Jamgotchian, et al v. State Horse Racing Commission et al

BRIEF IN OPPOSITION re MOTION for Summary Judgment of Defendants

M.D. Pa.June 5, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JERRY JAMGOTCHIAN, ET AL., : Plaintiffs : No.1:16-cv-2035 : v. : Judge John E. Jones, III : STATE HORSE RACING : COMMISSION, ET AL., : Electronically Filed Defendants : : RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The Plaintiffs, Jerry Jamgotchian (“Jamgotchian”) and Eric Reed (“Reed”) (collectively, “Plaintiffs”), for their Response to the Defendants’ Brief in Support of their Motion for Summary Judgment, respectfully state as follows: INTRODUCTION The federal precedents governing this case are clear. If a regulation discriminates against interstate commerce, that is, if it provides for differential treatment of in-state and out-of-state economic interests, it is virtually per se illegal. See Oregon Waste Sys., Inc. v. Dep't of Envtl. Quality of State of Or., 511 U.S. 93, 99 (1994); see also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978); National Paint & Coatings Ass’n. v. City of Chicago, 45 F.3d 1124, 1131 (7th Cir. 1995). In such cases, the burden shifts to the proponent of the regulation to prove that it “advances a legitimate local purpose that cannot be adequately served by reasonable non- discriminatory alternatives.” Oregon Waste, 511 U.S. at 100-01. This first prong of the test requires a showing that the “discrimination is demonstrably justified by a valid fact unrelated to economic protectionism.” See id. at 106; see also Fort Gratiot Sanitary Landfill, Inc. v. Mich. Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 1 of 15 2 Dept. of Natural Resources, 504 U.S. 353, 362 (1992); Government Suppliers Consolidating Services v. Bayh, 975 F.2d 1267, 1277 (7th Cir. 1992). Should such a legitimate, non-economic, local purpose exist, the proponent must still demonstrate a lack of less discriminatory alternatives. Oregon Waste, 511 U.S. at 101. This showing must rest on “concrete record evidence,” not mere speculation that the discrimination serves some salutary purpose. See Granholm v. Heald, 544 U.S. 460, 492-493 (2005). Justifications for discriminatory restrictions on commerce must pass the “strictest scrutiny,” with the burden of justification so heavy that “facial discrimination by itself may be a fatal defect.” Oregon Waste, 511 U.S. at 101. Thus, when confronted with a discriminatory rule, the United States Supreme Court has “generally struck down the statute without further inquiry.” Granholm, 544 U.S. at 487, citing Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579 (1986). Indeed, any suggestion that a discriminatory statute or regulation warrants further analysis has been characterized as “largely illusory.” With only one exception, the Court has not upheld a statute it determined to be discriminatory and thus subject to the per se invalid standard.” Catherine Gage O'Grady, Targeting State Protectionism Instead of Interstate Discrimination Under the Dormant Commerce Clause, 34 San Diego L. Rev. 571 (1997). Under this analysis, Rule 163.255 cannot be upheld. The Rule plainly discriminates against interstate commerce; on its face and as enforced, it allows Pennsylvania claimed horses to race at Pennsylvania racetracks, but not out of state racetracks. And Defendants do not even purport to demonstrate any compelling state interest unrelated to economic protectionism. To the contrary, they advance only an economic protectionist purpose; that is, to prop up the pool of horses available to race at privately-owned Pennsylvania racetracks by insulating those racetracks from competition by out-of-state racetracks. [Defendants’ Response, p. 15.] Thus, Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 2 of 15 3 because “the Commerce Clause prohibits States . . . from advancing their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state,” Fort Gratiot, 504 U.S. at 359, Rule 163.255 must be set aside. ARGUMENT I. Rule 163.255 Violates the Commerce Clause. A. Rule 163.255 cannot survive the heightened scrutiny triggered by its differential treatment of in-state and out-of-state interests. As the PHRC concedes, a law which discriminates against interstate commerce “in purpose or effect” triggers heightened scrutiny under the Commerce Clause. [Defendants’ Response, p. 4.] Rule 163.255 clearly operates to impede to flow of commerce into states other than Pennsylvania, by permitting a Pennsylvania-claimed horse to be raced at the Pennsylvania track at which it is claimed, but not immediately moved and raced at an out-of-state track. The PHRC argues that this Rule can nonetheless escape strict scrutiny because the impermissible regulation impacts both individual owners who reside in Pennsylvania and individual owners who reside elsewhere in the United States, but imposing a restriction equally on all owners does not negate the improper discrimination in favor of one set of economic interests (those associated with Pennsylvania racetracks) over another (the interests of all racetracks located in other states). The disparate