A question for the lawers

[Cactus Jack]

The Court in California ruled that poker is a game of skill.

The Tax Court has ruled that poker is a game of skill.

Why aren't these precedents used to differentiate poker from other gambling issues?

Is this like abortion, still debated despite being the law of the land for a generation?

CJ

[JPFisher55]

Basically each state has different laws and rulings. So for state law you have to interpret each state's laws.
The tax court decision does not necessarily apply to other laws. But a the federal Fifth Court of Appeals ruled that the Wire Act only applies to sports betting. Yet, the DOJ insists that it applies to all internet gambling and gaming. However, the DOJ has never prosecuted a poker only website or business concern. Cardplayer carries ads for poker websites, using the .com address in the ad.
IMO, the poker sites that left the US market did not have to leave unless they offered sports betting. But they did not want to risk a legal battle with the DOJ. Most ewallets left the US market because they provide services to sports betting sites, which is the basis for the prosecution against the Neteller execs under the Wire Act. I still think that the Neteller execs had valid defenses, but they settled. OTOH Epassporte openly serves US customers, but will only service poker only sites. The DOJ has not prosecuted Epassporte. Without a real test case with a prosecution by DOJ against some online poker concern, the law is still a matter of legal opinion, but the DOJ's failure to act IMO shows its real legal opinion.

[DeadMoneyDad]

[ QUOTE ]
Basically each state has different laws and rulings. So for state law you have to interpret each state's laws.
The tax court decision does not necessarily apply to other laws. But a the federal Fifth Court of Appeals ruled that the Wire Act only applies to sports betting. Yet, the DOJ insists that it applies to all internet gambling and gaming. However, the DOJ has never prosecuted a poker only website or business concern. Cardplayer carries ads for poker websites, using the .com address in the ad.
IMO, the poker sites that left the US market did not have to leave unless they offered sports betting. But they did not want to risk a legal battle with the DOJ. Most ewallets left the US market because they provide services to sports betting sites, which is the basis for the prosecution against the Neteller execs under the Wire Act. I still think that the Neteller execs had valid defenses, but they settled. OTOH Epassporte openly serves US customers, but will only service poker only sites. The DOJ has not prosecuted Epassporte. Without a real test case with a prosecution by DOJ against some online poker concern, the law is still a matter of legal opinion, but the DOJ's failure to act IMO shows its real legal opinion.

[/ QUOTE ]

IMO the test on e-pass will be after the UIGEA regs are finalized.

As I understand it in CA, and Tuff would know this better, the rules are not skill vs no skill but "controled game." So to me the skill agrument has some validity but isn't controling.


D$D

[checktowin]

good point

[tangled]

[ QUOTE ]
Basically each state has different laws and rulings. So for state law you have to interpret each state's laws.
The tax court decision does not necessarily apply to other laws. But a the federal Fifth Court of Appeals ruled that the Wire Act only applies to sports betting. Yet, the DOJ insists that it applies to all internet gambling and gaming. However, the DOJ has never prosecuted a poker only website or business concern. Cardplayer carries ads for poker websites, using the .com address in the ad.
IMO, the poker sites that left the US market did not have to leave unless they offered sports betting. But they did not want to risk a legal battle with the DOJ. Most ewallets left the US market because they provide services to sports betting sites, which is the basis for the prosecution against the Neteller execs under the Wire Act. I still think that the Neteller execs had valid defenses, but they settled. OTOH Epassporte openly serves US customers, but will only service poker only sites. The DOJ has not prosecuted Epassporte. Without a real test case with a prosecution by DOJ against some online poker concern, the law is still a matter of legal opinion, but the DOJ's failure to act IMO shows its real legal opinion.

[/ QUOTE ]

But hasn't the poker only sites, like Party, broken tax laws by failing to report the winnings of some of their bigger players to the IRS?

[Skallagrim]

JP's is a good summary. There are a couple of other points to be made: both the CA and MO supreme courts ruled poker was not a "Lottery," lotteries being barred by their state constitutions. Each of them also held, to one degree or another, that a lottery was any wagering scheme in which chance was predominant over skill. So it is correct, though not exact, to say they ruled poker more skill than chance. CA's statute covering cardrooms is where the distinction is made between controlled and uncontrolled games. Only poker where a rake is taken (hence making it a "percentage" game) is a "controlled" game in CA.

The Lower Court in the Baxter case explicitly ruled poker a game of skill, but by the time it got to the SCOTUS, the issue was much narrower, and it really only held that since Baxter was exercising at least some amount of skill when he played poker, he could file as a business (a pro) and treat his poker income as "earned" income.

All these cases help us, but they dont completely decide the issue due to slight variations in each state's gambling law.

