iMEGA on standing & ripeness

[BluffTHIS!]

On their website (http://www.imega.org/) , iMEGA has said that they have responded to a DoJ motion to dismiss their suit based on standing and ripeness, the same issues many attorneys in this forum have raised. Here is a quote:

In the response brief, iMEGA's attorneys provided ample precedent for both our standing as a trade association acting on the behalf of our members, and for the potential jeopardy of prosecution the new law puts some of our members in. They contend that it is not necessary to wait for one of our members to be prosecuted before the law may be scrutinized by the courts.

The brief also highlights the heretofore unexamined jeopardy that affiliate marketers who live and operate in the US may be in due to UIGEA.


Also, here is their link (http://www.imega.org/wp-content/uploads/2007/09/imega_reply-brief_910071.pdf) to a PDF of their brief.

So what comments do you legal dudes have to this? Also if the court rules in iMEGA's favor on this challenge motion, will they still hold the DoJ to the next deadline for filing a substantive response or will the DoJ likely get another continuance in that case?

[Legislurker]

Ill leave the legal analysis to our lawyers, but a related word about the so-called reporting at g911. They put two articles up todayish. One is about the response to the ripeness, but both are spinning way positive. Costigan is an unmitigated ass, but he sometimes has a source or two. He seems to be major hinting that word is out of some sort of small victory. I guess I should just stop even going there, but its habit for almost a year now.

[Coy_Roy]

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He seems to be major hinting that word is out of some sort of small victory.

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They do this often enough that I wonder if it's about stock manipulation.......

[Legislurker]

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He seems to be major hinting that word is out of some sort of small victory.

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They do this often enough that I wonder if it's about stock manipulation.......

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Whatever the hell it is, I spread around banner click thrus and signups. Costigan will never get a 1 from me. I appreciate the idea and regular updating, but some sort of editing and credulity need to accompany it.

[BluffTHIS!]

Guys,

Plz don't derail this topic onto discussing G911. Thnx.

P.S. It's not even necessary to respond and say "OK". Thnx again.

[MiltonFriedman]

Bluff,

The Reply brief is about 70 pages, but the problem is that it looks like it is coated in vaseline, VERY tough to read. If anyone has a link to a more readable copy, that would be terrific.(I'll weight through this one, but it will be a real pain.)

[BluffTHIS!]

Milton,

I get the same blurry version as you. Yet the headnotes are fine. It seems as if they intentionally did this to prevent copy & pasting of the text for some reason. However you can read it if you try.

[MiltonFriedman]

Try this link: http://www.gambling911.com/iMEGA--Reply_Brief--Final--9-10-07.pdf

The copy was much better.

Briefly, my gut feeling is that the Plaintiff will lose on standing because it does not appear to have identified association members' who are real and therefore have a real case or controversy for a Court to decide .... i.e. Saying you are an association and have standing because your "members" have standing begs the question if nothing is done to show the members' real case or controversy. The much better practice would have been to JOIN some individual plaintiffs, all it takes is ONE and then the Association can tag along for the case.

There is a reason why the ACLU joins individuals as plaintiffs. It works on "standing'.

Individual Plaintiffs can establish an injury in fact and a 'legally protected interest". An Association of unidentified memebers has a tough row to hoe on these points. The words "personal" and 'individual" permeate the iMEGA argument, but they miss the point I am afraid.

I'll finish reading this later, on ripeness et cetera, and will re-read the Standing section to see if I missed something.

[MiltonFriedman]

In its eagerness to argue injury, iMEGA throws affiliates under the UIGEA bus. At pages 8 -9, iMEGA, in an incredibly stupid vein, argues that affiliate marketers are violating UIGEA because they somehow are conducting betting and wagering ..... Jesus, Mary and Joseph, protect us from our "friends".

Right, what we REALLY need is somoeone to jump up and offer an expansion of what Congress wrote in the UIGEA, to pull in POKER affiliates. The quoted Section 5362 language has NOTHING to do with affiliates, it deals with people who tell a site what amount is to be bet or wagered. Section 5363 itself is limited to businesses who bet or wager. AGAIN, clearly NOT an affiliate.

Nice job, iMEGA.... I now hope you lose quickly and quietly on Standing, before you do a greater disservice to poker players and related businesses in your thrashing about and trmapling on our rights.

[BluffTHIS!]

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There is a reason why the ACLU joins individuals as plaintiffs. It works on "standing'.

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Milton,

I'm no lawyer, but it would seem to me that there is a difference between the ACLU and iMEGA. Which is that the ACLU rarely(?) is litigating for its actual members, whereas iMEGA is a trade association who only advocates on behalf of its membership. Is this distinction I draw valid?