treatment of the racetracks gives rise to the discrimination in this case, even if the Rule were applied equally to all the individuals engaging in a claiming transaction. See Hughes v. Oklahoma, 441 U.S. 322, 344 (1979) (statute which applied to “any person” remained discriminatory, notwithstanding that it applied to in-state no less than out-of-state residents, because it forbad any person from selling, outside of Oklahoma, minnows caught in Oklahoma; such a regulation invokes the strictest scrutiny); see also Fort Gratiot, 504 U.S. at 362 (“[A] burden imposed by a State upon interstate commerce is not to be sustained simply because the Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 3 of 15 4 statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute.”). Likewise, the Rule remains discriminatory, and subject to strict scrutiny, even though it purports to prohibit a horse claimed at a particular Pennsylvania track from racing at both out-of- state tracks and the other two in-state tracks for the jail period.1 A statute which disadvantages out-of-state businesses is not rendered constitutional just because it harms some in-state businesses as well. In fact, if regulations protect a set of in-state operators from both out-of-state competitors and other in-state competitors “that simply exacerbates their protectionist effect.” Cloverland-Green Springs Dairies, Inc. v. Pennsylvania Milk Marketing Board, 298 F.3d 201, 214 (3rd Cir. 2002); see also Dean Milk Co. v. City of Madison, Wis., 71 S. Ct. 295, 298 (1951) (“It is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce.”); Carbone, 511 U.S. at 391-92 (finding the ordinance in question “no less discriminatory” because it favored a single local business rather than in-state businesses generally); Walgreen Co. v. Rullan, 405 F.3d 50, 58 (1st Cir. 2005) (noting courts have invalidated regulations which discriminate against out-of-state and some in- state entities to favor a limited group of in-state entities). In this case, any owner from any state who claims a horse at a Pennsylvania racetrack may race that horse at only that Pennsylvania racetrack for the duration of the claiming jail period or until a (purely discretionary) waiver is obtained. The Rule thus grants an advantage to the Pennsylvania racetrack unavailable to any out-of-state racetracks, rendering the Rule invalid under the Commerce Clause, regardless of any additional in-state impacts. 1 In fact, as discussed below, the undisputed record evidence indicates that the PHRC has consistently failed to enforce the Rule when it would have prevented a claimed horse from racing at another Pennsylvania track. [D.E. 22, Jamgotchian Declaration, ¶10.] The PHRC has not offered evidence that indicates to the contrary, and it cannot rely on the alleged neutrality of a statute which in practice disadvantages only out of state tracks. Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 4 of 15 5 The cases cited by the PHRC do not hold otherwise. In Nat'l Ass'n for the Advancement of Multijurisdiction Practice v. Castille, 799 F.3d 216, 225 (3rd Cir. 2015), while the court noted that the challenged regulation applied to both non-resident and resident applicants who wished to obtain reciprocal admission to the Pennsylvania bar without taking the bar exam, it also failed to identify any in-state economic interest (as opposed to the general interest of the state in regulating attorney admissions) which the regulation favored. Indeed, the court concluded that that regulation, unlike the one at issue here which clearly gives an advantage to a private Pennsylvania race track which would otherwise have to compete for entrants, arguably promoted interstate commerce by permitting reciprocity under certain circumstances. Similarly, the Supreme Court upheld the taxation scheme at issue in First Fed. Sav. & Loan Ass'n of Boston v. State Tax Comm'n, 98 S. Ct. 2333 (1978) because “[i[t applies a single neutral standard to state and federal institutions alike.” Id., at 2336. By contrast, on its face Rule 163.255 favors a subset of in-state racetracks (the track at which the horse was claimed) over all out of state tracks. The fact that the Rule can be characterized as impacting all owners equally does not change the fact that it impermissibly differentiates among the racetracks themselves. As Rule 163.255 disadvantages out-of-state businesses by limiting their access to a pool of horses immediately available to in-state businesses, its effect is inherently and improperly protectionist. While the PHRC argues that the regulation impacts both in-state and out-of-state tracks, as discussed above, that alone would not ameliorate the impermissible impact on interstate commerce. Moreover, the Daily Racing Form entries make it abundantly clear that the PHRC simply does not interpret the Rule so as to prohibit the racing of claimed horses at other Pennsylvania tracks. [D.E. 22, Jamgotchian Declaration, ¶10.] As the record indicates that horses claimed at Pennsylvania tracks are permitted freely to race at other Pennsylvania tracks, Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 