iMEGA on standing & ripeness

[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".

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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). [img]/images/graemlins/grin.gif[/img]

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?