That poker is not illegal as a matter of Federal law is now pretty well accepted thanks to the Mastercard case inthe 5th Circuit. But technically this case is not binding on the other circuits nor, of course, to the SCOTUS. That DOJ declined to appeal it to the SCOTUS shows they know the SCOTUS, and other circuits, would likely agree.

The DOJ knows full well that they could lose a prosecution of a poker-only site or an e-wallet that limits its funding to just poker, and this scares them. They could also win, which scares some sites.

And skill v luck is only ONE issue for this court case - international law, commerce clause law, and certain UIGEA specific language (is a poker site in the "business" of betting and wagering when it obviosly does not bet or wager itself? e.g.) all make this a very complicated issue.

Which is precisely why the regulations, if they ever formally come, will not mean much. The regulation writers have already taken the clear stand that they will not try and reslove the issues I have listed above - they want the banks to guess at the answers, which may or may not be worse for us, depending on the final regulation specifics.

PS -since there is no formal regulation of online gaming for offshore cites, they are not violating the tax law by not reporting "wins" over a certain amount (the only applicable reporting law). A US poker site would be though.

Skallagrim

[JPFisher55]

Good points Skall. If any test of Epassporte comes if, and after, the regs are final, it will be litigation to have online poker and, thus Epassporte, declared by a court to be lawful because banks are blocking its transactions.
BTW, Skall what do you think about the delay in the decision of the iMEGA case? I cannot figure out why the regulations are so important to the granting of a preliminary injunction, except that they may help iMEGA. Does the delay mean that the suit will not be dismissed for lack of standing?

[Skallagrim]

JP, you are a lawyer too, you know a delay BY A JUDGE in making a decision can mean anything /images/graemlins/wink.gif .

But the likely problem is that the shotgun approach of the iMega suit means the judge has to make multiple rulings, not all involving the same law or arguments.

I believe a fair bit of the iMega suit will survive the standing/ripeness challenge, but not all of it. I a pretty sure all parts that concern the still unadopted regulations will go, and the judge will probably exclude other areas that dont directly affect affiliates, the only specific persons (as far as I know) iMega has identified in their "group" of plaintiffs. But it is hard to say for sure at this early stage of the litigation.

Skallagrim

[MiltonFriedman]

As the man said at each passing floor, having jumped from the roof, "So far, so good."

Chance of outright dismissal of all counts remains about 70%, with no ruling on the merits

Chance of dismissal, with a very negative ruling on the merits 25%

Chance of denial of preliminary injunctive relief against the promulgation (issuance) of the Regulations 0%,

Chance of denial of preliminary relief, but allowing further discovery/proceedings 5%

These guesses are certainly better grounded than yet more mindless cheerleading on the way to the pavement.

[JPFisher55]

Milton, I think you are way too pessimistic. If the judge was going to dismiss the lawsuit, then she would have by now. Why wait and deliberate this long? I still think that the most likely outcome is denial of all motions to dismiss and for preliminary injunction with the case proceeding to discovery and trial.
Skall, I have limited experience in litigation. But the few times that I have seen this long a time for a decision tends to favor the side with the hardest decision for the judge which is usually the plaintiff. But I agree anything could happen.

[niss]

[ QUOTE ]
If the judge was going to dismiss the lawsuit, then she would have by now. Why wait and deliberate this long?

[/ QUOTE ]

Because she's busy? And her clerks have mountains of other motions they need to decide before this one?

[MiltonFriedman]

or 100 other reasons.

However, ignore all those and look at what Skall wrote, the iMEGA filings were a classic kitchen sink and hodgepodge. Even if the case were ripe for dismissal, it would take a long time to address each item.

I will stand by my guess.

(JP, The ONLY shot the Plaintiffs have here is that the Court may will be subsilentio pissed off about the Proposed Regs coming out the next day, with no mention by Justice that was in the works. Hence a 5% shot at leave to amend. All that would get these Plaintiffs however is a chance to amend and try again with real named plaintiffs having a concrete case in controversy .... such as the PPA members ????)