5 of 15 6 the effect of the Rule is that any horse claimed in Pennsylvania remains ineligible to race anywhere in the United States for the jail time period (from five months to twelve months after the horse is claimed) except for in Pennsylvania, where they are immediately eligible to race. As a result, out-of-state tracks lose any advantages that they may have in attracting owners to their races, while the Pennsylvania tracks can draw freely from the captive pool of claimed horses. The PHRC cannot justify this scheme by it argument that other states have promulgated claiming jail restrictions, or that Pennsylania is not gaining a leg up on other state’s tracks since they too jail horses claimed at their tracks. The effects on commerce of each state jealously hoarding the horses entered in their meets are only amplified by multiple similar regulations. Indeed, the negative effects on interstate commerce resulting where numerous states have adopted economic protectionist laws in a tit for tat process is precisely what the dormant commerce clause is designed to preclude. See, e.g., Healy v. Beer Inst., 491 U.S. 324, 339-40, (1989); Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 583-84 (1986); see also Maxwell L. Stearns, A Beautiful Mind: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine, 45 William and Mary Law Review, 1, 11 (2003) (“The first dimension of dormant Commerce Clause cases involves state laws — most prominently tariffs and subsidies — that because they are obviously economically motivated would, if sustained, encourage adversely affected out-of-state interests to attempt to secure reciprocal protections in their own states.”). Nor can a discriminatory regulation be justified by the fact that it is merely a part of the claiming race system. The PHRC has made such races available to licensed and qualified owners, and the Supreme Court has “said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.’” Koontz v. St. John’s Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 6 of 15 7 River Water Management District, 133 S. Ct. 2586, 2594 (2013), quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). Thus, permitting owners to claim thoroughbred race horses in Pennsylvania only on the condition that these owners forego their right to conduct interstate commerce also violates the Constitution. Id. (discussing the “Unconstitutional Conditions Doctrine, that vindicates the Constitution’s enumerated right by preventing the government from coercing people into giving them up”); Frost & Frost Trucking Co. v. Railroad Com. of California, 271 U.S. 583, 593-94 (1926) (same). And it is disingenuous for the PHRC to argue that the Rule has “little impact outside of the discrete business transaction” in that the PHRC itself argues that the entire purpose of the Rule is to impact future transactions by artificially enhancing the pool of horses available for claiming races at Pennsylvania tracks rather than allowing owners to race the horse elsewhere. [Defendants’ Brief in Support of Motion for Summary Judgment, p. 15; see also Chuckas Dec., ¶¶ 4-5.] The ruling of the Kentucky Supreme Court, cited by the PHRC, does nothing to detract from the principles established by the United States Supreme Court in these cases. While the Kentucky Supreme Court upheld Kentucky’s claiming jail rule in Jamgotchian v. Kentucky Horse Racing Comm’n, 488 S.W.3d 594 (Ky. 2016), it did not properly apply the federal precedents that govern this analysis.2 Specifically, even though it acknowledged that the regulation in question did discriminate, id. at 610-11, the Kentucky court failed to apply the strict scrutiny dictated by the United States Supreme Court in such circumstances, a test which Defendants concede must be applied to discriminatory regulations. [Defendants’ Response, pp. 4-5.] Moreover, it is notable that the Kentucky rule was less restrictive that Rule 163.255, 2 Jamgotchian, who owns and races horses all across the country, has challenged the claiming jail rules in California, Kentucky, Indiana and Pennsylvania. The Indiana action is still pending, and California has eliminated its claiming jail rule after the California Attorney General opined that a claiming jail rule would violate the Commerce Clause. [Exhibit 1.] Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 7 of 15 8 lasting for at most thirty days. Further, Kentucky’s rule did, in fact, prohibit claimed horses from being raced at both out-of-state and other in-state tracks, while the record in this case shows that horses claimed in Pennsylvania can race freely at any Pennsylvania track – but not outside the Commonwealth – during the jail period. Finally, the only offered justification for Rule 163.255 – that if owners could freely move their claimed horses among the states “there may not be enough horses in subsequent claiming races” – was not the same permissible intent approved by the Kentucky court. See Jamgotchian, 488 S.W.3d at 614-15 (discussing the concern that horses would be overclaimed to be sold in other states or that owners would attempt to corner the in- state