7/10/2007 iMEGA Suit Against UIGEA Strongest Fight Against the US Bill

[niss]

[ QUOTE ]
Joe Brennan, Jr., iMEGA founder and a former executive of AOL, quoted in Gambling911.com:

"The UIGEA can still be enforced prior to the September 4 date," he said. "But we feel confident that the judge will prevent that from happening."

Brennan went on to explain how enforcement of the UIGEA would only serve to make the judge's job more cumbersome.

"She (the judge) will then have to wade through all the rules and regulations in addition to reviewing our complaint."

This is possibly the publicly posted reasoning I have ever seen, even on Gambling911. (Please note the crucial transitional paragraph is not a direct quote) Did iMEGA really say the Judge would act before the Regs are out BECAUSE otherwise she would have too much to read through ? wtf kind of public statement would that be ? It is patently absurd, worse than the late NROG's legslative analysis or most of what Gaboonviper posts.

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The whole reporting of this has been retarded. First they said that the application had been filed directly with the Third Circuit (which I am pretty sure is a legal impossibility). Then they are quoted as saying that the judge might act on the motion before the return date, before the government has submitted its opposition, and before she's heard argument (assuming argument is even held), something that happens in, oh, about 0% of cases.

It's stuff like this that makes these type of applications, and indeed the fight against the UIGEA, come across as utter nonsense. They'd be a whole lot better off if they'd either shut their mouths or say stuff like "we've filed our papers, we think we've made good arguments, it's now in the hands of our lawyers and the courts". And if I was the attorney and I would tell my client that all statements to any type of press outlet, no matter how loosely we define "press", must be run through me first.

[JPT III]

[ QUOTE ]
[ QUOTE ]
Comment noted.

There is a US District Court for the District of New Jersey. It certainly has local rules and procedures. The suit was filed in the US District Court there. I think it would be covered by both the FedR.Civ.Pro and the local (New Jersey) US District Court rules.

(But of course, since you read the underlying brief document you already knew the matter was pending in Federal court, not State court.)

[/ QUOTE ]

They filed their request for a TRO by notice of motion and not by Order to Show Cause. Hence the return date of September. Very unusual. I can't see how you get a TRO without showing exigency, and if there is exigency they would have proceeded by Order to Show Cause. I was going to say in my original response that I think this motion has a snowball's chance in hell of succeeding, having read the papers, but I don't want to kill the party.

By the way I practice in NJ federal court regularly and can try to answer any questions about procedure (I haven't made it all the way through the thread yet so if there's anything further below I'll respond if I can).

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niss, welcome to the thread, and thanks for chiming in! Since you seem to have access to the court docket (e.g., you knew about the notice of motion filed), can you tell us whether the TRO application was filed just this week (when the brief was), or earlier (with the complaint in June). Also, if you have access, were there supporting affidavits filed with that brief??? I don't see anything in that brief referring to any evidence on the record submitted by anyone with PERSONAL KNOWLEDGE of the facts they are arguing. Good luck with the standing argument and irreparable injury argument without and evidence!!! niss, please tell me there are supporting affidavits.

OK, just a couple more questions and I'll let you get back to work: Why in the hell would they even seek a TRO if moving under a notice of motion?!?! I mean, the whole point of a TRO is to get (usually) ex parte relief, and to get it immediately; a notice of motion (rather than OSC) isn't going to get that done. It seems to me that their TRO app is really a de facto motion for a preliminary injunction, right? Maybe NY state court practice is drastically different, but I've NEVER HEARD OF MOVING FOR A TRO BY NOTICE OF MOTION.

Finally, what's with the count in the complaint seeking a TRO?! Is that a federal court thing? In NY state practice, a TRO is an application -- a motion to be made -- perhaps simultaneously with the complaint, but not within the complaint. Since when do we include motion practice as a claim in a pleading??? Either federal practice in the area of provisional remedies is strangely different than NY state practice (which I find doubtful), or these attorneys are as*-clowns. Talk to me....

[JPT III]

[ QUOTE ]


The whole reporting of this has been retarded. First they said that the application had been filed directly with the Third Circuit (which I am pretty sure is a legal impossibility). Then they are quoted as saying that the judge might act on the motion before the return date, before the government has submitted its opposition, and before she's heard argument (assuming argument is even held), something that happens in, oh, about 0% of cases.

It's stuff like this that makes these type of applications, and indeed the fight against the UIGEA, come across as utter nonsense. They'd be a whole lot better off if they'd either shut their mouths or say stuff like "we've filed our papers, we think we've made good arguments, it's now in the hands of our lawyers and the courts". And if I was the attorney and I would tell my client that all statements to any type of press outlet, no matter how loosely we define "press", must be run through me first.

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I couldn't agree more. Had they moved by order to show cause, the judge might have acted before the return date, but I cannot imagine it happening now. Even that would have been unlikely, as the TRO language would have either been granted or denied very close to, or contemporaneous with, the filing of the motion and the generation of the return date.

And the statement that the UIGEA "can still be enforced prior to Sept. 4" is wildly misleading and will give readers false hope. 25 to 1 says it can be enforced after the Sept. 4 return date, regardless of the outcome of the motion or the iMedia case.

[niss]

The motion was filed 7/10. There is an Affidavit, which I've read. If I recall correctly, it was from a consultant for IMEGA. He didn't seem to have personal knowledge of a whole hell of a lot. Nothing from any member of IMEGA testifying as to how they have been damaged by the UIGEA.

