncompliance. ..........13

C. NYRA Diligently Complied with the Order. .........................................................15

II. PLAINTIFF’S CHALLENGES TO NYRA’S HEARING PROCEDURES ARE

IRRELEVANT TO CONTEMPT AND, IN ANY EVENT, MERITLESS. .....................17

III. PLAINTIFF HAS FAILED TO SHOW THAT THE COURT SHOULD AWARD

HIM FINES OR ATTORNEYS’ FEES AND COSTS......................................................20

CONCLUSION ..............................................................................................................................22


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TABLE OF AUTHORITIES

Page(s)

CASES

A.V. by Versace, Inc. v. Gianni Versace S.p.A.,

87 F. Supp. 2d 281 (S.D.N.Y. 2000) (Leisure, J.) .....................................................................9

Alcon Vision, LLC v. Lens.com, Inc.,

No. 18-cv-407, 2020 WL 6591463 (E.D.N.Y. Nov. 10, 2020) (Mann, Mag. J.) ......................8

Alvarez v. Hayward,

No. 06-cv-745, 2006 WL 2023002 (N.D.N.Y. July 18, 2006) ................................................11

BeautyBank, Inc. v. Harvey Prince LLP,

811 F. Supp. 2d 949 (S.D.N.Y. 2011) (Batts, J.) .......................................................................8

Blossom South, LLC v. Sebelius,

987 F. Supp. 2d 289 (W.D.N.Y. 2013) ....................................................................................19

Casse v. N.Y. State Racing & Wagering Bd.,

70 N.Y.2d 589 (N.Y. 1987) .....................................................................................................18

Chao v. Gotham Registry, Inc.,

514 F.3d 280 (2d Cir. 2008).....................................................................................................10

City of N.Y. v. Local 28, Sheet Metal Workers’ Int’l Ass’n,

170 F.3d 279 (2d Cir. 1999).....................................................................................................15

Convergen Energy LLC v. Brooks,

No. 20-cv-3746, 2020 WL 5549039 (S.D.N.Y. Sept. 16, 2020) (Liman, J.) ...........................15

Drywall Tapers & Pointers of Greater N.Y., Local 1974 of I.B.P.A.T. AFL-CIO v.

Local 530 of Operative Plasterers & Cement Masons Int’l Ass’n,

889 F.2d 389 (2d Cir. 1989).......................................................................................................9

Equal Emp’t Opportunity Comm’n v. Local 638,

81 F.3d 1162 (2d Cir. 1996).......................................................................................................8

Fed. Commc’n Comm’n v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) .................................................................................................................17

Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp.,

No. 06-cv-0085, 2007 WL 2982295 (S.D.N.Y. Oct. 10, 2007) (Sand, J.) ..............................22

Galvin v. N.Y. Racing Ass’n,

70 F. Supp. 2d 163 (E.D.N.Y. 1998) (Ross, J.) .................................................................11, 17


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Gucci Am., Inc. v. Weixing Li,

768 F.3d 122 (2d Cir. 2014).............................................................................................8, 9, 15

Guichard v. Town of Brookhaven,

26 F. Supp. 3d 219 (E.D.N.Y. 2014) (Seybert, J.) ...................................................................19

Haua v. Prodigy Network, LLC,

No. 20-cv-2318, 2021 WL 3931877 (S.D.N.Y. Sept. 2, 2021) (Fox, Mag. J.) ..........................8

Jacobson v. N.Y. Racing Ass’n,

33 N.Y.2d 144 (N.Y. 1973) .....................................................................................................17

John B. Stetson Co. v. Stephen L. Stetson Co.,

128 F.2d 981 (2d Cir. 1942).......................................................................................................9

Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp.,

No. 04-cv-7369, 2006 WL 2128785 (S.D.N.Y. July 28, 2006) (Swain, J.) .........................9, 12

King v. Allied Vision, Ltd.,

65 F.3d 1051 (2d Cir. 1995).............................................................................................7, 9, 20

Levin v. Tiber Holding Corp.,

277 F.3d 243 (2d Cir. 2002).................................................................................................8, 13

Manhattan Indus., Inc. v. Sweater Bee by Banff, Ltd.,

885 F.2d 1 (2d Cir. 1989) ........................................................................................................21

Morrissey v. Brewer,

408 U.S. 471 (1972) .................................................................................................................17

Nat’l Liab. & Fire Ins. Co. v. Rick’s Marine Corp.,

No. 15-cv-6352, 2021 WL 1906485 (E.D.N.Y. May 12, 2021) (Hurley, J.) ...........................12

Nat’l Nutritional Foods Ass’n v. Novitch,

589 F. Supp. 798 (S.D.N.Y. 1984) (Pollack, J.) ......................................................................15

Next Investments, LLC v. Bank of China,

___ F.4th ___, No. 20-602-cv, 2021 WL 3851922 (2d Cir. Aug. 30, 2021) .......................8, 20

O’Hearn v. Bodyonics, Ltd.,

56 F. Supp. 2d 302 (E.D.N.Y. 1999) (Spatt, J.) .......................................................................15

Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc.,

369 F.3d 645 (2d Cir. 2004).....................................................................................................20

Patsy’s Brand, Inc. v. I.O.B. Realty, Inc.,

No. 99-cv-10175, 2021 WL 3418475 (S.D.N.Y. Aug. 5, 2021) (Wood, J.) ................13, 21, 22


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Perez v. Danbury Hosp.,

347 F.3d 419 (2d Cit. 2003) ............................................................................................. passim

Perfect Fit Indus. v. Acme Quilting Co.,

673 F.2d 53 (2d Cir. 1982).......................................................................................................20

Saumell v. N.Y. Racing Ass’n,

58 N.Y.2d 231 (N.Y. 1983) ...................................................................................12, 17, 18, 19

St. Lucia v. Novello,

726 N.Y.S.2d 488 (N.Y. App. Div. 3d Dep’t 2001) ................................................................18

Zino Davidoff SA v. CVS Corp.,

No. 06-cv-15332, 2008 WL 1775410 (S.D.N.Y. Apr 17, 2008) (Sullivan, J.) ........................21

STATUTES

New York Civil Procedure Law Article 78 .............................................................................19, 20

OTHER AUTHORITIES

7 James W. Moore, et al., Moore’s Federal Practice § 37.51(7)(b) (2020) .....................................8

9 N.Y.C.R.R. § 4022.12 .................................................................................................................17


Defendant The New York Racing Association, Inc. (“NYRA”) respectfully submits this

memorandum of law in opposition to Plaintiff Bob Baffert’s (“Plaintiff”) motion to hold NYRA

in civil contempt and to stay NYRA’s renewed suspension proceedings (ECF No. 35 (“Motion”)).

