NOW IS the time to seek declaratory relief for "poker", huh, PPA ?

[MiltonFriedman]

I have been reading the Proposed Regulations. In my opinion, by their refusal to determine which forms of "gambling" are covered, the Agencies understandably punted.

The proposed Regs ARE out, they will not single out whetehr or not "poker" is covered by the UIGE Act.

Engineer,

PPA should seek a declaratory judgement, as a representative of "poker" players, and others such as CardPlayer and epassporte should join as plaintiffs, that the UIGEA does not cover poker, and, even if so, "poker" is not illegal under Federal laws. Such a suit was practically invited by these proposed Regulations.

Read the Sections why there is reluctance to publish a 'blacklist" and how questions of legality of internet gambling should be resolved by reference to underlying substative law.

Senator D'Amato is quoted publicly in the press as saying online poker is NOT prohibited by federal law. Unlike iMEGA, the PPA can show standing, the PPA can show ripeness, and the PPA can show a need for declaratory relief, as the FBI has threatened to prosecute people who play card games online. I think Al D'Amato would make a great individual plaintiff, not to mention getting great press.

If "poker" is NOT federally prohibited, why should PPA memebers be left to the whims of banks' business risk assesment. A Federal suit declaring that poker is NOT covered by the UIGE or is not federally prohibited would give Banks cover to process online poker deposits. The time to seek relief is NOW.

Well, okay then PPA, file a suit to clarify that "poker" is

(a) not covered by the business model addressed by the UIGEA, poker sites are not engaged in "betting or wagering" but are simply a third party interactive service provider to individuals who DO bet or wager, and, even IF covered by the UIGE,

(b) online poker is not prohibited by any Federal Statute, despite the FBI's website threatening prosecution of individual players.

IF the PPA loses, and poker is federally prohibited, then there is always the Wexler Bill to back.

Milton Friedman

[Skallagrim]

I am with you on this Milton, and I hereby publicly volunteer to be the named plaintiff and/or lead counsel if my ability to play poker is in anyway hampered by these regulations: I live in NH. NH gambling law does not mention the internet at all. NH law defines gambling as wagering on an outcome that the wagerer does not control or influence. My actions in poker control (when I fold) and influence (when I bet or raise thereby inducing others to fold) the outcome. Poker is not illegal in NH. Poker is not illegal under the wire act. If these regulations stop me from engaging in a lawful activity I enjoy, I believe I am entitled to undertake the lawsuit.

Only problem is I can't bankroll the lawsuit, or I'd do it without the PPA.

Skallagrim

[MiltonFriedman]

I am serious about lobbying PPA to act in their representative capacity.

On the other hand, there are limits to the benefits of litigation.

"if my ability to play poker is in anyway hampered by these regulations"

I asked my Doctor's office about my upcoming knee surgery:
"Doctor, will I be able to play poker after the operation ?"

Doctor: "Sure. You'll be able to play poker just fine."

Me: "Really ? That's terrific. I can't play worth a damn now."

[Wynton]

Until there are final regulations out, an action for declaratory relief would be deemed premature.

On the other hand, it's not too early to prepare the action for filing, using the proposed regulations as a starting point. And since this will likely take a few months anyway, might as well start the process now.

[Skallagrim]

OK, OK - what an old joke, LOL.

You know I was talking about standing to bring the lawsuit, any PPA member who lives in a state that does not have a specific internet poker law could be the plaintiff.

Better still is a plaintiff in a state with the skill v. luck definition of gambling.

Best is a plaintiff in a state where poker is pretty clearly NOT gambling.

[JPFisher55]

Wait a minute, last week I was chastigated for stating that we would be better off if the regs clearly outlawed online poker because then we would clearly have standing to sue for declaratory relief. Maybe I was somewhat optimistic about the outcome. But Milton and Skall wanted to use litigation as a last resort.
Now the regs come out and are vague as we feared. Now you want the PPA to sue before we even attempt to favorably change the regs by submission of comments. You must think that the case is good. I do agree. However, you should know that some federal magistrate in the BetonSports case wrote a finding for the court that stated that the magistrate felt that In Re MasterCard was wrong and the Wire Act covers all online gambling. http://www.gamblinglawupdate.com/archive...5%2008%2007.pdf (http://www.gamblinglawupdate.com/archives/Bet%20on%20Sports%20Ruling%20Signals%20Disaster-Final05%2008%2007.pdf)
Of course, this is not a ruling but only a recommendation. So I still think the case is strong. But I thought the idea was to exhaust our alternatives in the comment process before litigation.

[TheEngineer]

[ QUOTE ]
Wait a minute, last week I was chastigated for stating that we would be better off if the regs clearly outlawed online poker because then we would clearly have standing to sue for declaratory relief. Maybe I was somewhat optimistic about the outcome. But Milton and Skall wanted to use litigation as a last resort.