As to their tactic of broadening the scope of coverage of the UIGEA, one obviously does not have to look far to see who is behind that position, i.e. Party Poker. However when talking about Party's affiliates in particular, they would seem to have a point (and indeed in re Party itself, they used the example of the fall of their stock price).

[oldbookguy]

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in an incredibly stupid vein, argues that affiliate marketers are violating UIGEA because they somehow are conducting betting and wagering .....

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Actually I can see this as correct.

First, affiliates are not limited to directing you / me / us to a 'poker' site but also to Funds transfer sites Neteller comes to mind.

The UIGEA under defining a Transaction Service provider in 5362 (4) reads "A participant in such a network, or other participant in a designated payment system".

So, an affiliate that sends you to Neteller (comes to mind), receives a commission, is covered, as well by the UIGEA, making them a covered participant.

Also, in reading the reply, though IMEGA has never stated the exact names of members, we have some insight that gives us a clue to standing; member(s) are affiliates.

Unlike say the ACLU who has no direct connection to a case and NEEDS a specific individual to gain standing; IMEGA seems to have those members they are suing on behalf of.

It would be nice to know individual id's, the court may know though.

Thoughts?

obg

[MiltonFriedman]

1. The distinction is one without a difference.

2. "As to their tactic of broadening the scope of coverage of the UIGEA, one obviously does not have to look far to see who is behind that position, i.e. Party Poker."

Sorry, Bluff, you blew that call.
First, the iMEGA argument is simply a bad, shortsighted piece of writing, by someone who did not think out the implications of what she or he was saying. I am certain the argument derived along the following lines .... Hey, everyone says we should have added affiliates as plaintiffs, okay then, argue why they have "standing".
Secondly, without getting into details, I am certain that there are no big-name poker plaintiffs behind this group. Look South, rather than across the Atlantic for whose interests are being represented. (I am told that numerous other groups have come forward since iMEGA filed to express support, but I will believe that when I see hard evidence.)

HOWEVER, there is a silver lining in their filing, the iMEGA treatment of what the Regs should say under Section 5364 of the Act is pretty good, and leans heavily toward "filters" as the best means to screen transactions. This would be a nice regulatory approach for poker if developed, as it kicks legality back to the State level..... no transactions from the 'bad" states, okay from the "good" states.

IMEGA will still lose on ripeness for certain as to the request to enjoin the Regs, but the layout is nice for POKER coments when the Regs are finally proposed ....

i.e Poker is not covered by the Act (i.e not betting or wagering or is skill or whatever), and should be protected under Section 5364(4).

[BluffTHIS!]

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1. The distinction is one without a difference.

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Again I'm no lawyer. But are you saying that there is no such thing as "associational standing" when individual members of the association do not join?

Regarding the actual membership of iMEGA I will defer to your knowledge. However that is the argument Party makes to screw its competitors still in the US market. Glad to see your seeing a silver lining for poker though in their filing.

[MiltonFriedman]

There are a lot of cases about associational standing. It is not dependent upon members joining a suit as plaintiffs.

However, that makes no difference here. iMEGA has only "secret" members. Unless or until it discloses them and offers something more than a conclusory "certification" by its President (which I did not read admittedly), iMEGA will NOT convince a Judge that injury in fact is shown or that there is a legally protected interest present in this case. These are big hurdles for this case, apart from whatever other caselaw you may see cited.

To use a poker analogy, whether at the standing stage or at the time it claims irreparable injury (on its request for injunctive relief), iMEGA WILL have to turn its membership cards face up or the pot will go to DOJ. DOJ is not folding, so there will be a showdown on that information.

THAT being the case, iMEGA should have obtained some willing and clean individual plaintiffs from the beginning. It may never get to the merits of its equitable requests and may lose NOW, on the Motion to Dismiss, as a result of not doing so. (I am sympathetic, but skeptical of its chances at this stage, I still would say less than 5%.)

I have no knowledge of iMEGA actual membership. I know that the litigation has been discussed here in Costa Rica. I also know that the PPA declined involvement in the lawsuit.

[Legislurker]

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There are a lot of cases about associational standing. It is not dependent upon members joining a suit as plaintiffs.

However, that makes no difference here. iMEGA has only "secret" members. Unless or until it discloses them and offers something more than a conclusory "certification" by its President (which I did not read admittedly), iMEGA will NOT convince a Judge that injury in fact is shown or that there is a legally protected interest present in this case. These are big hurdles for this case, apart from whatever other caselaw you may see cited.

To use a poker analogy, whether at the standing stage or at the time it claims irreparable injury (on its request for injunctive relief), iMEGA WILL have to turn its membership cards face up or the pot will go to DOJ. DOJ is not folding, so there will be a showdown on that information.