PRELIMINARY STATEMENT

Plaintiff moves to hold NYRA in contempt for providing Plaintiff exactly what he argued

he was entitled to in support of his motion for a preliminary injunction — notice and an opportunity

to be heard. Pursuant to NYRA’s letter dated May 17, 2021 (the “May 17 Letter,” Ex. A),1 NYRA

suspended Plaintiff from entering or stabling horses at its Racetracks2 and did not offer an

opportunity for Plaintiff to appear at a hearing to present evidence, call witnesses, or present his

case in advance of taking this action. (See O’Rourke Aff. at ¶¶ 12-14; Ex. A.) After briefing and

oral argument, this Court issued a memorandum and order on July 14, 2021 enjoining NYRA

“from enforcing the suspension of Baffert which NYRA issued by letter dated May 17, 2021”

because Plaintiff’s due process rights entitled him to a pre-suspension hearing. (Mem. & Or.

Granting Pl.’s Mot. for Prelim. Inj. (ECF No. 26 (“Order”)) at 27-28.) NYRA immediately lifted

Plaintiff’s suspension and permitted Plaintiff to race and stable horses at the Racetracks. Horses

trained by Plaintiff raced at the Saratoga summer meet (O’Rourke Aff. at ¶¶ 25-30), and from the

date the Order was issued, Plaintiff has not been barred from NYRA’s Racetracks (id. at ¶¶ 22-

24).

In compliance with the Order, NYRA developed detailed and comprehensive hearing rules

and procedures (“Hearing Rules and Procedures” (Ex. C)) governing any disciplinary proceedings

1 Citations to “Ex. __” refer to the exhibits attached to the accompanying declaration of

David T. O’Rourke (“O’Rourke Aff.”).

2 “Racetracks” refers to the Aqueduct Racetrack, Belmont Park Racetrack, and Saratoga

Race Course.


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that it commences seeking to exclude a licensee of the New York State Gaming Commission

(“Gaming Commission”) from the Racetracks. (Ex. C § 1; O’Rourke Aff. at ¶¶ 38-42.) These

procedures call for a hearing overseen by an independent hearing officer, require that a formal

statement of charges be provided to a licensee in order to initiate proceedings, and permit a licensee

to be represented by counsel, testify, produce witnesses, present documentary evidence, and

examine opposing witnesses and evidence. (Ex. C §§ 3, 10-11.) After the hearing, the hearing

officer must issue a hearing report with findings of fact, conclusions, and a recommended

disposition. (Id. § 14.) A panel is then empowered to adopt, modify, or reject the hearing officer’s

findings and to impose discipline, if any, on a licensee. (Id. § 16(b).) Pursuant to these procedures,

on September 10, 2021, NYRA served a statement of charges on Plaintiff. (“Statement of

Charges” (Ex. F).)

Plaintiff contends that these actions constitute “an overt effort to evade this Court’s rulings”

and requests the Court to order NYRA to (i) “[c]ease and desist from all conduct concerning or

relating in any way to any suspension of Baffert until after the conclusion of this case”; (ii) pay a

daily fine of $5,000 for each day NYRA allegedly does not comply with the Court’s directive; and

(iii) reimburse him for reasonable attorneys’ fees and costs associated with filing his Motion. (Pl.’s

Mem. in Supp. of Mot. for Contempt and Stay (ECF No. 35-1) (“Pl.’s Mem.” or “Memorandum”)

at 7, 15-16.) Because NYRA at all times acted in good faith to comply with the Order, and Plaintiff

has not demonstrated that the harsh tool of contempt should be wielded here, the Court should

deny the requested relief. Indeed, NYRA’s actions that are at issue were undertaken in compliance

with the Order and provide Plaintiff what he asked for — a hearing during which he could present

his side of the story.


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This Court should not hold NYRA in contempt — or issue a cease and desist order

prohibiting NYRA from taking any action relating to potentially suspending Plaintiff — because

Plaintiff has failed to meet his heavy burden to show any of the three elements for contempt: (1) a

clear and unambiguous prohibition in the Order barring NYRA from establishing and utilizing a

hearing process with respect to Plaintiff; (2) clear and convincing proof that NYRA violated the

Order; and (3) evidence that NYRA has not diligently attempted to comply with the Order in a

reasonable manner.

First, Plaintiff fails to meet the first element for a finding of contempt because the Order

does not clearly and unambiguously prohibit NYRA’s administrative proceeding against Plaintiff.

The Order prohibits only the enforcement of the suspension issued pursuant to the May 17 Letter,

which did not provide Plaintiff a pre-suspension hearing. The Court held that NYRA likely had

the authority to exclude Plaintiff from the Racetracks (Order at 13-15), and NYRA has now

implemented Hearing Rules and Procedures to provide Plaintiff with the due process this Court

found lacking in the Order.

Second, Plaintiff has not come forward with “clear and convincing” evidence of

noncompliance with the Order. To the contrary, the “evidence” to which Plaintiff points

demonstrates the stark contrast between the process followed in connection with the May 17

suspension and NYRA’s actions at issue in the Motion. Unlike the procedure used in connection

with the May 17 suspension, NYRA’s current process permits Plaintiff an opportunity to defend

against formal charges brought against him by “testify[ing], produc[ing] witnesses, present[ing]

documentary evidence, and examin[ing] opposing witnesses and evidence” before disciplinary

action, if any, is imposed. (Ex. C at §§ 3(b)(4), 11(d).)


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Third, Plaintiff has not and cannot show that NYRA failed to diligently comply with the

Order in support of the third element for contempt. In order to adhere to the Order, NYRA

immediately vacated the May 17 suspension and, since NYRA lifted Plaintiff’s suspension, the six

horses he entered in races at the Saratoga Race Course earned $390,400 in purses.

Moreover, Plaintiff’s arguments challenging the adequacy of NYRA’s notice and

procedures are both meritless and irrelevant to the Court’s resolution of Plaintiff’s motion seeking

to hold NYRA in contempt of this Court’s Order. Because Plaintiff argues that the holding of any

hearing as to his conduct is in violation of the Order, the propriety of NYRA’s hearing procedure

is irrelevant. In any event, Plaintiff is wrong that NYRA was required to afford notice of its

procedural rules or an opportunity to appeal the final determination; due process requires neither.

Plaintiff’s argument that he had no notice of the conduct prohibited by NYRA, despite the fact that

common law has long recognized the standards and interests NYRA intends to uphold, is without

merit. Likewise unavailing is Plaintiff’s argument that NYRA should have provided a proposed

penalty, as the terms of a penalty, if any, should and will be set only upon a panel’s consideration

of the hearing officer’s recommendation and all applicable evidence.

Finally, even if the Court were to find that NYRA’s actions were inconsistent with the

Order, Plaintiff should not be awarded attorneys’ fees and costs as a consequence of NYRA’s good

faith attempt to comply with the Order. The Court likewise should not impose the daily fines that

Plaintiff seeks because no harm has resulted from NYRA’s actions and because such fines are

unnecessary to ensure NYRA’s continued compliance with its Order.