[/ QUOTE ]

Correct. We didn't want the regs to clearly restrict funding for poker...we would have been screwed for years. This is much better for us, as the authors pretty much admitted that gaming laws are vague. That makes it more likely to get a result in our favor.

We still want to use litigation as a last resort. Still, it is a "resort", so we need to be prepared to use it.

I'll discuss this with John Pappas tomorrow.

[JPFisher55]

TE, there are very few agencies whose regulations have the force of law. IRS regulations do not have the force of law and often do not survive a court challenge. I know that some agencies have the power to issue regulations that do make law. The SEC is one example.
But these regulations are not new law. So vague regulations do not make the case for online poker better, or worse, in court than a regulation expressly defining online poker to be unlawful internet gambling. Such an express regulation would not screw us for years and we could still comment against it. Just like we can comment to make these regulations less vague for our side; like my proposed definition of unlawful internet gambling.
However, if Skall and Milton believe that the PPA has standing to bring a declaratory action that online poker is not covered by the Wire Act or UIGEA, in most states, and they believe that this is the proper time for such litigation, then I am all for it.

[Grasshopp3r]

iMEGA is already in court, so they will be able to get a result sooner than the PPA.

What needs to happen is that Neteller should accept US deposits again and reopen their US accounts, stating that they are in compliance with the proposed regs. Also, a successor to Neteller may decide that the legal risk is relatively low and open.

[Tuff_Fish]

[ QUOTE ]
iMEGA is already in court, so they will be able to get a result sooner than the PPA.

What needs to happen is that Neteller should accept US deposits again and reopen their US accounts, stating that they are in compliance with the proposed regs. Also, a successor to Neteller may decide that the legal risk is relatively low and open.

[/ QUOTE ]

A poker only Neteller would be a better bet. Sterring clear of the casinos and sports betting will give our new Neteller a much better chance of succeeding. IMHO

Tuff

[MiltonFriedman]

"iMEGA is already in court, so they will be able to get a result sooner than the PPA."

1. iMEGA is swinging, poorly, at every pitch of Constitutional law. They HAVE to do so. They NEED to hit a home run.

2. iMEGA is not carrying water for poker. They have NO poker plaintiffs

3. iMEGA is burdened with carrying water for sportsbooks, who are engaged in a business which any court anywhere in the US would find violates the Wire Act. (Actually, the Kaplan defense motions about the WTO trumping the Wire Act for past actions may do more good for sportsbooks than anything that iMEGA has done or will do.)

4. The PPA has real members it can point to, who are engaged in lawful online poker activities.

5. Poker does not need a "home run" of Constitutional proportions. I am not talking about some long-shot Constitutional challenge. Rather, the PPA should go fo a fairly straight forward action for declaratory relief regarding coverage or not under a couple of Federal Statutes, the UIGEA and the Wire Act.

6. Contrary to what G911 wrote about me, I have no axe to grind against iMEGA or the PPA. I think the PPA would make a wonderful lead plaintiff in litigating to protect the rights of poker players. It can even help everyone from epassporte to CardPlayer to Bluff by spearheading a "poker" legal action.

[TheEngineer]

[ QUOTE ]
TE, there are very few agencies whose regulations have the force of law. IRS regulations do not have the force of law and often do not survive a court challenge. I know that some agencies have the power to issue regulations that do make law. The SEC is one example.
But these regulations are not new law. So vague regulations do not make the case for online poker better, or worse, in court than a regulation expressly defining online poker to be unlawful internet gambling. Such an express regulation would not screw us for years and we could still comment against it. Just like we can comment to make these regulations less vague for our side; like my proposed definition of unlawful internet gambling.
However, if Skall and Milton believe that the PPA has standing to bring a declaratory action that online poker is not covered by the Wire Act or UIGEA, in most states, and they believe that this is the proper time for such litigation, then I am all for it.

[/ QUOTE ]

It's a fairly moot point at this point, as the regs made it clear that the Treasury Dept. has no intention of defining poker as unlawful Internet gambling.

[Legislurker]

[ QUOTE ]
[ QUOTE ]
TE, there are very few agencies whose regulations have the force of law. IRS regulations do not have the force of law and often do not survive a court challenge. I know that some agencies have the power to issue regulations that do make law. The SEC is one example.
But these regulations are not new law. So vague regulations do not make the case for online poker better, or worse, in court than a regulation expressly defining online poker to be unlawful internet gambling. Such an express regulation would not screw us for years and we could still comment against it. Just like we can comment to make these regulations less vague for our side; like my proposed definition of unlawful internet gambling.
However, if Skall and Milton believe that the PPA has standing to bring a declaratory action that online poker is not covered by the Wire Act or UIGEA, in most states, and they believe that this is the proper time for such litigation, then I am all for it.