THAT being the case, iMEGA should have obtained some willing and clean individual plaintiffs from the beginning. It may never get to the merits of its equitable requests and may lose NOW, on the Motion to Dismiss, as a result of not doing so. (I am sympathetic, but skeptical of its chances at this stage, I still would say less than 5%.)

I have no knowledge of iMEGA actual membership. I know that the litigation has been discussed here in Costa Rica. I also know that the PPA declined involvement in the lawsuit.

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So Pappas already lied?

I have not heard from anyone involved with the IMEGA lawsuit. I would welcome their thoughts on why/how the PPA should/could become involved. Feel free to contact me at email@pokerplayersalliance.org.

[MiltonFriedman]

I previously had not seen that statement by Mr. Pappas. However, on its face, there is no reason to think he has lied at all. You seem to be WAY quick on the trigger.

What I am referring to was definitely "pre-Pappas".

[BluffTHIS!]

Milton,

Thanks for your further explanation that the important distinction here is whether the membership is secret or known. That along with your Costa Rica reference implies what is behind the curtain. Which is either a group of sports-betting concerns who cannot come into the limelight, or some poker site affiliates who don't wish to either. The shame is that this is the perfect type of suit to be litigated by the sites themselves (and the PPA).

[TheEngineer]

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I previously had not seen that statement by Mr. Pappas. However, on its face, there is no reason to think he has lied at all. You seem to be WAY quick on the trigger.

What I am referring to was definitely "pre-Pappas".

[/ QUOTE ]

Agree...the trigger pulling has been a bit quick. I understand the issues and concerns with the "old" PPA, and I fully understand the need to keep the "new" PPA accountable. However, these guys have really come a long way since John took over. John returns calls and emails the same day. I regularly get emails from him on Saturdays, Sundays, and on weekdays both during the day and late in the evening, even after 10 pm. He brings a whole lot more energy than we had in the past. As for results, the Kentucky letters went out today, the Washington trip is being set up, congressmen are being lobbied, and the organization is being moved to Washington. And, yours truly will soon be on the board to represent our interests (as you all know, my only interest in the position and title is to further our cause).

I say this immediately after getting one-outed on the river, losing my nut boat to a straight flush, then immediately losing QQ vs JJ on a river jack, so I must mean it (most of the keys on my keyboard still work). /images/graemlins/grin.gif

Things may not yet be perfect, but I want everyone to know John's on our side and is working hard for us.


Edit: I certainly don't wish to hijack or even slightly derail this thread. I was addressing one comment. Anyone with a reply should probably direct it to the PPA thread. Thx.

[MiltonFriedman]

"the important distinction here is whether the membership is secret or known. "

Not quite .... I happen to think it is inevitably going to arise, given what representations need to be made at various stages of an action like this. What I or anyone else thinks is less important than what the Court thinks. he Court could find for iMEGA on standing, but I doubt it. I doubt further that they win on Ripeness as to the request to enjoin Regulations not yet written.

(Losing on ripeness on the Regs does not mean they lose on everything, by the way. The Act may still be open to challenge anyway. The Regs will not additionally criminalize conduct or affect anyone other than financial institutions really. The Constitutional challenge to IUGEA, dormant commerce clause or otherwise, is not dependent upon the Regs. Rather, it is based upon the Act itself.

Who "the man behind the curtain may be" becomes irrelevant largely, if the guy in front has standing. Would poker players or poker affiliates or poker sites who fled the country or shareholders in such fleeing sites have standing ? Arguments could be made that they would ... but they really do need to step up, in my opinion of how to defend a motion to dismiss.

Please keep in mind that iMEGA apparently filed a certification of some sort, which was not linked in. For all we know, EVERY sort of possible plaintiff or member interest fully disclosed and identified in that filing ... but left out of the iMEGA Reply Brief It may also be that the Court plans to hold a hearing with testimony, but that would be odd on a Motion to Dismiss.

[Legislurker]

What are the chances iMega can reveal its membership to the judge, and withold it from the DoJ? Is there a provision that
allows for concealing from the government if they fear persecution or special attention that wouldnt come unless they had sued for the injunction?

[Wynton]

I haven't read any of the pleadings, but I find it extraordinary that iMega could not establish standing. Do they really make no effort at all to substantiate the claim that their members have suffered injury?

[Skallagrim]

My lawyer's opinion: having identified that their association includes "affiliates" they have standing at least as far as affiliates can be hurt by the UIGEA. Unless they reveal more "members" of their association, this will limit the reach of their argument. Other folks who may be hurt will not be considered except to the extant of the 1st amendment claim (probably the weakest of the claims) as that has always been seen as broad enough to allow for associations to have standing.