BACKGROUND

In 2020 and 2021, Plaintiff, a thoroughbred racehorse trainer licensed to train horses in

New York State, committed four drug testing violations, as found by state racing regulators in

Arkansas, California and Kentucky. (O’Rourke Aff. at ¶ 8.) In the wake of those violations, a


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horse trained by Plaintiff tested positive for betamethasone after finishing first in the Kentucky

Derby. (Id. at ¶¶ 9-10.) Churchill Downs, the host of the Kentucky Derby, suspended Plaintiff

from entering horses at its racetrack pending further investigation. (Id. at ¶ 11; Ex. A).) In the

May 17 Letter, NYRA notified Plaintiff that it was temporarily suspending him from entering or

stabling horses at the Racetracks, citing as its bases the positive test result from the Kentucky

Derby, Plaintiff’s contradictory statements to the media attempting to explain the positive test,

Plaintiff’s temporary suspension from Churchill Downs, and Plaintiff’s four other drug testing

violations in the past year. (O’Rourke Aff. at ¶¶ 12-13; Ex. A.)

On June 14, 2021, Plaintiff commenced this action and moved for an order to preliminarily

enjoin NYRA from enforcing the May 17 suspension. (Compl.; Mot. for Prelim. Inj. (ECF No. 3).)

The Court held that NYRA likely had the authority to act as it did under New York State law, but,

consistent with Plaintiff’s due process rights, NYRA should have provided him a pre-suspension

hearing or, at least, a prompt post-suspension hearing. (Order at 15, 18.) As a result, the Court

enjoined NYRA “pending the final hearing and determination of this action, from enforcing the

suspension of Baffert which NYRA issued by letter dated May 17, 2021.” (Id. at 27-28.) NYRA

immediately complied by lifting the suspension and permitting Plaintiff to enter and stable horses

at the Racetracks. (O’Rourke Aff. at ¶ 22.) On July 16, 2021, NYRA’s Senior Vice President of

Racing Operations advised Plaintiff that he was free to enter and stable horses. (Id. at ¶ 23.) Since

then, Plaintiff has raced six horses in six Saratoga summer meet races that earned $390,400 in

purses. (Id. at ¶¶ 25-30; see also Pl.’s Mem. at 3 (describing races in which horses trained by

Plaintiff competed since the May 17 suspension was vacated).)

NYRA’s Racing Committee carefully reviewed the Order and developed comprehensive

Hearing Rules and Procedures to follow uniformly when determining whether a licensee’s conduct


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warrants revocation or suspension of his or her access to the Racetracks. (O’Rourke Aff. at

¶¶ 38-42; see Ex. C § 1.) The Hearing Rules and Procedures require NYRA to commence the

proceedings by providing notice of the charges against the licensee and notice of the details of the

hearing (the “Notice of Hearing” (Ex. D)), including the presiding hearing officer (the “Hearing

Officer”) and the parties’ right “to be represented by counsel, to testify, to produce witnesses, to

present documentary evidence, and to examine opposing witnesses and evidence.” (Ex. C § 3.)

They also provide an opportunity to submit an answer in response to the Statement of Charges (id.

§ 4), reciprocal disclosure rights (id. § 8), and the evidentiary burden and standard of proof to be

applied at the hearing (id. § 12). An independent Hearing Officer is designated to preside over the

pre-hearing and hearing procedures “in a fair and impartial manner.” (Id. § 10(a).) The testimony

and other evidence introduced during the hearing are recorded verbatim and compiled as a record

of the hearing (“Record of the Hearing”). (Id. § 13(a).) After the hearing, the Hearing Officer

issues a written report (the “Hearing Report”), which is submitted to the parties and a panel

appointed by NYRA’s President (the “Panel”). (Id. §§ 2(h); 14.) The Hearing Report includes

findings of fact, conclusions, a recommended disposition, and, if the Hearing Officer finds a

revocation or suspension of the licensee’s right to access the Racetracks warranted, a statement

describing how long the suspension or revocation should be in effect. (Id. § 14.) The licensee is

then given an opportunity to file any exceptions concerning the Hearing Report for the Panel’s

consideration. (Id. § 15.) After reviewing the Hearing Report, Record of the Hearing, and any

filed exceptions, the Panel issues a final decision (the “Final Decision”), adopting, modifying, or

rejecting any or all of the Hearing Report with a statement setting forth the facts supporting the

basis for the Final Decision. (Id. § 16(a), (b).)


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In accordance with the Hearing Rules and Procedures, NYRA’s Racing Committee

authorized the commencement of two separate proceedings against Plaintiff and another trainer,

Marcus J. Vitali. (O’Rourke Aff. at ¶ 50.) On September 10, 2021, NYRA served Plaintiff and

Marcus J. Vitali each with a Notice of Hearing and Statement of Charges, as well as copies of the

Hearing Rules and Procedures. (O’Rourke Aff. at ¶¶ 52, 70; Ex. C; Ex. D; Ex. F; Ex. J; Ex. K.)

The Statement of Charges brought against Plaintiff sets forth detailed factual allegations

and three charges alleging Plaintiff’s engagement in conduct detrimental to (i) the best interests of

racing; (ii) the health and safety of horses and jockeys; and (iii) NYRA’s business operations. (Ex.

F at 10-11.) The Notice of Hearing advised that the Hearing Officer presiding over Plaintiff’s

proceedings is the Honorable O. Peter Sherwood, a retired justice of the Supreme Court, New York

County, who previously served as Solicitor General of the State of New York and Corporation

Counsel of the City of New York. (Ex. D; Ex. E; O’Rourke Aff. at ¶¶ 53, 54.) Plaintiff served his

answer and accompanying exhibits to the Statement of Charges on September 24, 2021.

(O’Rourke Aff. at ¶ 69; see generally Ex. I.)

Notwithstanding that NYRA immediately lifted the suspension in compliance with this

Court’s Order, and that Plaintiff is not prohibited from entering or engaging in activities at the

Racetracks, Plaintiff filed the present Motion. (See O’Rourke Aff. at ¶ 22; Ex. B at 1 (explaining

that Plaintiff “is not currently under suspension at any NYRA racetrack” and “is free to enter and

stable horses at” the Racetracks).) Specifically, Plaintiff requests that the Court order NYRA to

(i) not take any action related to potentially suspending him until the conclusion of this action,

(ii) pay a daily fine of $5,000, and (iii) reimburse his attorneys’ fees and costs. (Pl.’s Mem. at 15-

16.) The Court should deny the relief Plaintiff seeks.


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LEGAL STANDARD

Holding a party in contempt is a “‘potent weapon,’ to which courts should not resort ‘where

there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.’” Perez v.