[/ QUOTE ]

It's a fairly moot point at this point, as the regs made it clear that the Treasury Dept. has no intention of defining poker as unlawful Internet gambling.

[/ QUOTE ]

But going to court and asking for the Declaratory judgement will enable banks to leave us alone, operators to advertise and operate without fear of persecution, and players to not fear jail. Maybe force the FBI and DoJ to stop airing commercials saying gambling online is a crime. And more importantly, create a headache for the DoJ. Especially, if individuals filed in every Federal district on a slightly different line. The PPA could support every one with money and plaintiffs. We should be fighting a battle of resources as well. I think our lawsuits are FAR, FAR cheaper to pursue than it is for the government to defend. And, we only need one victory, a defeat really doesn't set us further back.

[TheEngineer]

[ QUOTE ]
[ QUOTE ]
[ QUOTE ]
TE, there are very few agencies whose regulations have the force of law. IRS regulations do not have the force of law and often do not survive a court challenge. I know that some agencies have the power to issue regulations that do make law. The SEC is one example.
But these regulations are not new law. So vague regulations do not make the case for online poker better, or worse, in court than a regulation expressly defining online poker to be unlawful internet gambling. Such an express regulation would not screw us for years and we could still comment against it. Just like we can comment to make these regulations less vague for our side; like my proposed definition of unlawful internet gambling.
However, if Skall and Milton believe that the PPA has standing to bring a declaratory action that online poker is not covered by the Wire Act or UIGEA, in most states, and they believe that this is the proper time for such litigation, then I am all for it.

[/ QUOTE ]

It's a fairly moot point at this point, as the regs made it clear that the Treasury Dept. has no intention of defining poker as unlawful Internet gambling.

[/ QUOTE ]

But going to court and asking for the Declaratory judgement will enable banks to leave us alone, operators to advertise and operate without fear of persecution, and players to not fear jail. Maybe force the FBI and DoJ to stop airing commercials saying gambling online is a crime. And more importantly, create a headache for the DoJ. Especially, if individuals filed in every Federal district on a slightly different line. The PPA could support every one with money and plaintiffs. We should be fighting a battle of resources as well. I think our lawsuits are FAR, FAR cheaper to pursue than it is for the government to defend. And, we only need one victory, a defeat really doesn't set us further back.

[/ QUOTE ]

I agree. My comment was specific to wanting the regs to define poker as unlawful Internet gambling.

[JPFisher55]

Milton, I certainly agree that an Action for a Declaratory Judgment that online poker does not violate the Wire Act or the UIGEA, except for a few states, is far more likely to succeed than the iMEGA litigation. I am more optimistic about the iMEGA case than you, but you are right about it having to win on a broader basis than online poker which has clear supporting case law.
Not sure that iMEGA needs a home run, but at least a double. Declaratory Judgment for the federal legality of online poker and legality in most states just needs to avoid a strike out through bad umping. I do have one question, does the PPA have standing for such an action and is it ripe?

[Skallagrim]

The regulations are not final yet. I said IF they have the effect of hindering my abilty to deposit money (that specific enough for you Milton) at my favorite online poker sites, I have standing to sue. Same is true for many if not most PPA members.

First step is to try and get regulations that dont stop our play, if that does not happen, we sue. Again, the fear is regulations that encourage banks to disallow our "legal" activity. If we can stop that, we must. If we cant, courts are the next option.

Skallagrim

[JPFisher55]

[ QUOTE ]
OK, OK - what an old joke, LOL.

You know I was talking about standing to bring the lawsuit, any PPA member who lives in a state that does not have a specific internet poker law could be the plaintiff.

Better still is a plaintiff in a state with the skill v. luck definition of gambling.

Best is a plaintiff in a state where poker is pretty clearly NOT gambling.

[/ QUOTE ]

Hey Skall, how about Missouri. I believe that it has a case that ruled that poker is a game of skill and not a lottery under Missouri law.

[Jimbo]

[ QUOTE ]
TE, there are very few agencies whose regulations have the force of law. IRS regulations do not have the force of law and often do not survive a court challenge.

[/ QUOTE ]

Balderdash! Rulings and procedures do not have the force of law but all Federal (and nearly all State) regulations do. Where did you come up with this idea? A Wiki?

Jimbo

[DeadMoneyDad]

[ QUOTE ]
The regulations are not final yet. I said IF they have the effect of hindering my abilty to deposit money (that specific enough for you Milton) at my favorite online poker sites, I have standing to sue. Same is true for many if not most PPA members.

First step is to try and get regulations that dont stop our play, if that does not happen, we sue. Again, the fear is regulations that encourage banks to disallow our "legal" activity. If we can stop that, we must. If we cant, courts are the next option.