claiming market). B. The purpose of the Rule is purely economic protectionism. As written and applied by the PHRC, Rule 163.255 favors the economic interests of privately owned Pennsylvania racetracks, by allowing them a certain captive pool of potential entrants, while denying such protection to out-of-state tracks.3 Such protectionism is not a legitimate local purpose. New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274 (1988) (“Thus, state statutes that clearly discriminate against interstate commerce are routinely struck down . . . unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.”). Thus, it does not matter whether the PHRC alleges that no non- 3 Plaintiffs have standing to complain about the injurious effects of the Rule. “[C]ognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates . . . .” Gen. Motors Corp. v. Tracy, 519 U.S. 278, 286 (1997). Here, not only does the PHRC have the authority to directly penalize Plaintiffs for refusing to abide by the claiming jail restriction, by imposing civil penalties, revoking their Pennsylvania licenses, or similar actions, but the discrimination itself blocks Plaintiffs’ ability to freely conduct interstate commerce. Accordingly, Plaintiffs, as customers and consumers of the services of out-of-state tracks, also suffer injury from the regulation forbidden under the Commerce Clause, and their injury satisfies the standing requirements of Article III of the United States Constitution. Id. Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 8 of 15 9 discriminatory alternative exists; the regulation fails on the first prong.4 Because Rule 163.255 represents “an economic barrier protecting a major local industry against competition from without the State”, the regulation improperly discriminates against interstate commerce and must be set aside. See Fort Gratiot, 504 U.S. at 362. Indeed, nothing in the PHRC’s recitation regarding the history of claiming races, copied largely from that of the Kentucky Supreme Court, indicates any purpose for the rule other than economic protectionism. That the Rule is part of the regulatory framework governing horseracing adds nothing; the fact that a rule is part of a larger regulatory scheme does not prevent it from being set aside when it discriminates against interstate commerce. See, e.g., Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 432 (6th Cir. 2008) (invalidating portion of statutory scheme regulating sale of alcohol despite history of government regulation in this area). Further, while the PHRC argues somewhat vaguely that claiming jail rules serve to uphold the integrity of claiming races, it has cited no record evidence at all in support of this contention. See Granholm, 544 U.S. at 492-93 (proponent of discriminatory regulation must show legitimate, non-economic purpose through concrete record evidence, not argument or speculation). Indeed, in its only record evidence, the PHRC concedes that, whatever its historical antecedents, Rule 163.255 now serves primarily to prevent owners from choosing to race horses at out-of-state tracks instead of tracks in Pennsylvania so that Pennsylvania tracks are assured of an adequate supply of horses in subsequent claiming races. [Chuckas Dec., ¶¶ 4-5.] The only non-economic justification that the PHRC purports to offer is the general suggestion that the Rule in some way protects horses, by requiring new owners or trainers to 4 That said, Plaintiffs maintain that the PHRC cannot demonstrate a lack of other alternatives. At the least, tracks in Pennsylvania could do more to make their races attractive to owners who have a choice where to run their horses. Thus, the PHRC cannot meet the heavy burden of producing “concrete record evidence” to support its position. See Granholm, 544 U.S. at 492-93 (noting that it takes much more than speculation to uphold a challenged regulation). Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 9 of 15 10 become familiar with the horses at the same track before racing them elsewhere. First, there is no evidence at all that this was one of the motivations which led to passage of the Rule. Moreover, this conclusory assertion not only falls short of the type of concrete, record evidence required from the proponent of a discriminatory regulation, see Granholm, 544 U.S. at 492-93, but it also lacks any logical foundation. There is nothing inherent in the movement from one track to another which heightens any risk to the horse; indeed, the PHRC must recognize as much because the evidence from the Daily Racing Forms indicates that horses claimed at one Pennsylvania racetrack race freely and without restriction at other Pennsylvania tracks without any application of the training jail period. [D.E. 22, Jamgotchian Dec. ¶10.] Moreover, it is common practice in the industry to board horses at offsite training locations, and not at the track at which they have most recently run. [See Second Declaration of Eric Reed (“Reed Dec.”), ¶3, Exhibit 2.] Trainers often relocate horses to the track only a few days prior to a race and remove them to a training facility shortly thereafter, because