Danbury Hosp., 347 F.3d 419, 425 (2d Cit. 2003) (quoting King v. Allied Vision, Ltd., 65 F.3d

1051, 1058 (2d Cir. 1995)). Accordingly, a district court’s authority to hold a party in contempt

is “narrowly circumscribed.” Perez, 347 F.3d at 423 (citing Equal Emp’t Opportunity Comm’n v.

Local 638, 81 F.3d 1162, 1171 (2d Cir. 1996)). “[T]he harsh remedy of civil contempt” Haua v.

Prodigy Network, LLC, No. 20-cv-2318, 2021 WL 3931877, at *3 (S.D.N.Y. Sept. 2, 2021) (Fox,

Mag. J.), is only warranted where a movant establishes “that (1) the order the contemnor failed to

comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing,

and (3) the contemnor has not diligently attempted to comply in a reasonable manner.” Gucci Am.,

Inc. v. Weixing Li, 768 F.3d 122, 142 (2d Cir. 2014) (quoting Perez, 347 F.3d at 423-24). The

clear and convincing standard in the context of civil contempt “requires a quantum of proof

adequate to demonstrate a ‘reasonable certainty’ that a violation occurred.” BeautyBank, Inc. v.

Harvey Prince LLP, 811 F. Supp. 2d 949, 956 (S.D.N.Y. 2011) (Batts, J.) (quoting Levin v. Tiber

Holding Corp., 277 F.3d 243, 250 (2d Cir. 2002)). “Any doubt as to whether the requirements

have been met in a particular case must be resolved in favor of the party accused of the civil

contempt.” Alcon Vision, LLC v. Lens.com, Inc., No. 18-cv-407, 2020 WL 6591463, at *5 n.2

(E.D.N.Y. Nov. 10, 2020) (Mann, Mag. J.) (citing 7 James W. Moore, et al., Moore’s Federal

Practice § 37.51(7)(b) (2020)).


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ARGUMENT

I. NYRA DID NOT VIOLATE THE COURT’S ORDER AND SHOULD NOT BE

HELD IN CONTEMPT.

A. The Order Did Not Clearly and Unambiguously Prohibit NYRA from

Initiating a Hearing Regarding Plaintiff’s Conduct.

The Order does not clearly and unambiguously prohibit NYRA from establishing and

implementing a process for determining whether to restrict Plaintiff’s access to the Racetracks. A

court order is “clear and unambiguous” where it “leaves no uncertainty in the minds of those to

whom it is addressed, who must be able to ascertain from the four corners of the order precisely

what acts are forbidden.” Next Investments, LLC v. Bank of China, ___ F.4th ___, No. 20-602-cv,

2021 WL 3851922, at *8 (2d Cir. Aug. 30, 2021) (quoting King, 65 F.3d at 1058). Because “[a]

district court may not impose obligations on a party that are not unambiguously mandated by the

decree itself,” A.V. by Versace, Inc. v. Gianni Versace S.p.A., 87 F. Supp. 2d 281, 290-91

(S.D.N.Y. 2000) (Leisure, J.) (quoting King, 65 F.3d at 1058), “[a]ny ambiguities in an order

should be read in favor of the person charged with contempt.” Johnson & Johnson Vision Care,

Inc. v. CIBA Vision Corp., No. 04-cv-7369, 2006 WL 2128785, at *3 (S.D.N.Y. July 28, 2006)

(Swain, J.); see also Gucci Am., Inc., 768 F.3d at 142-43 (“[T]he longstanding, salutary rule in

contempt cases is that ambiguities and omissions in orders redound to the benefit of the person

charged with contempt.” (quoting Drywall Tapers & Pointers of Greater N.Y., Local 1974 of

I.B.P.A.T. AFL-CIO v. Local 530 of Operative Plasterers & Cement Masons Int’l Ass’n, 889 F.2d

389, 400 (2d Cir. 1989))).3

3 In his Memorandum, Plaintiff cites a case from 1942 for the proposition that, to establish

contempt, the “strict letter” of the injunction need not be violated as long as “the spirit of the

injunction” is violated. (Pl.’s Mem. at 9 (quoting John B. Stetson Co. v. Stephen L. Stetson Co.,

128 F.2d 981, 983 (2d Cir. 1942)).) But Plaintiff’s application of this case contradicts the standard

employed by courts in this circuit that a district court cannot impose additional obligations that are

not clearly and unambiguously provided for in a court’s decree. Gucci Am., Inc., 768 F.3d at


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Here, the Order clearly and unambiguously prohibits NYRA from enforcing the suspension

issued pursuant to the May 17 Letter, which is why NYRA immediately permitted Plaintiff to enter

and stable horses at the Saratoga Racetrack. See infra Section I.C. The Order, however, does not

address the conduct actually at issue in this Motion: NYRA’s decision to create and avail itself of

an evidentiary proceeding to determine whether, and to what extent, Plaintiff may be excluded

from the Racetracks at a future date.

In the Order, the Court held, for purposes of addressing Plaintiff’s motion for a preliminary

injunction, that NYRA likely should have afforded Plaintiff a pre-suspension hearing or prompt

post-suspension hearing. (Order at 18.) As a result, the Court enjoined NYRA “from enforcing

the suspension of Baffert which NYRA issued by letter dated May 17, 2021.” (Id. at 27-28

(emphasis added).) Contrary to Plaintiff’s assertions, NYRA’s September 10, 2021 announcement

that it would conduct “a hearing to investigate” charges NYRA brought against Plaintiff (Ex. D),

is not a “reissu[ance of] the same suspension” (Pl.’s Mem. at 8). Rather, it calls for the

commencement of a process that is separate from the enforcement of the suspension issued by the

May 17 Letter.4

142-43 (noting that an order cannot form the basis for contempt where parties cannot “ascertain

from the four corners of the order precisely what acts are forbidden” because of the “longstanding,

salutary rule in contempt cases . . . that ambiguities and omissions in order redound to the benefit

of the person charged with contempt”) (internal citations and quotation marks omitted); see also

A.V. by Versace, Inc., 87 F. Supp. 2d at 290-91 (“A district court may not impose obligations on a

party that are not unambiguously mandated by the decree itself.” (citing King, 65 F.3d at 1058)).