Skallagrim

[/ QUOTE ]

Would simply being a real money account holder be enough to have standing or would you have to actually have paid e-pisspoorservice.com or someone else something to have standing.

Does your poker status pre-UIGEA make any difference. I.E. does it improve your case if you had made deposits pre-UIGEA?



D$D<--willing to move back to MO!

[Skallagrim]

Just being a player denied the right to play for money by being unable to engage in a lawful transaction should be sufficient standing to sue.

There are three "best" states for this suit: California and Missouri because they do have case law supporting (non-video) poker as a game of skill, and New Hampshire because the definition of gambling is so restrictive (basically betting on your result in any game where your actions make a difference to the outcome is excluded from "gambling").

In most of the other states we would have to use the "poker is more skill than chance" argument.

In a few states (like Ohio) poker is defined as gambling, but even that still leaves the "no mention of the internet" argument."

Some states mention the internet and poker (like Nevada) but the statutes are attackable because they allow for state licensed operators - a commerce clause argument.

Some states, like the always mentioned Louisiana and Washington are right out - although there is a creative challenge to the Washington law already working its way through the courts.

Skallagrim

[JPFisher55]

Ok Skall, I reside in St. Louis. I looked up Harris v. Missouri Gaming Commission. It is about what games boat-in-the-mote casinos could offer during the brief time that they violated the MO constitution. FWIW, the lawyers for the casinos really blew it on that one and the gaming commission granted licenses that they should not have granted. Fortunately for the casinos, the voters quickly approved an amendment to the MO constitution permitting casinos within 1000 feet of river. However, a lawyer with whom I attended high school was indicted in federal court, pled guilty and disbarred essentially for assisting the casinos in bribing certain members of the gaming commission.
Anyway the case clearly holds that poker is a game of skill and thus not a lottery that the MO constitution makes illegal.
So I guess I could be a named plaintiff. I am a customer of Epassporte. If the final regs give prevent me from using Epassporte, I am ready to serve as a named plaintiff. I assume that the Action for Declaratory Judgment would be premature until the final regs are published. This might not occur until 2009, according to Ms. Schluman of CardPlayer.

[DeadMoneyDad]

[ QUOTE ]
Just being a player denied the right to play for money by being unable to engage in a lawful transaction should be sufficient standing to sue.

There are three "best" states for this suit: California and Missouri because they do have case law supporting (non-video) poker as a game of skill, and New Hampshire because the definition of gambling is so restrictive (basically betting on your result in any game where your actions make a difference to the outcome is excluded from "gambling").

In most of the other states we would have to use the "poker is more skill than chance" argument.

In a few states (like Ohio) poker is defined as gambling, but even that still leaves the "no mention of the internet" argument."

Some states mention the internet and poker (like Nevada) but the statutes are attackable because they allow for state licensed operators - a commerce clause argument.

Some states, like the always mentioned Louisiana and Washington are right out - although there is a creative challenge to the Washington law already working its way through the courts.

Skallagrim

[/ QUOTE ]


These instances also go to the "problem" banks would face if given the governmental duty of determining the legality of the source of funds being transfered, IMO.

I still have Missouri bank accounts. But my bank does not know where I am playing poker or where I played poker on-line when I won all or part of any money being transfered.

So my premise would be even if the government was some how able to give the banks and money transfer institutions this uniquely governmental duty, determining legality, even the banks in a perfect world would not know if any of my winnings in the form of a withdraw were legal or not.

Take this to the extreme. Say I lived in WA where poker is considered illegal. If I every traveled into Canada and played in my on-line poker account the money I won there was not gained from any illegal activity in the eyes of Canada, the US, or even WA state. Unless I missed something. So when I make a withdraw to my WA state bank in WA, how the hell can it it ever know 100% that it was illegal? Sure the bank might be able to prove that the money was comming from an "evil semi-black listed" off shore gambling site, but how can it determine I actually broke a law when I won the money?

Or is this some how covered by some other law?


D$D<--loves mixing arguements.

[oldbookguy]

Though this thread is devoted to relief for poker, it is time for relief from the entire UIGEA.

The writers acknowledge ALL the problems noted as correct.

To my lawyer friends, since the Government argued against IMEGA that no regs were published, it was not ripe, can IMEGA now, ask for a secondary hearing for additional fact finding and present the acknowledged UIGEA,2006 problems now even though the hearing is over since no ruling has been made.

I would think that the DoJ, FSRB & Treasury knew these were being released and withheld them from publication (and the court) until AFTER the hearing to bolster their unripe position.

obg

[Skallagrim]

OBG - an attack based on the content of the regulations will have to wait until the regulations are final. The ones we have now are just "proposed."

But we should start planning the attack now, the regulations are not likely to change much.

Skallagrim