of the belief that the training centers offer a more stable environment for the horses. [Reed Dec., ¶¶4-6.] As the Rule does not prevent movement of the horses from the tracks at which they are claimed, but rather simply prohibits owners from racing the horses at other tracks, and as movement to a training center actually serves the purported purpose more effectively, see Reed Dec., ¶8, this after-the-fact justification cannot serve as a basis for justifying a discriminatory rule. C. The PHRC has not demonstrated the absence of less discriminatory alternatives. In addition to not advancing a legitimate, i.e., non-economic, local purpose, Rule 163.255 does not represent the only or even the best method of advancing that purpose. Even assuming, arguendo, that a valid purpose is being served, the PHRC has the burden of showing that it cannot achieve that result through other means. See Oregon Waste, 511 U.S. at 100-01. It has Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 10 of 15 11 made no effort to do so. There is no evidence that the PHRC has considered limiting the number of horses an owner can claim, or placing restrictions on the resale of claimed horses, or increasing purses at Pennsylvania tracks or taking other steps to make them more attractive to owners. Here, the PHRC lacks “concrete record evidence” both that the Rule serves any salutary purpose and that a variety of other alternatives would not work equally well. Thus, it is of no moment that, according to the PHRC, the Rule only discriminates against out-of-state racetracks for a limited time. There is no support for the proposition that a regulation can explicitly provide for discriminatory treatment of out-of-state interests if it does so for only a little while. Moreover, the PHRC cannot rely on the waiver provision as support for its contention that the impact of the Rule is minimal; the only evidence regarding application of the waiver, the production from the PHRC of all waivers, shows that it is rarely granted or even invoked, while, on the other hand, the record reflects that the PHRC simply chooses not to enforce the claiming jail rule in a manner which would prevent the transfer of claimed horses to other tracks within the Commonwealth. [See Defendants’ Objections & Responses to Plaintiffs’ First Set of Discovery, Interrogatory No. 3 (reflecting that there have only been three waivers since January 1, 2015), Exhibit 3.] D. The burden imposed by Rule 163.255 outweighs its local benefits. Rule 163.255 expressly favors the interest of a private economic actor (the local track at which a horse is claimed) over the interests of out-of-state tracks competing for the same entrants, and its waiver provision only operates to reinforce that favoritism. Thus, it is subject to strict scrutiny, and it is virtually per se illegal. See Oregon Waste, 511 U.S. at 99. Even were this not sufficient to overturn the Rule, the substantial burden on interstate commerce outweighs any putative local benefit gained from supporting the economic viability of claiming races in Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 11 of 15 12 Pennsylvania. The fact that other states employ similar methods to impede the free flow of commerce does not justify economic protectionism by one or any of them. A burden remains a burden, even if attached to a private transaction, and the PHRC cannot condition participation in its claiming race system on the surrender of a constitutional right. And the PHRC’s own evidence demonstrates the intended extra-territorial impact; the Rule is designed and operates to prevent horses from being transferred to out-of-state tracks which would otherwise be available to owners.5 On the other hand, the PHRC has wholly failed to show that permitting qualified owners to claim thoroughbred race horses in Pennsylvania will enhance the likelihood of horses leaving the Commonwealth; indeed, the PHRC has not and cannot show that horses which are claimed by new owners are any more likely to leave the Commonwealth than are horses which remain under the same ownership. The absence of any evidence at all to support this speculation requires that the Court disregard it. And again, even if the evidence so demonstrated, protecting privately owned Pennsylvania racetracks against competition from more attractive out-of-state racetracks is simply not a legitimate or compelling health and safety interest which can justify the explicitly discriminatory treatment of out-of-state interests in Rule 163.255. II. Section 1983 Applies to the Claims Asserted. 