Wong Files Federal Complaint Against HISA and FTC

The latest development in Jonathan Wong's ongoing case stemming from a June 2023 metformin positive saw him file a complaint against the Federal Trade Commission (FTC) and the Horseracing Integrity and Safety Act (HISA) Authority in the District Court for the Western District of Louisiana, Lafayette Division. Wong is currently serving a two-year ban under HISA.

In the complaint filed Tuesday, Wong asserts the Horseracing Integrity and Welfare Unit (HIWU) had threatened the immigration status of one of his intended witnesses before a prior arbitration hearing-something the agency denies doing.

Wong also targets HISA's constitutionality in the complaint, his arguments overlapping those that frame the plaintiffs' case against HISA that has made its way up through the Fifth Circuit Court of Appeals, one now almost certain to be heard by the Supreme Court.

Wong claims HISA's rules are unconstitutional because HISA's delegation of federal regulatory power to the Authority “violates the private nondelegation doctrine,” and that HISA's rules violate the Seventh Amendment's right to a jury trial.

“The Court should declare HISA and the HISA Rules to be unconstitutional, preliminarily and permanently enjoin Defendants from enforcing HISA and the HISA Rules against Wong, and vacate the final decision and civil sanctions imposed against Wong,” the complaint states.

The legal journey to this point has already been a winding one, and involves a commonly-prescribed human diabetes drug that appears to be playing an out-sized role in the federal organization's anti-doping crusade.

The Wong-trainee Heaven and Earth (Gormley) broke her maiden at Indiana Grand on June 1 but subsequently tested positive for metformin. As a matter of protocol at that time, HIWU initially provisionally suspended Wong at the beginning of June when the A sample returned a positive finding for Metformin.

The HISA Authority subsequently announced that it had modified the rules surrounding provisional suspensions. Under the revised provisions, responsible parties who request B Sample confirmation following a positive test for a banned substance would no longer face a provisional suspension until the B sample findings are returned.

In Wong's case, he was notified on Aug. 9 that the B Sample confirmed the Metformin positive.

Though Wong was technically permitted to return to training for a brief period while the B sample was being processed, he explained at the time that his owners did not wish to transfer the horses back with the B Sample results expected imminently, and effectively has not trained in jurisdictions under HISA's purview since July 2.

Wong can, however, start horses in those jurisdictions currently operating outside of HISA's jurisdiction. His stable is currently based at Delta Downs in Louisiana.

Earlier this year, a HISA arbitration panel imposed on Wong the maximum possible sentence for such a violation-a two-year ban and $25,000 fine. The two-year period of ineligibility retroactively started July 1, 2023, when Wong's initial provisional suspension was first imposed.

In April, an FTC chief administrative law judge affirmed that ruling. Wong's request for the FTC to review that decision was denied, setting the case up for adjudication in federal court.

The complaint includes an allegation hitherto absent in prior filings. Wong claims that Luis Gerardo Hernandez Perez, a former groom who was prescribed metformin, had physical contact with Heaven and Earth on the day of the subject race.

Wong adds that he had intended to submit a witness statement from Perez into the arbitration panel hearing, but was prevented from doing so as HIWU had threatened Perez's immigration status.

“According to his sworn statement, Perez cared for the Horse for the seven months leading up to the day of the subject. Perez was prescribed Metformin. He stated he routinely urinated in the Horse's stall, regularly failing to wash his hands prior to having physical contact with the Horse,” the statement

“Wong intended for Perez to testify in person at the arbitration hearing. But in its opposition to Perez's sworn statement, HIWU threatened Perez's immigration status. HIWU argued that if Perez's statement were allowed to be filed, Perez should be required to testify in person, be accompanied by a court-certified Spanish-English interpreter, and be required to provide a passport and the visa under which he worked for Wong-none of which HIWU demanded for any other witness,” the complaint states.

The complaint also lists six causes of action. They include an assertion that the final decision be vacated as it is “unlawful, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” due to question marks over the chain of custody of blood and urine samples sent from the Industrial Laboratories to the University of Illinois (UIC) at Chicago Analytical Forensic Toxicology Laboratory.

Wong claims that Industrial shipped the B Sample of urine to the University of Illinois on July 10, 2023, for example, but that “UIC's records show discrepancies, with one record stating the B Sample was received on July 11, 2023, and another on July 26, 2023.”

Wong further claims that on July 18, 2023, Industrial shipped the B Sample of blood to UIC.

“UIC acknowledged receiving the B Sample of blood on July 19, 2023, but it did not check in the B Sample of blood until a week later-on July 26, 2023,” the complaint states. “UIC did not provide any shipping tracking information for its receipt of the B Samples of urine or blood.”

The TDN asked HISA and HIWU for comment on the allegations detailed in the complaint. A HIWU spokesperson wrote that the agency “did not threaten the immigration status of any witness” during the Wong proceedings.

“HIWU is carefully evaluating all the allegations, as the arbitrator found that Mr. Wong had not testified truthfully during the hearing,” the HIWU spokesperson wrote.

Indeed, in her original ruling arbitrator Nancy Holtz had questioned the veracity of Wong's claims, arguing that he had been “untruthful” during the hearing proceedings.

“I find that Mr. Wong has not met his threshold burden of establishing the source of the contamination and thus there is no mitigation that might possibly be considered for Wong, and his sanction should be two years of Ineligibility,” wrote Holtz in her finding.

Holz also added that while Wong is “no doubt a decent person who, in his own way, has tried to put the safety and welfare of his horses first,” he had failed to take the necessary steps to prevent the possibility of environmental contamination occurring.

“If Mr. Wong was engaged in routine, frequent trainings of his staff regarding not urinating in the stalls, keeping hands clean and so on-which I do not believe-he certainly did not couple this with any level of monitoring, enforcement, or deterrence such as through imposing consequences for violators,” Holz wrote.

Wong's complaint filed this past Tuesday includes several requests for relief, including awarding Wong “all nominal, compensatory, and other damages to which he may be entitled,” and that the federal court grant “a jury trial on all issues so triable.”

When asked for comment, the trainer's long-time owner Brent Malmstrom, who has bankrolled much of this legal fight, wrote that “the complaint speaks for itself.”