4 Plaintiff contends that “[i]f anything, the facts have moved more solidly in Baffert’s favor”

since the Court issued the Order. (Pl.’s Mem. at 8.) Plaintiff’s Motion, however, does not turn on

these facts but instead, on demonstrating that the “harsh remedy” of contempt is warranted because

it is so clear that NYRA’s adoption of the Hearing Rules and Procedures and the Statement of

Charges issued to Plaintiff contravene the Order. Plaintiff cannot meet this standard. And, in any

event, since the issuance of the Order, racetracks in other jurisdictions have functionally barred

horses trained by Plaintiff from races, or are contemplating doing so, in the wake of his repeated

medication-related violations. Specifically, Churchill Downs, which operates the Kentucky

Derby, issued new rules that would effectively prohibit horses trained by Plaintiff from entering


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In his Motion, Plaintiff misreads the Court’s Order and disregards the stringent

requirements to hold a party in contempt. First, Plaintiff’s assertion that the actions at issue

allegedly “run contrary to the spirit and intent of the Court’s Order” (Pl.’s Mem. at 7, 8),

impermissibly suggests that the Court can impose additional obligations not expressly provided

for as long as it follows “some general sense” of the Order. Chao v. Gotham Registry, Inc., 514

F.3d 280, 292 (2d Cir. 2008) (citing Perez, 347 F.3d at 424). A party can only be held in contempt

for violating an injunction’s clear and unambiguous language, not its spirit. See supra p. 8 at n.3.

In any event, providing Plaintiff a hearing to present evidence, call witnesses, and present his case

is consistent with the spirit of the Order. (See, e.g., Order at 13 (recognizing NYRA’s common

law right to exclude licensees from the Racetracks, provided that it is exercised consistent with

due process); id. at 22 (“A hearing would have allowed Baffert to submit evidence and make

argument regarding [the violations in other jurisdictions.]”).)

Second, Plaintiff suggests that the Court concluded that it is “too late” now to provide

Plaintiff a hearing. (Pl.’s Mem. at 7.)5 This mischaracterizes the Court’s statement. At oral

qualifying races for the Kentucky Derby and the Kentucky Oaks. (See O’Rourke Aff. at ¶ 76,

Ex. M.) Breeders’ Cup Limited, which administers the prestigious Breeders’ Cup series of races,

announced that it was conducting a review to determine whether Plaintiff will be permitted to

participate in this year’s Breeders’ Cup World Championships. (Id. at ¶¶ 77-78.)

5 Plaintiff further insists that his interpretation of the Court’s comment is consistent with

injunctions previously imposed on NYRA decades ago. (Pl.’s Mem. at 8 (citing Galvin v. N.Y.

Racing Ass’n, 70 F. Supp. 2d 163, 179 (E.D.N.Y. 1998) (Ross, J.); Alvarez v. Hayward, No. 06-

cv-745, 2006 WL 2023002, at *4 (N.D.N.Y. July 18, 2006)).) Not only do these prior injunctions

have nothing to do with the Order, or NYRA’s compliance with the Order, but they also used

different language and were issued in other contexts. In Galvin, for example, that court enjoined

NYRA from implementing its decision made after holding a four-day hearing to suspend a

veterinarian’s credentials. 70 F. Supp. 2d at 168, 196. Because it was NYRA’s position that it

had already afforded the veterinarian a proper hearing, it would make little sense for NYRA to

hold another hearing after the injunction issued. As for Alvarez, the injunction at issue there,

unlike the injunction here, unambiguously enjoined NYRA from barring that plaintiff from

working at the Saratoga Race Course until the resolution of the action. 2006 WL 2023002, at *4.


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argument, NYRA suggested that it would make a final determination regarding Plaintiff’s

suspension at NYRA’s regular August 11, 2021 board meeting and thereafter offer Plaintiff a “full-

blown hearing.” (Oral Arg. Tr. at 35:15-36:8 (ECF No. 35-7).) The Court asked if a hearing in

that context would be “too late,” but NYRA did not interpret any of the Court’s statements during

oral argument to suggest that a hearing before a final determination regarding a decision to take

disciplinary action would be too late. (See id. at 36:9.)

Third, Plaintiff reiterates that he seeks to challenge NYRA’s ability to invoke its common

law and regulatory authority to exclude licensees from its Racetracks, subject to the limits of due

process and the Order. (Pl.’s Mem. at 8.) As the Court already held, Plaintiff’s argument is

unlikely to succeed given NYRA’s common law right to exclude licensees from its Racetracks.

(Order at 13-15 (citing the common law right of exclusion from Saumell v. N.Y. Racing Ass’n, 58

N.Y.2d 231 (N.Y. 1983), when rejecting Plaintiff’s argument that NYRA lacked authority to

suspend him).) Regardless, a contempt motion is an inappropriate vehicle by which to raise this

challenge. The issue before the Court is whether NYRA’s conduct comported with the Order, not

whether NYRA has the authority to exclude licensees from its Racetracks. Alternatively, Plaintiff

may raise — and already has raised — these challenges in the proceedings before the Hearing

Officer. (See Ex. I at 7-10 (arguing in his answer to the Statement of Charges that “NYRA [d]oes

not have the [l]egal [a]uthority to [s]uspend Baffert”).)

At a minimum, the fact that the parties, both represented by counsel, interpreted the Court’s

Order differently suggests that the language in the Order did not clearly and unambiguously

prohibit NYRA’s actions. See Nat’l Liab. & Fire Ins. Co. v. Rick’s Marine Corp., No. 15-cv-6352,

2021 WL 1906485, at *2 (E.D.N.Y. May 12, 2021) (Hurley, J.) (“National interprets that language

of the Judgment one way, whereas RMC interprets it another, suggesting that the language was


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not unambiguous.”). To the extent there is any ambiguity in the Order as to whether NYRA could

proceed with giving Plaintiff the process he so vehemently sought when bringing his motion for a

preliminary injunction, this ambiguity should be resolved in NYRA’s favor and the Motion denied.

See Johnson & Johnson Vision Care, Inc., 2006 WL 2128785, at *3.

B. There Is No Clear and Convincing Evidence of NYRA’s Noncompliance.

Plaintiff fails to present any evidence of NYRA’s noncompliance with the Order, let alone

clear and convincing evidence of noncompliance. Proof of noncompliance is considered “‘clear

and convincing’ when the evidence demonstrates to a ‘reasonable certainty’ that a violation

occurred.” Patsy’s Brand, Inc. v. I.O.B. Realty, Inc., No. 99-cv-10175, 2021 WL 3418475, at *5

(S.D.N.Y. Aug. 5, 2021) (Wood, J.) (quoting Levin, 277 F.3d at 250). Where there is no clear and

unambiguous prohibition of the conduct at issue, it follows that there is no clear and convincing

evidence of contempt. See Perez, 347 F.3d at 425 (holding that the absence of clear and

unambiguous language prohibiting the challenged conduct resulted in a plaintiff’s failure to

establish clear and convincing evidence of contempt).