42 U.S.C. §1983 creates a cause of action for injunctive relief against a state official in 5 Tennessee Scrap Recyclers Association v. Bredesen, 556 F.3d 442, 446 (6th Cir. 2009) does not support Defendants’ conclusion that temporary restrictions are permissible even for facially neutral – let alone for obviously discriminatory – regulations. In that case, the ordinance in question was solely local in nature, requiring scrap dealers in Memphis to tag and hold scrap metal for ten days so that it could be inspected by victims of metal theft and law enforcement officials. Not only did the ordinance not facially discriminate between in-state and out-of-state scrap dealers, but its impact did not burden the out-of-state scrap dealers; if anything, it benefitted them. Id. at 450. And while the Bredesen Court did note that a temporary ten day restriction did not have constitutional significance, it did so in its analysis of the due process taking claim at issue in that case, not in its commerce clause analysis. Compare id. at 453 (holding that restrictions for a ten day period merely affect a party’s use of its property and that restrictions over use do not amount to a physical taking) with id. at 448-452 (no such distinction discussed in the Court’s Commerce Clause analysis). Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 12 of 15 13 his or her official capacity. See Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989) (citing Kentucky v. Graham, 473 U.S. 159 (1985) and noting that “[o]f course a state official in his or her official capacity, when sued for injunctive relief, would be a person under §1983 . . .”). As Plaintiffs have brought this action seeking injunctive relief against the enforcement of Rule 163.255, in violation of their Constitutional rights, by the Defendants in their official capacity, Plaintiffs have stated a claim under Section 1983. CONCLUSION On its face, Rule 163.255 provides for differential treatment of in-state and out-of-state economic interests. The regulation benefits privately owned Pennsylvania racetracks, by guaranteeing them exclusive access to a group of horses (owned privately by their owners) which it improperly “jails” in Pennsylvania, while impermissibly burdening racetracks in all other states by denying them access to this same group of privately owned horses. There exists no non-economic justification for this discrimination against out-of-state interests in favor of in- state, private economic interests; thus, the regulation cannot survive the strict scrutiny dictated by the Commerce Clause. Respectfully submitted, /s/ Barry D. Hunter Barry D. Hunter Medrith Lee Norman FROST BROWN TODD LLC 250 West Main Street Suite 2800 Lexington, KY 40507 Tel.: (859) 231-0000 Fax: (859) 231-0011 Email: bhunter@fbtlaw.com mnorman@fbtlaw.com and Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 13 of 15 14 Andrew G. Jenkins Pa. ID # 91322 FROST BROWN TODD LLC One PPG Place, Suite 2800 Pittsburgh, PA 15222 Tel.: (412) 513-4300 Fax: (412) 513-4299 Email: ajenkins@fbtlaw.com Attorneys for Plaintiffs Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that on the 5th day of June, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent to the parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. /s/ Barry D. Hunter Barry D. Hunter 0123749.0592279 4835-7081-4538v1 Case 1:16-cv-02035-JEJ Document 30 Filed 06/05/17 Page 15 of 15 EXHIBIT 1 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 1 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 2 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 3 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 4 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 5 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 6 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 7 of 8 Case 1:16-cv-02035-JEJ Document 30-1 Filed 06/05/17 Page 8 of 8 EXHIBIT 2 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 1 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 2 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 3 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 4 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 5 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 6 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 7 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 8 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 9 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 10 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 11 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 12 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 13 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 14 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 15 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 16 of 17 Case 1:16-cv-02035-JEJ Document 30-2 Filed 06/05/17 Page 17 of 17 EXHIBIT 3 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 1 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 2 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 3 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 4 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 5 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 6 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 7 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 8 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 9 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 10 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 11 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 12 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 13 of 14 Case 1:16-cv-02035-JEJ Document 30-3 Filed 06/05/17 Page 14 of 14