[JPFisher55]

I do not disagree with Skall very often. But I do disagree with his, and Milton's, description of iMEGA's case. It is a prayer for an injunction against enforcement of the UIGEA and the Wire Act against Internet gambling. The request for preliminary injunction is only to injoin enforecment of the UIGEA and its regulations. iMEGA has several arguments in support of its requested relief. Chief among them is that a private citizen has the right of privacy under the US constitution to engage in Internet gambling in his or her home and these laws infringe on this right of privacy without any government rationale. iMEGA also argues that these laws are overbroad because they infringe on someone's right to engage in a form on Internet gambling who lives in a state where such form is legal; even though that form might be legal in another state. iMEGA also argues that these laws must be interpreted to not conflict with the WTO decision on Internet gambling.
I do agree that the standing issue may be a weakness of the iMEGA position. But I still believe that if the judge had decided to dismiss the case due to lack of standing, she would have by now. I could of course be wrong. But Milton, IMO you are placing too much emphasis on the present lack of a named plaintiff. iMEGA has alleged that affiliates of Internet gambling sites are members of it. This may have solved the standing problem.
The delay past the judge's stated time period, which didn't mean much, could be due to having to examine each argument of the iMEGA and now the proposed regulations. So, yes, even if standing was not fatal, it could take some time to examine and reject each argument. But IMO, even if the judge thinks iMEGA's case is weak on the merits, she would still likely let it proceed to discovery and trial on the merits. IMO what the judge may be considering is whether a preliminary injunction is merited. After all even if the judge thought that iMEGA's case was strong, the judge might be pondering whether iMEGA has demonstrated any irreparable harm or other cause that requires a preliminary injunction.
IMO the odds of a dismissal is only 25% (clearly iMEGA thinks that it is less), but odds of granting the request for Preliminary Injunction I put at only 10%. Granting a preliminary injunction would almost end the case in iMEGA's favor and may not be necessary to prevent irreparable damage. So IMO the most likely scenario is that the judge grants no relief at this time and the case proceeds to discovery and maybe a trial on whether a final injunction should be issued.
If the judge doesn't really want to rule either way, then this method delays the case until the WTO takes action on Antiqua's request for sanctions and may delay it past WTO arbitration on all the compensation claims for US withdrawal from its WTO internet gambling commitments. The judge may decide to let these events play out because they may make the whole case moot. Wouldn't be the first time that I have seen a trial judge punt on a difficult and controversial case. I even have personal experience with that outcome although in a MO state court. Heck maybe the judge will wait until after November 30, the date that the WTO is to rule on Antiqua's request for IP sanctions.
Anyway I doubt that any two good lawyers agree on any part of this case, the apparent delay in the decision or any part of the outcome. I have read many numerous opinions and I doubt that one is a more valid prediction than another. So this post is just my opinion which is no more, or less, valid than Skall's or Milton's. I'll wait until the judge releases some decision before commenting further.

[Kaka]

General question: which side does the delay in issuing a preliminary injunction favor?

my thought would be the party seeking the injunction is favored in that a defendant may not want to act while the court is considering enjoining their activity. kind of a pocket injunction. or is that line of reasoning naive?

[MiltonFriedman]

If the Defendant is strangling the Plaintiff or otherwise causing the Plaintiff harm, then delay always favors the Defendant.

An injunction is a requeat to the Court to make the Defendant stop doing something, its delay never helps the Plaintiff.

[JPFisher55]

Yeah, but I don't see what the Defendant is doing that causes much harm to the Plaintiff. This is one reason why I think that most likely outcome is a denial of all motions and setting of deadlines for discovery and final trial setting.

[Lottery Larry]

Skall, a couple of questions:

[ QUOTE ]
That poker is not illegal as a matter of Federal law is now pretty well accepted thanks to the Mastercard case inthe 5th Circuit.

[/ QUOTE ]

Will a simple search/google find the details of this case, or would you need to point me (as a non-lawyer)?


[ QUOTE ]
(is a poker site in the "business" of betting and wagering when it obviosly does not bet or wager itself?

[/ QUOTE ]

I assume that the various betting "clearinghouses" are built around the assumed answer of NO to this question.

Is it a legitimate legal argument to make that the facilitator and controller of a gambling interaction, who profits by fee from that transaction, is not in the business of gambling?

[ QUOTE ]
they want the banks to guess at the answers, which may or may not be worse for us, depending on the final regulation specifics.

[/ QUOTE ]

Doesn't this make you very nervous, depending on banks and other financial institutions (especially those with connections or business interests tied to fed gov't approval) to make aggressive or liberal interpretations of vague regulations?

I would expect them to default to the conservative CYA stance that would most protect them, not the freedoms of others. Banks are rarely trailblazers.

[Skallagrim]

I dont have the cite for the mastercard case handy - its been posted on the web a few times though, link to come later if someone else doesnt give it.

On the "business of betting and wagering" thing, its new question under the law, so what the courts would ultimately rule is a guess. But certainly it can at least be argued that only sites that provide house-banked games or take sports bets are in the business of betting, 'cause they are the only ones who are actually engaging in betting with the player. This is one of many arguments as to why the UIGEA does not apply to poker-only sites.

And yes, as you will find discussed in the thread on comments to the regs, banks over-blocking is the undeniable major threat to us from the UIGEA.

Skallagrim