Parties in McIngvale Lawsuit Considering Settlement Talks

Prominent horsemen in a civil lawsuit involving alleged horse auction fraud are apparently taking initial steps toward an out-of-court settlement, according to documents recently filed in a Texas federal court.

Eclipse Award-winning trainer Bob Baffert and fellow defendants, Florida agents J.B. and Kevin McKathan, on Oct. 12 filed an unopposed motion for temporary abatement in the legal action brought against them in September by horse owner and furniture magnate James McIngvale.

The motion, which was granted Oct. 17 by U.S. District Judge Samuel B. Kent, asked for a stay in the proceedings of the lawsuit, stating the parties will "attempt to effect an amicable resolution" and have hopes of "resolving this suit without further court action."

McIngvale, the owner of Gallery Furniture in Texas and a one-time client of Baffert, in September filed a suit that alleged, in part, that Baffert and the McKathan brothers received secret commissions and kickbacks on horses purchased at public auction on the businessman's behalf.

A response from the defendants to the original complaint was due Oct. 16. But prior to that deadline, lawyers representing the McKathans approached the McIngvale legal team about abatement, said Dan Pipitone, a Houston attorney who is associate counsel for the plaintiff.

"They came to us and asked us if we could at least talk about an amicable resolution," said Pipitone. "We agreed to it – there is no reason to litigate a matter if we can find some kind of resolution – but we didn't want it to go on indefinitely."

The abatement lasts until Dec. 6, which is the date set for the court's initial pre-trial and scheduling conference in Galveston, Texas. The order grants a temporary suspension of formal discovery, such as depositions, but allows for "informal discovery."

"We expect something later this week," Pipitone said Oct. 16 of the informal discovery. "We are expecting documents, books, and hard drives."

Houston attorney Robin C. Gibbs, who is lead counsel representing the McKathans and author of the most recent motion, did not return calls from The Blood-Horse seeking comment. But Seattle attorney Richard Yarmuth, who is part of a separate legal team representing Baffert, said he thought it was prudent for his client to back the abatement request submitted by his co-defendants.

"There is a mutual recognition that it would be good to take a breather from court-appointed deadlines," he said. "It will allow us to explore whether there is a possibility for settlement, whether there is a basis for settlement."

Pipitone said he has seen few abatement requests during his career.

"I have practiced some 27 years, and I can count on one hand the amount of cases where you had a stay of proceedings," he said. "But we wouldn't agree to a stay or abatement unless it was in our best interest to move things along."

McIngvale, who deferred comment on the latest filing to his attorneys, said in his original complaint that in 2001 he orally agreed to pay the McKathans a 5% commission on horses they purchased on his behalf, and later, on the brothers' advice, contracted Baffert as a trainer and advisor.

The complaint alleges the McKathans and Baffert took secret commissions on an unspecified amount of horses purchased from 2001-2004, submitting as evidence a copy of an alleged $95,000 kickback check from consigning agent Murray Smith on the $950,000 purchase of Work at the 2003 Keeneland April 2-year-olds in training sale.

Pipitone said the total amount of money McIngvale claims he was bilked out of is still being calculated.

"But we have a pretty good idea," he said.

Baffert and McIngvale had measures of success during their brief tenure together, highlighted by multiple grade II winner During, who earned $822,364 in 22 career starts with six victories in 2003-2004. In the days shortly after a third-place finish by During as the 2-1 favorite in the Del Mar Breeders' Cup Handicap Sept. 9, 2004, the Cherokee Run colt and 15 other West Coast horses owned by McIngvale were reportedly transferred from Baffert's barn to that of trainer Nicholas J. Hines.

McIngvale and Baffert also at one time teamed up on Wimbledon, an earner of $443,818 who won the 2004 Louisiana Derby (gr. II); Bull Market, an earner of $232,856 who won the 2002 Norfolk Stakes (gr. II) and was fourth behind Vindication in the 2002 Breeders' Cup Juvenile (gr. I) at Arlington Park; and the graded stakes-placed Consecrate, who was fifth behind Action This Day in the 2003 Juvenile at Santa Anita Park.

During, Wimbledon, and Consecrate were all purchased by McIngvale at public auction during his period of association with the McKathans and Baffert. Bull Market was a $140,000 RNA at the 2001 Keeneland September yearling sale.

McIngvale was on the national owners list of top 100 earners in 2003 and 2004, when his runners earned $999,519 and $1,396,671, respectively. He currently has some horses in training with his sister-in-law, Laura Wohlers, who earlier this year moved her training operation from Texas to California. McIngvale's lone blacktype winner of 2006 came in January when the Peter Miller-trained Actxecutive won the He's Predictable Stakes at Turf Paradise.

According to an online NTRA biography, McIngvale jumped into the Thoroughbred racing game in 1996, and reportedly spent $1 million at auction for five yearlings in his first auction season. His first big runner was Laydown, who won the 1997 Kentucky Cup Juvenile Stakes (gr. III) while in the training care of Nick Zito.

In the undated bio, McIngvale credits the McKathans with strengthening his program starting in 2002.

"I tried to do things myself, but found out that I couldn't get to the big races that way and be successful at the highest levels," he was quoted as saying. "When I got involved with J.B. and Kevin McKathan at Ocala last year, it all turned around."