But on the regulations, that issue will be found "not ripe" because there are no regulations yet.

It will be an interesting decision when it comes down.


Skallagrim

[sup_bro]

i have actually discussed with some people over at IMEGA at being a named plaintiff with damages if need be...however, what i would like to know if what some of the negatives to this would be?? on the surface, doesnt seem to be too many drawbacks, but i dont want to go into this blind and would like to know what if any negative repercussions could happen?? i too, feel as though, they actually need a named plaintiff to proceed successfully.....

[MiltonFriedman]

Are your US taxes paid ? Do you live in a Good State or a Bad State ?

Are you an online poker player ? Affiliate ? or what ?

[sup_bro]

my taxes are pretty much paid, i live in NJ, i am an online player

[HelloandGoodby90]

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But on the regulations, that issue will be found "not ripe" because there are no regulations yet.


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Basically, the government will insist that the regs it failed to publish, are unripe for challenge, because they were not published. Hardly seems fair. And makes me wonder whether or not the DOJ failed to publish them, only so the iMEGA suit could be declared unripe.

I suppose that the fact the court is willing to hear tomorrow's oral arguments, is a good sign. They did not throw the case out at the DOJ's first motion.

Is there a good chance of getting a ruling tommorrow? Whatever happens, I am sure both sides will appeal to hell and back.

[Skallagrim]

The ruling wont be out for a while: the judge has taken the matter "under advisement," meaning she will issue a decision when she is ready.

Its still pretty basic that you cant challenge regulations not written yet, but there are a lot of other aspects of the UIGEA that are ripe. So some of this suit is likely to go forward IMHO.

Skallagrim

[JPFisher55]

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The ruling wont be out for a while: the judge has taken the matter "under advisement," meaning she will issue a decision when she is ready.

Its still pretty basic that you cant challenge regulations not written yet, but there are a lot of other aspects of the UIGEA that are ripe. So some of this suit is likely to go forward IMHO.

Skallagrim

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Skall, does this mean that you think that the judge will decide that iMEGA has standing to bring the litigation?
I am not worried about the regs and the ripeness issue. The heart of the case is the constitutionality of the UIGEA itself, regs or no regs. I agree that challenging regs is easier than challenging the whole statute. IMO that is why no regs have even been proposed yet. Well that and normal government slow operation.

[Legislurker]

Can the judge force the gov't to produce the actual regs since they are past due? If the gov't is stalling it out on purpose in her opinion, can she take action against their recalcitrance? That would seem to be the crux of not getting a ruling to me, and their is some injury in not knowing them.

[Skallagrim]

JP - I think IMEGA demonstrated at least some standing, certainly with respect to their First amendment claims. I think they have a shot, having identified affiliates as part of the group, at standing to challenge the UIGEA on WTO and Commerce Clause grounds, but that analysis is far more complex.

Legislurker - No, the judge cant order the Regs to happen (thank god) - but that part of the suit could be re-filed once they do appear (if ever).

Skallagrim

[JPFisher55]

Thanks for the answer Skall. I guess the worst that can happen on the standing issue is that the judge can order iMEGA to identify a member who is an affiliate to establish standing.
I don't think that the regs part of the suit means much.

[Legislurker]

[ QUOTE ]
JP - I think IMEGA demonstrated at least some standing, certainly with respect to their First amendment claims. I think they have a shot, having identified affiliates as part of the group, at standing to challenge the UIGEA on WTO and Commerce Clause grounds, but that analysis is far more complex.

Legislurker - No, the judge cant order the Regs to happen (thank god) - but that part of the suit could be re-filed once they do appear (if ever).

Skallagrim

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So if the gov't so chooses, they can never publish the regs?
They can deny standing by just being asswipes? At some point who holds them accountable for promulgating the law by publishing the regs? It would seem to me the judge should be able to say they can't just hold legal limbo and actually issue the TRO until the regs are out, and THEN examine standing to force the gov't to be forthright.

[JPFisher55]

Legislurker, I think that you confuse standing and ripeness. The ripeness issue applies only to the request to injoin the issuance of regulations; not to the request to injoin enforcement of UIGEA. But the standing issue affect the whole lawsuit. The iMEGA must show standing or the lawsuit fails. But, in theory, the judge could grant an TRO against enforcement of the UIGEA, but not the issuance of the regs. That is highly unlikely, but possible.

[Wynton]

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So if the gov't so chooses, they can never publish the regs?

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No. A government agency has to follow a congressional mandate to publish regulations. It is possible to bring an action to force the agency to do so, eventually. But that may require a separate proceeding altogether, and as a practical matter, the regulations would probably be issued before a decision was ever issued.

In any event, I'm sure we will see regulations soon enough.