About Me

My photo
Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Tuesday, December 13, 2011

Horse Sale Sabotage: When Does Legal Action Make Sense?


I have a very nice Western Pleasure show horse for sale. While he's a cute Western Pleasure mover and quite competitive at Paint shows, what really sets him apart is his temperament - he's super-quiet, kind and forgiving, suitable for a novice or walk-trotter. This is the kind of gelding that you can let sit for a while, then hop on him without longeing first. And, he's young, sound, healthy and cute as a bug's ear. Horses like this gelding are hardly ever for sale. Even in a down economy, it shouldn't be too hard to sell him, right? Well...

I'm offering my gelding at a fair price. After one buyer wanted me to throw in my $3,000 show saddle, I edited the ad to indicate the price was firm, so buyers would be aware I wasn't among the many folks desperate to sell.

A week later, I had two serious inquiries. One prospective buyer came to try the gelding and really seemed to like him. She needed a confidence-builder show horse and my gelding would excel in that job. The other prospective buyer purchased plane tickets to come and try him, was serious enough that she planned to stay two days to try him thoroughly. Suddenly, the buyer with plane tickets sent me a cryptic email canceling. Then, a day later, the other buyer emailed me to say she was going to look elsewhere.

What the heck was going on here?! Two serious buyers canceling in less than 48 hours?! I immediately got a little suspicious.

There is NOTHING wrong with this gelding, and he's everything I've advertised him to be. He's been a good boy for the buyers who've come to try him, too. But, as an equine attorney, I'm pretty familiar with the dark side of our industry. I know there are quite a few horse sellers not above spreading lies to increase the chances of selling their own horses. Hmmm.

So, I started where every Internet-savvy armchair detective would - I Googled the horse's name. Nada, except the ads I had placed for him. Then, I went low-tech - I simply emailed the prospective buyers and asked them why they had decided to pass on the horse, and explained I was concerned someone might be spreading misinformation about him.

Fortunately, both buyers responded right away, and assured me that no one had told them anything bad about my gelding. The buyer who tried him just didn't feel my gelding was "the one," and the other buyer had apparently been planning to make me an offer, then saw my price was firm and changed her mind about coming. So, it turns out my fears were unwarranted. No one was sabotaging my horse sale. But, I sure was glad I checked it out - knowledge is power.

What if someone *had* been sabotaging my gelding's sale, and I knew who it was? If I hadn't already sold the horse, it would make sense for me to send the saboteur a "cease and desist" letter threatening them with legal action if they continued to try to sabotage my horse sale.

If the cease and desist letter didn't stop the sabotage, I'd have several possible bases for a lawsuit, including unfair competition claims and tortious interference with business conduct. However, to make a viable case, I'd have to PROVE I would have sold my gelding but for the sabotage, and prove I had damages sufficient to justify taking legal action.

How would I prove sabotage killed the horse sale? The easiest way would be to get testimony from one of the prospective buyers that they were prepared to purchase my gelding until someone told them something negative about him. They would have to identify the "someone" who relayed the misinformation. AND, the something negative would have to be untrue, such as that he had bucked me off and put me in the hospital. The something negative would also have to be an affirmative statement about something based on fact, not opinion. For example, if someone told the prospective buyer they thought my gelding "wasn't a good mover" - that wouldn't be proof of sabotage, because whether or not a horse is a "good mover" is highly subjective.

So, what if I could prove sabotage, prove where it came from, and prove it interfered with my sale? From there, whether or not it would make sense for me to file a lawsuit would depend upon economics. Naturally, it's helpful that I'm an attorney and could represent myself in the lawsuit (notwithstanding the old saw about attorneys who represent themselves having a fool for a client). However, the time I spent on my own case would mean I'd have less time available for paying clients' cases. And, there would be court costs and other out of pocket expenses.

So, I'd have to determine whether my damages from the sabotage exceeded the costs and opportunity costs of pursuing a lawsuit. If I sold the gelding for full price a week after hearing about the sabotage, I'd have virtually no damages and the case would be a clear non-starter. But, if I had the gelding for another six months, and then had to sell him at a rock-bottom price, my damages might be significant enough to consider taking legal action.

The analysis wouldn't end there, though. I'd have to make sure the saboteur was solvent enough to pay any legal judgment I might get against them. Typically, I determine whether prospective defendants are solvent by hiring a private detective to do an asset search and background check. You'd be surprised how many "big names" are actually broke, with their fancy rigs owned by the bank, and the IRS first in line to seize any assets they might later acquire...

Any horse sellers out there who have questions about horse sale sabotage are welcome to contact us. We can offer a phone consultation to folks in California, New York, Washington and Oregon (the states where I'm licensed to practice). Folks in any state can also write in anonymously to one of the several question-and-answer columns I write - for Pleasurehorse.com, RateMyHorsePro.com and Bay Area Equestrian Network.

3 comments:

Corinna said...

It's so interesting that you hire a private detective to run an asset/ solvency check!

Great run down on damages and causes of action, the tortious interference is what first came to my mind... merely for conversation's sake, I wonder also if you could have slander/libel claims, even if it is against your horse (i.e., "the horse has had emergency colic surgery twice," when in fact it never had), because arguably the falsehoods would represent you as a liar...

Corinna

Rachel McCart, Equine Legal Solutions said...

Hi, Corinna. Thank you! Re: slander/defamation/libel, you'd probably have a claim on at least one of those bases, too. Just like with the tortious interference, you'd have to prove you were damaged. For folks wondering about what it takes to have a viable case for defamation, slander or libel (and what the difference is among those claims), here's another article I wrote - http://www.equinelegalsolutions.com/libelslander.html

Unfair competition claims are especially attractive in such situations because unfair competition statutes often provide for recovery of attorneys' fees and costs, as well as (sometimes) punitive damages.
Of course, you can't double-dip on the same damages, but as in all lawsuits, you want to bring as many claims as you have the facts to support.

Lisa Lisa said...

That is a lot of "What Ifs" for something that did not actally happen. I would wait until someone actually did sabotage my horse sale before researching what to do about it. Especially as it is a very unlikely scenario, don't you think?