Plaintiff incorrectly asserts that the Notice of Hearing, Hearing Rules and Procedures, and

Statement of Charges demonstrate that “NYRA’s conduct is simply a repackaged version of the

same action already enjoined.” (Pl.’s Mem. at 9.) What the Hearing Rules and Procedures and

Statement of Charges actually show is a substantially different process that is now in place, which

was not afforded in connection with the May 17 suspension that the Court enjoined. The May 17

Letter calls for an immediate suspension for a length of time the Court characterized as

“indefinite,” without any mention of a post-suspension hearing. (Order at 24-25.) The Notice of

Hearing, however, calls for Plaintiff’s participation in an administrative hearing to investigate

formal charges brought against him, which may or may not result in his suspension as

recommended by a Hearing Officer and designated by a Panel after reviewing all applicable


https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=8960ff3c-fbb9-41ff-ac6a-b846a1b5c623&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4KM9-PNF0-TVW3-P1TP-00000-00&pdcomponentid=6412&ecomp=rzhdk&earg=sr18&prid=0e778224-c111-4060-ac65-78729d3de26d

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materials.6 (Compare Ex. A, with Ex. D.) And unlike the process afforded by the May 17 Letter,

the Notice of Hearing calls for Plaintiff to participate in an evidentiary process that provides

Plaintiff “the right to testify, produce witnesses, present documentary evidence, and examine

opposing witnesses and evidence” at a hearing conducted pursuant to NYRA’s comprehensive

Hearing Rules and Procedures. (Compare Ex. A, with Ex. D.)

Plaintiff’s speculation that NYRA created its Hearing Rules and Procedures to target him

is incorrect. (Pl.’s Mem. at 10, 13.) The Hearing Rules and Procedures are of general applicability

and are designed to afford the process this Court deemed necessary in its Order. (O’Rourke Aff.

at ¶ 35, 38, 41.) This is clear on the face of the Hearing Rules and Procedures themselves and is

evidenced by the fact that NYRA has also issued a Notice of Hearing and Statement of Charges to

Marcus Vitali in accordance with the same Hearing Rules and Procedures. (Ex. J; Ex. K.) Also

meritless is Plaintiff’s argument that because NYRA is not commencing a hearing against Linda

Rice, the Court should conclude that NYRA created and implemented its Hearing Rules and

Procedures to target Plaintiff. (Pl.’s Mem. at 12-13.) As Plaintiff concedes, the Gaming

Commission suspended Rice’s license for three years. (Id. at 12.) It would make no sense for

NYRA to implement a process pursuant to the Hearing Rules and Procedures to assess whether

Rice should be excluded from the Racetracks when the Gaming Commission’s determination

already prohibits her from racing.

6 Plaintiff’s assertion that the investigative hearing will result in his indefinite suspension

from the Racetracks is entirely speculative. (See Pl.’s Mem. at 5, 10, 14, 16.) Rather, in the event

the Hearing Officer finds the revocation or suspension of Plaintiff’s right to access is warranted,

he must “state the length of time that the revocation or suspension shall be in effect.”

(Ex. C § 14(b).) Afterwards, a Panel will review the Hearing Report, Record of the Hearing, and

any exceptions filed and subsequently issue a Final Decision concerning whether and to what

extent Plaintiff’s access to the Racetracks will be impacted. (Id. at § 16(a), (b).)


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Plaintiff argues that because his same conduct that prompted the May 17 Letter also

prompted the Notice of Hearing, NYRA’s actions must be in contravention of the Order. (Pl.’s

Mem. at 5, 9.) This argument relies on Plaintiff’s incorrect reading that the Order enjoined NYRA

“from suspending Baffert for the reasons set forth in NYRA’s May 17, 2021 letter until the

conclusion of this case. ([Order] at 27-28.)” (Pl.’s Mem. at 5 (emphasis added).) But the Order

actually instructs that NYRA cannot enforce the suspension set forth in the May 17 Letter — not

that the facts set forth in the May 17 Letter could not form the basis for an investigative hearing or

a suspension following an administrative hearing that comports with due process. (See Order at

27-28.) Presumably in support of his position, Plaintiff cites a case stating that an administrative

agency cannot promulgate a regulation sufficiently similar to a previous regulation enjoined by a

preliminary injunction in the absence of “new evidence.” (Pl.’s Mem. at 9 (quoting Nat’l

Nutritional Foods Ass’n v. Novitch, 589 F. Supp. 798, 800 (S.D.N.Y. 1984) (Pollack, J.)).) But

NYRA is not an administrative agency promulgating a regulation. And, in any event, the Court

held that it was impermissible to suspend Plaintiff for that conduct without first giving him a

hearing (Order at 18-24), not that a suspension based on that conduct is per se “constitutionally

problematic” (Pl.’s Mem. at 4).

C. NYRA Diligently Complied with the Order.

Because NYRA has complied — and will continue to comply — with the Order by

refraining from enforcing the suspension imposed by the May 17 Letter, Plaintiff fails to establish

that NYRA did “not diligently attempt[] to comply in a reasonable manner.” Gucci Am., Inc., 768

F.3d at 142 (quoting Perez, 347 F.3d at 423-24). In deciding whether a party has been diligently

compliant, the Court must determine whether NYRA has “been reasonably diligent and energetic

in attempting to accomplish what was ordered.” O’Hearn v. Bodyonics, Ltd., 56 F. Supp. 2d 302,

312 (E.D.N.Y. 1999) (Spatt, J.) (citing City of N.Y. v. Local 28, Sheet Metal Workers’ Int’l Ass’n,


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170 F.3d 279, 283 (2d Cir. 1999)). A defendant is not considered reasonably diligent if it ignored

an order or took “superficial actions that strain both the language and intent of the order.”

Convergen Energy LLC v. Brooks, No. 20-cv-3746, 2020 WL 5549039, at *23-26 (S.D.N.Y. Sept.

16, 2020) (Liman, J.) (internal quotation marks and citation omitted).

Here, NYRA has faithfully complied with the Order by permitting Plaintiff to race at the

Racetracks. (O’Rourke Aff. at ¶¶ 22-24.) As Plaintiff himself admits: “since the injunction, [he]

raced thoroughbreds at Saratoga Race Course multiple times.” (Pl.’s Mem. at 3; see also Pl.’s

Mem. on Law in Supp. of Mot. for Attorneys’ Fees and Costs (ECF No. 30-1) at 3 (“As a result of

the Court’s order, Baffert has entered horses, and will continue to enter horses, in Graded Stakes

races at Saratoga as part of its summer meet.”).) More specifically, Plaintiff has raced six horses

in six races that have earned $390,400 in purses (O’Rourke Aff. at ¶¶ 25-30), and he remains free

to race at any of NYRA’s Racetracks (Ex. B). NYRA’s decision to move forward with a hearing

to determine whether it should exclude Plaintiff from its Racetracks in the future does not change

this fact. Nor does it contravene the language or intent of the Order, which stresses the importance

of preserving licensees’ procedural due process rights. (Order at 18-25, 27-28.)