I just took a look at the Notice of Motion. It's worse than I thought. It's titled as a motion for a preliminary injunction ... but it describes the relief they are seeking as a Temporary Restraining Order only. Nowhere in the body of the notice of motion do they refer to a preliminary injunction. Perhaps it's in the brief somewhere. BRUTAL.

Let's not beat around the bush here. It's not like IMEGA has hired the best and brightest minds in NJ to handle this case. They hired a small firm (I think it's 5 attorneys) in Warren to handle this. Don't get me wrong ... solos and small firm litigators can be just as capable as, if not more capable than, those of us at the larger firms, but it's a case of "show me" with them, and their papers don't show me anything.

[JPFisher55]

I read iMEGA's original petition and its recent brief. It seems to me that they are seeking a preliminary injunction against enforcement of the UIGEA in their brief and a final injunction against application of the Wire Act to online gambling and the UIGEA in their petition.
They used the term TRO, but the documents didn't seem to be in the nature of immediate relief.
Besides what regulations are going to become effective by September 4? None.
I am perplexed by the failure to name any members of the iMEGA. I thought that this was needed to prove standing. Maybe they intend to provide this information in a sealed document to the court. Their documents suggest this necessity because their members fear prosecution.

[JimmytheHat19]

[ QUOTE ]
All your concerns are justified. Do not count on even the current situation to remain. (I think it will to a large extent, but be prepared for change. Keep in mind that eight years ago your "job" did not exist afterall.)

Do not leave money you need to pay bills in your poker bankroll. Take it out and put it somewhere a bit more liquid and safe.

If you really make 3x as much playing online poker as hanging sheetrock, consider leaving the country to keep your "job". (People leave their home country to pursue a better economic situation every day. Why do you think online operators are offshore ?)

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Oh man, worst-case scenario indeed. Are you serious about this? Do you think it will come to that potentially? I am "prepared for change" as you say, but IDK if I'm prepared to leave the country. Won't players always be able to send in paper checks (personnal or cashier) and then won't the sites always be able to send me a check (assuming all the e-wallets pull out)? I thought I heard someone say once that AG Gonzalez wasnt confident that the UIGEA could be enforced and that paper checks would likely slip through the cracks... is this true? I mean, give me a little hope here. How soon do you think sh*t might hit the fan, if it indeed does? Will the current situation remain the same for at least 6 months? 3 months? Does ANYONE have ANY idea what the future of online poker holds? I mean, how bad is it really gonna get. I scare myself sometimes when I read these threads and cause myself extra stress and worry.

[permafrost]

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I am perplexed by the failure to name any members of the iMEGA. I thought that this was needed to prove standing. Maybe they intend to provide this information in a sealed document to the court. Their documents suggest this necessity because their members fear prosecution.



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Help me here.

If the member's businesses are lawful then UIGEA doesn't apply to them, where's the problem?

If the member's businesses are unlawful, then why is UIGEA's added penalty for that unlawfulness unconstitutional? Or are they saying all gambling laws are unconstitutional?

[MiltonFriedman]

See, ACLU v. Gonzales. A business which is lawful in some states is subjected to a federal law exposing it to unwarranted risk in other states, which have different laws.

In the ACLU case, there was 1st Amendment speech protected, even though the websites involved were businesses. The Court there said that the less intrusive means of internet technologies protected the US' interest in protecting children against viewing "porn" , so the "ban" which placed the sites at risk was unconstitutional because it interfered with their rights (and their viewers' rights) in the states where their activity was not illegal.

The shared issue with the iMEGA claim would be whether a given site's content was "legal" under various state laws. This is analogous to whether poker is unlawful internet gambling under various state laws.

iMEGA needs to get both US players and US suppliers to the online gaming industry to join to make its case in the strongest posture.

[permafrost]

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A business which is lawful in some states is subjected to a federal law exposing it to unwarranted risk in other states, which have different laws.


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But if it is a lawful business in some state, UIGEA ignores it, so how does UIGEA expose it to any risk?

Now if that business enters another state where their service is unlawful, UIGEA applies along with the state laws that were broken. What's unconstitutional about a penalty for lawbreaking?

[MiltonFriedman]

That an internet site is subjected to risk of prosecution in State B or under a federal law adopting a violation of State B law, while the same content is legal in State A is the crux of the Constitutional issue, as applied in ACLU v Gonzales to the federal Child Porn Act, enforcement of which was enjoined permanently.

Unless I am missing some facts, I do not think the Child Porn Act made conduct in State A illegal. (That the same discredited Child Porn Act structure, though already enjoined, would be used in drafting the 2006 UIGE Act is not surprising, consider the sources of both.) (Someone with time to do so might want to review the ACLU facts to make sure I have it right, I do not have the case in front of me.)

Internet gaming is not exactly the same a publishing text and pictures, which enjoy a high protection under the 1st Amendment, but the case is full of alternatives the federal government COULD have used to protect its state interest short of subjecting site operators ro prosecution under State B claims for conduct legal in State A.

That the site is a business does not mean it is ineligible for 1st Amendment protection (albeit lesser scrutiny) and does mean that the Commerce Clause may protect the business's interest.

Some "legal" players would help the case posture immensely.