Maximum Security owners' Derby lawsuit may avoid trial

In a sign that Gary and Mary West’s lawsuit against the Kentucky Horse Racing Commission could avoid a trial, the plaintiffs on Friday filed a motion for summary in federal court in the Eastern District of Kentucky.

The Wests have called for Maximum Security’s disqualification from first to 17th in the Kentucky Derby to be reversed by a judge rather than jury, and that their colt be the race’s official winner. Accordingly, they’ve also requested all “privileges to which they are or may be entitled as the official winner of the 145th Kentucky Derby."

According to Cornell’s Legal Information Institute, if a motion for summary judgment is granted, “a decision is made on the claims involved without holding a trial. Typically, the motion must show that no genuine issue of material fact exists, and that the opposing party loses on that claim even if all its allegations are accepted as true.”

Attorneys representing the Wests include Barry Stilz, who operates out of Lexington, Ky., and Dennis Drazin, whose company runs the Monmouth Park racetrack in New Jersey.

The Wests have entered into evidence two DVDs containing video copies of Churchill Downs feeds from the Derby along with a May 23 email from Stilz to John Forgy, general counsel for the KHRC. In the letter, Stilz calls upon the commission to "publicly declare both Maximum Security and Country House to be the winners of the 145th Derby" until a ruling is made, and that the race's purse money and trophy be returned "to be held in escrow until final adjudication."

Since the Derby, Maximum Security has relocated to Monmouth, where he is back on the work tab toward a potential start in the July 20 Haskell Invitational (G1).

Separate from the lawsuit, West challenged the connections of four Derby rivals involved in a controversial run around the far turn at Churchill Downs — Country House, War of Will, Bodexpress and Long Range Toddy — to a $5 million head to head challenge apiece should any of those horses meet Maximum Security the rest of the season.

Stewards promoted Country House, second across the wire behind Maximum Security, to a Kentucky Derby victory.

In a May 15 notice of legal action by the Wests, they argued the following points regarding the disqualification:

The Kentucky Derby is the most prestigious horse race in the world. In 144 prior runnings of the Kentucky Derby no horse that crossed the finish line first had ever been disqualified because of a foul in the race. That changed when, in the 145th edition of the Kentucky Derby (“Derby”), number 7, Maximum Security, an undefeated three-year-old colt ridden by jockey Luis Saez and owned by Gary and Mary West, crossed the finish line first by 1¾ lengths only to be disqualified by the Stewards to seventeenth. The insubstantiality of the evidence relied on by the stewards to disqualify Maximum Security, and the bizarre and unconstitutional process to which the Plaintiffs were subjected before and after the disqualification, are the subjects of this action.

The Stewards had the responsibility to supervise, control, and regulate the running of the Derby.

Either during the running of the Derby or after, the Stewards could have directed that a sign be flashed on the infield board informing the public that an inquiry into the running of the Derby was being conducted by them to determine whether a foul had been committed.

Having not observed any foul or interference, there was no inquiry by the Stewards into the running of the Derby.

The jockey (Flavien Prat) who finished on the horse who ran second (#20 Country House) to Maximum Security, despite the absence of any inquiry by the Stewards, lodged an objection against Maximum Security alleging interference.

The Stewards disallowed Prat’s objection because it was meritless.

After Prat objected the jockey (Jon Court) on the horse who finished seventeenth in the Derby (#18 Long Range Toddy) lodged his objection against Maximum Security.

The Stewards sustained Court’s objection even though that horse (Long Range Toddy) beat only two of the 19 horses in the race.

As a result of Court’s objection, Maximum Security was disqualified from first to seventeenth.

Country House was moved up from second to first as the result of the disqualification.

The Stewards announced their decision to disqualify Maximum Security in a room filled with representatives of the media and other persons.

The Stewards’ statement was broadcast to millions of people around the world via television, the internet, and various streaming devices.

The statement said: “We interviewed affected riders” and “determined” that Maximum Security had “drifted out and impacted the progress of Number 1 (War of Will), in turn interfering with the 18 and 21 (Bodexpress).”

Bodexpress had finished fourteenth.

The Stewards said nothing as to whether the alleged foul altered the finish of the Derby or otherwise caused any horse to have been denied a better placement in the order of finish.

Neither the jockey (Tyler Gaffalione), owner, and trainer of War of Will, nor the jockey (Chris Landeros), owner, and trainer of Bodexpress, lodged any objection with the Stewards.

Neither Tyler Gaffalione, the rider of the horse the Stewards said was the most “affected” by Maximum Security, nor Chris Landeros, the jockey of Bodexpress, was interviewed by the Stewards.

When the Stewards said in their statement that they “interviewed affected riders,” they were not truthful because neither Gaffalione nor Landeros was interviewed by the Stewards.

After announcing their statement, the Stewards refused to answer any questions.

Plaintiffs appealed the Stewards’ decision to the Kentucky Horse Racing Commission in the hope of getting the Stewards’ decision reviewed and reversed.

The Commission denied Plaintiffs’ appeal telling them that “the law does not provide for an appeal” and “the stewards’ findings of fact and determination” are “final” and not “subject to appeal.”

As a result of the disqualification, Plaintiffs, the trainer, and the jockey of Maximum Security were denied any part of the $1,860,000 share of the Derby purse as well as a professional accomplishment that any horseman would cherish for life, plus the very substantial value that a Kentucky Derby winner has as a stallion.

The winner’s share of the Derby purse was paid to the connections of Country House, even though Prat’s objection was meritless, indeed frivolous.

Country House’s connections received approximately $1.26 million more for being elevated to first than they would have received for second.

The betting public was adversely affected by the disqualification.

It is estimated that those who had wagered on Maximum Security to either win, place, or show, in exactas, trifectas, superfectas, doubles, pick 3s, pick 4s, pick 5s, or the Super High Five would have, but for the disqualification of Maximum Security,  collected winnings estimated to be more than $100 million.

This action seeks to redress the Defendants’ violations of Plaintiffs’ Due Process Rights under Section 1 of the Fourteenth Amendment to the United States Constitution and to enforce their rights under the laws of the Commonwealth of Kentucky.

The remedy requested, inter alia, is a reversal of the decision disqualifying Maximum Security and reinstatement of the original order of finish confirming that Maximum Security is the official winner of the Derby who remains undefeated.

In a related matter, it has been reported that a $100 million class action lawsuit is being considered by those who wagered on Maximum Security and were impacted by the lack of transparency and integrity associated with the disqualification process that lasted between 22 and 23 minutes. In the aftermath of that decision, Twin Spires and Churchill Downs Inc.-related companies promptly announced that their customers would be reimbursed for wagers on Maximum Security, which can be viewed as an admission that Churchill itself disagreed with the stewards’ decision.

Those bettors who did not wager through Churchill-related companies were left with no financial recourse, notwithstanding that Churchill received significant revenue from all of the outlets to whom they sent their signal.

Since Gary and Mary West are not involved in any potential class action there will be no further comment from the West team on that issue, although Gary and Mary West have empathy for those people who lost approximately $100 million on their wagers because of the stewards’ actions. If and when a class action suit is filed, questions related to the filing should be directed to the counsel of record in the class action.