* * *

In sum, Plaintiff has failed to demonstrate that NYRA’s actions violate the Order. NYRA

has and will continue to abide by the Order. Accordingly, it would be inappropriate and

unnecessary to order NYRA to “[c]ease and desist from all conduct concerning or relating in any

way to any suspension of Baffert until after the conclusion of this case.” (Pl.’s Mem. at 15.) For

the same reasons, the Court should deny Plaintiff’s request to stay NYRA’s proceedings brought

pursuant to the Hearing Rules and Procedures. Plaintiff does not otherwise offer any independent

basis justifying this relief.


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II. PLAINTIFF’S CHALLENGES TO NYRA’S HEARING PROCEDURES ARE

IRRELEVANT TO CONTEMPT AND, IN ANY EVENT, MERITLESS.

Plaintiff attempts to use his Motion to litigate the procedural propriety of NYRA’s Hearing

Rules and Procedures, Notice of Hearing, and Statement of Charges. Even if Plaintiff’s arguments

were meritorious (and they are not), this contempt motion would not be the proper place to seek

redress. Plaintiff argues that holding any hearing — constitutionally sound or not — violates the

Order. Accordingly, his own argument forecloses the relevance of his challenges to NYRA’s

process.

Nevertheless, Plaintiff contends that the notice and opportunity to be heard that NYRA has

afforded him allegedly offends due process because (i) NYRA seeks to enforce new rules; (ii) the

charges and prohibited conduct are vague or undefined; (iii) NYRA has not followed its

procedures or identified the proposed penalty sought; and (iv) Plaintiff cannot appeal the Panel’s

Final Decision. None of Plaintiff’s arguments have merit.

First, in arguing that NYRA seeks to enforce new rules retroactively, Plaintiff conflates

NYRA’s Hearing Rules and Procedures with rules proscribing conduct. (Pl.’s Mem. at 11.)

Providing notice of procedures is not an element of due process. Cf. Galvin, 70 F. Supp. 2d at 174

(noting that due process is “flexible” and procedural protections may vary “as the particular

situation demands” (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))). Rather, due process

requires only fair notice of prohibited conduct. Fed. Commc’n Comm’n v. Fox Television Stations,

Inc., 567 U.S. 239, 253 (2012).

Second, Plaintiff’s arguments that NYRA’s rules are too vague to form the basis of charges

against him or that he was not provided fair notice of prohibited conduct are belied by the fact that


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NYRA merely seeks to enforce standards7 and interests8 that have long been recognized at

common law.9 Moreover, this Court likewise recognized NYRA’s authority to exclude licensees

from its Racetracks. (Order at 13-15 (citing the common law right of exclusion from Saumell as

foreclosing Plaintiff’s argument that it lacked legal authority to suspend him).) Plaintiff was on

notice, or should have been on notice, of both NYRA’s right to exclude and conduct prohibited by

drug-testing regimes of states in which he is licensed. (See O’Rourke Aff. at ¶ 8.) To the extent

Plaintiff believes the Statement of Charges or prohibited conduct are too vague and provide

impermissibly “loose standards” (Pl.’s Mem. at 12), Plaintiff may challenge them, and has

challenged them, in the proceedings before the Hearing Officer (See Ex. I at 3-6 (arguing in his

7 Compare Ex. F at 10-12 (noting that NYRA may “exercise its reasonable discretionary

business judgment to exclude” Plaintiff from, and deny him credentials to access, “the grounds it

operates, or any portion of such grounds”), with Saumell, 58 N.Y.2d at 238 (noting that a racetrack

proprietor holds a common-law right to exclude licensees provided that the exclusion is in “‘the

best interest of racing generally’ and in the exercise of ‘a reasonable discretionary business

judgment’”) (citation omitted), Jacobson v. N.Y. Racing Ass’n, 33 N.Y.2d 144, 150 (N.Y. 1973)

(same), and 9 N.Y.C.R.R. § 4022.12 (noting that a steward may exclude from its grounds a

licensee who “has been involved in any action detrimental to the best interests of racing

generally”).

8 Compare Ex. F at 10-11 (charging Plaintiff with engaging in conduct that “has harmed the

reputation and integrity of the sport,” that is “detrimental to the health and safety of horses and

jockeys,” and that impedes NYRA’s ability to operate the Racetracks “so that its patrons have

confidence that the sport is honestly conducted, protecting competitors from the participation in

tainted horse races, and safeguarding the wagering public”), with Casse v. N.Y. State Racing &

Wagering Bd., 70 N.Y.2d 589, 595-96 (N.Y. 1987) (“Without question, this State has an important

interest in assuring the fairness and integrity of horse racing[,] . . . in protecting competitors from

participation in tainted horse races and safeguarding the wagering public from fraud[,]” and

“protecting horses from the dangers of racing under the effects of analgesics or stimulants.”).

9 See also St. Lucia v. Novello, 726 N.Y.S.2d 488, 489-90 (N.Y. App. Div. 3d Dep’t 2001)

(rejecting contention that the statute and regulation are unconstitutionally vague where they

defined professional medical misconduct in general terms — conduct that evidences moral

unfitness to practice medicine — because it “provide[s] sufficient warning concerning the manner

in which the profession must be practiced”).


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answer to the Statement of Charges that “[t]he statement of [c]harges [f]ails to [c]omply with [d]ue

[p]rocess”)).

Third, Plaintiff’s argument that NYRA has not followed its Hearing Rules and Procedures

by omitting the penalty sought strains credulity. (Pl.’s Mem. at 14.) The Statement of Charges

clearly states that NYRA seeks to exclude Plaintiff from entering or stabling horses on the grounds

it operates. (Ex. F at 10-11.) Plaintiff’s contention that NYRA must state the length of suspension

it seeks to impose in the statement of charges does not make sense because the full hearing has not

yet happened. If NYRA had proposed a specific duration of suspension in the Statement of

Charges, Plaintiff presumably would have argued that such a proposal indicated that the decision

to suspend him for that length of time was a fait accompli — just as Plaintiff argued in his brief.

(Pl.’s Mem. at 5.) Ultimately, the length of a suspension, if any, will be determined by the Panel

only after considering the Hearing Officer’s recommendation following the conclusion of the

hearing. (See Ex. C § 14 (“If the Hearing Officer finds that revocation or suspension of the

respondent’s right to access, or engage in any activity at a NYRA Racetrack is warranted, the

Hearing Report shall state the length of time that the revocation or suspension shall be in effect.”);

id. § 16(b).)

