FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 03/17/2026 OSCAR NO. 615052 -PAGE Page 1 of 7 *PUBLIC *

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 03/17/2026 OSCAR NO. 615052 -PAGE Page 1 of 7 *PUBLIC *

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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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Jason Scott, DVM,

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Appellant.

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__________________________________________)

In the Matter of

Docket No. 9449

ORDER (1) DIRECTING FURTHER PAPERS

ON THE APPLICATION FOR STAY, AND

(2) STAYING SANCTIONS AND CASE PROCEEDINGS

The Horseracing Integrity and Welfare Unit (“HIWU”) enforces the AntiDoping and Medication Control (“ADMC”) Program Rules, adopted under the

federal Horseracing Safety and Integrity Act (“HISA”). 1 In February 2025, HIWU

found two Banned Substances during a search of the vehicle Appellant Dr. Jason

Scott drove to Sunland Park racetrack in New Mexico. HIWU charged Dr. Scott

with two violations of Rule 3214(a) prohibiting Possession of Banned Substances.

See 15 U.S.C. §§ 3053, 3054(e)(1)(B), 3055, 3057; Rules 3010(e)(1) & 5720. See generally ADMC

Rule 3000 series & 88 Fed. Reg. 27894 (Mar. 27, 2023) (FTC Notice of Final Rule, effective May 22,

2023) (https://hisaus.org/regulations?modal-shown=true#equine-anti-doping-and-controlledmedication-protocol-rules). Capitalized terms used, but not defined, in this Order are from HISA

Rule 1020 of the General Provisions included in the ADMC Program Rules.

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An arbitration to resolve HIWU’s charges was convened under the

auspices of JAMS, a dispute resolution body, and an arbitration hearing was

subsequently held. The Arbitrator ruled in favor of HIWU and awarded

sanctions against Dr. Scott, which include a period of Ineligibility, a fine, and a

cost assessment. 2 Dr. Scott has filed an application for review of the arbitration

decision and sanctions, as well as an “unopposed” application for a stay of the

sanctions pending further proceedings in this case. Responding to Dr. Scott’s stay

motion, the Horseracing Integrity and Safety Authority (the “Authority”), the

adverse party in this review proceeding, explains the basis for its non-objection to

the stay motion.

While the Authority contends the Dr. Scott “is liable for the Anti-Doping Rule

Violations charged and proven and should be subject to appropriate Consequences

[that is, sanctions], the Authority does not oppose a stay of the Arbitrator’s decision

in light of the rare circumstances in which it was issued.” 3 In summary, “the rare

circumstances” are that: (1) during a break after Dr. Scott’s direct testimony in the

arbitration hearing concluded, “the JAMS-assigned Arbitrator engaged in ex parte

communications initiated by [Dr. Scott’s] counsel”; (2) HIWU did not learn of the

communications until after the Arbitrator had issued his final decision; (3) upon

learning, HIWU “requested that JAMS disqualify the arbitrator and vacate the

decision”; and (4) “JAMS determined that it lacked authority to act on HIWU’s

2 Review Application, Ex. A, at 35.

3 Authority Stay Motion Response at 1-2.

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requests.” 4 The Authority further maintains that “[t]he Arbitrator’s decision suffers

from multiple and substantial defects.” 5

In these circumstances, the Authority conditions its non-opposition to the

stay sought on either: “(i) vacatur of the Arbitrator’s decision and remand for new

arbitration proceedings before a new arbitrator, 16 C.F.R. § 1.146(d)(3)(i); or (ii)

fulsome, de novo review by the ALJ, including ‘determination de novo’ of whether

Appellant is liable for the Anti-Doping Rule Violations charged, id. § 1.146(b).” 6

During the undisclosed ex parte communications, Dr. Scott’s counsel

broached his settlement outreach to HIWU. The Arbitrator expressed to those

present, including Dr. Scott, his opinion on HIWU’s settlement culture:

[T]his is like dealing with a U.S. Attorney. . . . And they asked for the death

penalty in every case. . . . You get nothing. . . . And by the way, I’m not ex

parte-ing with you. 7

The discussion, in the middle of Dr. Scott’s testimony, was regrettable, made even

more so by the failure to report it once the HIWU attorneys returned at the end of

the break. The papers filed in this review include a prima facie showing of grounds

for vacatur and a remand.

First, the ex parte communications may have violated Rule 7150: “Once

appointed, no party and no Person acting on behalf of any party shall communicate

unilaterally concerning the case with any arbitrator . . . appointed to hear the

4

Id. at 2-3.

5

Id. at 2.

6

Id. at 3.

7

Id., Ex. A, at 3, 4.

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case.” JAMS own rules are similarly implicated: Subject to inapplicable exceptions,

“[n]o Party may have any ex parte communication with a neutral Arbitrator” 8

Vacatur seems to follow from Rule violations. 9

Second, assuming, for argument’s sake, that prejudice is needed for vacatur,

there is a colorable showing that satisfies any such element. After the ex parte

communications and the hearing’s conclusion, the Arbitrator issued a decision.

Although holding Dr. Scott liable for two Possession violations, he awarded an 18month period of Ineligibility. That is less than the mandatory 24-month period for a

first ADMC violation, called for by Rule 3223. The ADMC Program Rules authorize

reducing the mandatory Ineligibility period based on the Covered Person

establishing, for example, that in “the totality of the circumstances,” they engaged

in No Significant Fault or Negligence. 10 Any such defense typically invokes the

multi-tiered fault analysis adopted in Cilic v. ITF, 11 which in turn includes

reviewing “objective” and “subjective” considerations to determine any reduction. 12

The Arbitrator, however, offered no basis at all for the reduced Ineligibility period

he landed on.

8 JAMS Comprehensive Arbitration Rules & Procedures, Rule 14(a). See also JAMs Form Stipulation

for Arbitration [Arbitrator Identified—Standard Procedure] (“Parties agree that [the Identified

Arbitrator] shall serve as Arbitrator in this matter and that no party may have ex-parte

communications with the Arbitrator. . . .’’).

See, e.g., Star Ins. Co. v. Nat’l Union Fire Ins. Co., 656 F. App’x 240 (6th Cir. 2016) (ex parte

communications violated the prohibition in the case scheduling order); Grabowski v. Kaiser

Foundation Health Plan, Inc., 64 Cal. App. 5th 67, 278 Cal Rptr. 3d 553 (Ct. App. 4th Dist. 2021)

(failure to disclose ex parte communications violated ethical rules).

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10 Rule 3225.

11 CAS 2013/A/3327, at ¶ 71 (Apr. 11, 2014).

12

See, e.g., Matter of Shell, No. 9439, 2025 WL 1784696, at *41-46 (FTC ALJ Mar. 6, 2025).

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While reducing the Ineligibility period below the mandatory 24-months Rule

3223 requires, the Arbitrator awarded a $25,000 fine–the maximum allowable

discretionary amount. “That the fine should follow—that is, be commensurate

with—the fault is a useful convention—a well-recognized default principle, but

subject to individual case adjustment.” 13 Here, by reducing the “fault,” as proxied by

the Ineligibility period, but not the fine, the Arbitrator departed from this

convention. Again, there is no explanation. Although this anomalous departure does

not prejudice the Authority directly, it nevertheless is consistent with the decision’s

irregularity.

The Arbitrator’s decision has yet another irregularity. Rule 3120 requires

HIWU to prove its charged Rule 3214(a) violation “to the comfortable satisfaction”

of the Arbitrator. The decision, however, is silent on whether HIWU satisfied its

burden or, indeed, any other standard of proof.

Finally, in appropriate circumstances, two Possession violations can give rise

to individual periods of Ineligibility, which could run consecutively, and to

aggregated fines. 14 However, the Arbitrator did not explain why, after holding that

Dr. Scott committed two Possession violations, he awarded a single period of

Ineligibility and a single fine.

See Administrative Law Judge Decision on Application for Review, Matter of Overly, No. 9443, at

92-93 (FTC Jan. 27, 2026) (cleaned up), app. for review, FTC (Feb. 26, 2026); Matter of Poole, JAMS

Case No. 1501000576, at ¶¶ 7.24-.25 (Aug. 8, 2023), aff’d, 2023 WL 8435860, at *5 (FTC ALJ Nov.

13, 2023).

13

14

Overly, No. 9443, at 85-92.

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My review authority under HISA and the implementing Rules is de novo—

“as if [the matter under review] had not been heard before, and as if no decision

previously had been entered.” 15 I must determine the merits of the Rule violations

charged, and whether the sanctions were “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 16 In exercising this review

authority, I may, among other things “set aside, or remand for further proceedings,

in whole or in part” and “make any finding or conclusion that, in [my] judgment . . .

is proper and based on the record.” 17

Accordingly, it is hereby ORDERED that:

1. On or before 5 p.m. ET on March 31, 2026, Dr. Scott must SERVE and

FILE a notice stating whether or not he objects to an Order: (a) vacating the

Arbitrator’s decision that is the subject of this application for review and the

sanctions against Dr. Scott imposed as a result of the decision; and (b) remanding

this case to JAMs for new arbitration proceedings before a new arbitrator. If

Dr. Scott objects to that relief, he must state in the notice the grounds for his

objection and may, if he wishes, propose any other course of action.

15 Shane v. Albertson’s Inc., 504 F.3d 1166, 1168 (9th Cir. 2007) (review under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim) (quoting Freeman v. DirecTV, Inc., 457 F.3d 1001,

1004 (9th Cir. 2006). See also Harris v. Lincoln Nat’l Life Ins. Co., 42 F.4th 1292, 1295 (11th Cir.

2022) (“De novo means . . . a fresh, independent determination of the matter”) (cleaned up).

16 15 U.S.C. § 3058(b)(2)(A); FTC Rule 1.146(b)(1)-(3).

17 15 U.S.C. § 3058(b)(3)(A)(ii-iii); FTC Rule 1.146(d)(3).

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2. If Dr. Scott objects to relief described above, then the Authority must

SERVE and FILE a response to Dr. Scott’s notice by no later than 5 p.m. ET on the

date two weeks after the date of its service.

3. Dr. Scott’s notice, and the Authority’s response, if any, are limited to 1,500

words. See FTC Rule 3.22(c) regarding exclusions from the word count.

4. Pending further Order of the Court, the sanctions imposed, and all further

proceedings in this review, are STAYED as of the date of this Order.

ORDERED:

Jay L. Himes

Jay L. Himes

Administrative Law Judge

Date: March 17, 2026

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