Finally, Plaintiff faults the Hearing Rules and Procedures for not setting forth an appellate

process. But “the Due Process Clause generally requires only notice and an opportunity to be

heard; it does not mandate either the availability or completion of any appeals before the

deprivation of a protected interest.” Blossom South, LLC v. Sebelius, 987 F. Supp. 2d 289, 299

(W.D.N.Y. 2013) (collecting cases). In any event, the Hearing Rules and Procedures permit

Plaintiff the opportunity to submit exceptions after the issuance of the Hearing Report, which the

Panel must review before issuing its Final Order, to challenge “(1) the particular findings of fact,


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conclusions or recommendations with which the party disagrees and the reasons for such

disagreement; (2) general comments on the suitability of the hearing report; and (3) alternative

proposed findings of fact, conclusions or disposition for consideration and adoption by the Panel.”

(Ex. C § 15; 16(a).) Plaintiff may seek judicial review of the Final Decision and any challenges

to the process pursuant to Article 78 of the New York Civil Procedure Law and Rules. (O’Rourke

Aff. at ¶ 58); see Saumell, 58 N.Y.2d at 235 (challenging NYRA’s determination to exclude a

trainer pursuant to an Article 78 proceeding); see also Guichard v. Town of Brookhaven, 26 F.

Supp. 3d 219, 230 (E.D.N.Y. 2014) (Seybert, J.) (“[T]o the extent that Plaintiff claims a violation

of procedural due process under the Fourteenth Amendment, Plaintiff’s failure to commence an

Article 78 proceeding . . . preclude[s] such a claim.”).

In sum, Plaintiff’s arguments as to the sufficiency of NYRA’s process are both meritless

and irrelevant to the Court’s inquiry.

III. PLAINTIFF HAS FAILED TO SHOW THAT THE COURT SHOULD AWARD

HIM FINES OR ATTORNEYS’ FEES AND COSTS.

The Court should deny Plaintiff’s requests to order NYRA to (i) pay a daily fine of $5,000

for each day NYRA allegedly does not comply with the Court’s directive; and (ii) reimburse him

for reasonable attorneys’ fees and costs associated with filing his Motion. (Pl.’s Mem. at 15-16.)

First, Plaintiff has not established a basis to find NYRA in contempt of the Order and,

accordingly, no fine is warranted. Even if the Court were to find NYRA in contempt, which it

should not, NYRA requests that the Court impose no fine, or alternatively, limit the fine to an

amount of less than $5,000 per day. A district court should consider various factors when

calculating a coercive fine, including “‘the character and magnitude of the harm threatened by

continued contumacy,’ the ‘probable effectiveness of any suggested sanction in bringing about

[compliance],’ and the contemnor’s ability to pay.” Paramedics Electromedicina Comercial, Ltda


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v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 657-58 (2d Cir. 2004) (quoting Perfect Fit Indus.

v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir. 1982)). A district court has “‘broad discretion in

fashioning coercive remedies,’ including declining to award sanctions.” Next Investments, LLC,

2021 WL 3851922, at *7 (quoting King, 65 F.3d at 1062).

Here, Plaintiff has not been harmed by NYRA implementing the Hearing Rules and

Procedures and providing notice and opportunity to be heard pursuant to those procedures. Indeed,

this is the very process for which Plaintiff advocated in support of his motion for a preliminary

injunction. Plaintiff has and will continue to be able to race at the Racetracks unless the Panel

ultimately determines otherwise upon the conclusion of a comprehensive process. Moreover,

instituting any daily fine would be unnecessary to ensure NYRA’s compliance with the injunction.

To the extent the Court concludes that NYRA violated the injunction, such violation resulted from

NYRA’s good faith interpretation of the Order, rather than any willful attempt to circumvent the

Court’s directive. If given clear direction that it ought not proceed further with the evidentiary

hearing, NYRA will immediately halt those proceedings, regardless of any fine. Moreover, if the

Court finds a fine to be warranted, NYRA requests that the fine be awarded to the Clerk of Court,

rather than Plaintiff, given Plaintiff’s failure to demonstrate any “showing of compensable injury

or actual loss due to [NYRA’s alleged] failure to obey the court order.” Patsy’s Brand, Inc., 2021

WL 3418475, at *17 (collecting cases).

Second, Plaintiff fails to demonstrate that an award of attorneys’ fees and costs is warranted

here. “Although willfulness is not a prerequisite to the recovery of costs and attorney’s fees, the

overwhelming majority of courts in this Circuit strictly adhere to the general practice cited in”

Manhattan Indus., Inc. v. Sweater Bee by Banff, Ltd., 885 F.2d 1 (2d Cir. 1989) to “‘award the

reasonable costs of prosecuting the contempt, including attorney’s fees, only where violation of a


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court order is found to have been willful.’” See Zino Davidoff SA v. CVS Corp., No. 06-cv-15332,

2008 WL 1775410, at *7 (S.D.N.Y. Apr 17, 2008) (Sullivan, J.) (quoting Sweater Bee, 885 F.2d

at 8). Consistent with this principle, “the Second Circuit has approved the denial of a motion for

costs and attorney’s fees where the defendant’s attempts to comply were merely careless and even

where the defendant exhibits a callous disregard . . . for the mandates of the federal courts.” Id.

(internal citations and quotation marks omitted; alteration in original). In determining whether

contempt was willful, courts assess whether “the contemnor had actual notice of the court’s order,

was able to comply with it, did not seek to have it modified, and did not make a good faith effort

to comply.” Patsy’s Brand, Inc., 2021 WL 3418475, at *17 (quoting Fendi Adele S.R.L. v.

Burlington Coat Factory Warehouse Corp., No. 06-cv-0085, 2007 WL 2982295, at *12 (S.D.N.Y.

Oct. 10, 2007) (Sand, J.)).

NYRA diligently followed the Order by immediately permitting Plaintiff to enter horses at

the Racetracks and by implementing a hearing procedure designed to give Plaintiff and any other

Gaming Commission licensee a full opportunity to be heard before imposing any suspension. Even

if the Court were to ultimately find that NYRA’s conduct was inconsistent with the Order, NYRA’s

actions clearly demonstrate its good faith. Accordingly, an award of attorneys’ fees is not

warranted here.

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiff’s motion to hold NYRA

in civil contempt and to stay NYRA’s renewed suspension proceedings. Even if the Court finds

that NYRA’s actions were inconsistent with the Order, the Court should deny Plaintiff’s request

for attorneys’ fees and costs and a fine.


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Dated: Albany, New York

September 29, 2021 Respectfully submitted,

/s/ Henry M. Greenberg

Henry M. Greenberg ([email protected])

Cynthia L. Neidl ([email protected])

GREENBERG TRAURIG, LLP

54 State Street, 6th Floor

Albany, New York 12207

Telephone: (518) 689-1400

- and -

Ann-Elizabeth Ostrager ([email protected])

Harry F. Murphy ([email protected])

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, New York 10004

Telephone: (212) 558-4000

Attorneys for Defendant The New York Racing

Association, Inc.


civil action no. 1:21-cv-03329- cba-rml the new york

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