AMERICAN GAMING ASSOCIATION V. POKER STARS

Poker
By Wendeen H. Eolis
Poker Player Newspaper
March 13, 2013

Unlikely collaborations as well as predictable conflicts have marked the relationship between Caesars Entertainment, Inc. (formerly Harrahs) and PokerStars (Rational Group) since the enactment of the Unlawful Internet Gambling Enforcement Act of 2006. For the moment the collaborations seem like bygones.

The American Gaming Association, a trade group that is best known for representing the interests of commercial casinos in Nevada and almost as well known for its close ties to Caesars took the unprecedented step last week of opposing PokerStars’ efforts to obtain a gaming license In New Jersey.

The Association has effectively picked up where the United States Department of Justice left off in its settlement last summer with PokerStars. Last July, the DOJ settled its civil claims against the Company, arising from the government’s ballyhooed prosecution of online gaming. The cases originated April 15, 2011 in the indictment  U.S. v. Scheinberg et al.

The Black Friday cases, as they have come to be known, are not over for PokerStars as far as the AGA is concerned, any more than they are over for PokerStars founder Isai Scheinberg who remains under the cloud of indictment.

Last week, the AGA offered up an unsolicited legal brief to the New Jersey Division of Gaming Enforcement concerning PokerStars’ efforts to obtain a gaming license in the state. The brief pillories the PokerStars brand and implies along the way that Isai Sheinberg remains inextricably linked to the Company despite the settlement order which required him to step down as part of PokerStars management by the end of last summer.

The charges in the AGA brief are unrelenting; the rhetoric is inflammatory. But… “The AGA’s papers are compelling,” say many of the pre-eminent gaming attorneys who help to dissect the brief exclusively for this writer’s report of the rising heat.

Lawyers say to get to the heart of PokerStarse’ suitability for a license one must ask the right questions.

They have reached a consensus on a few of the  queries to ponder:

1. Why did Poker Stars conclude affirmatively that their online poker fare was legal in America after enactment of UIGEA?

2. If PokerStars concluded that their activities were legal post 2006, why did they treat poker player deposits as anything other than ACH deposits for online gambling?

3. Why does PokerStars refer to the DOJ as authorizing, permitting or otherwise blessing its efforts to obtain a casino gaming license anywhere in the United States?

4. Has Isai Sheinberg’s mandated departure from the management of PokerStars actually occurred?

5. Do the ongoing criminal charges against Isai Scheinberg reflect on the current suitability of the Company?

The observations below reflect two caveats offered repeatedly during the course of our discussions: 

“One should take into account in considering the brief that the AGA represents a special interest group, which includes many PokerStars would be competitors – some under extreme financial pressure.”

“The Association’s brief wholly disregards the Company’s sterling reputation in the vast world of poker players who idolize the Company for its responsiveness to customers and its integrity in money matters with them.”

Tomorrow: How do AGA  Supporters and PokerStars Supporters Answer These Questions

POKERSTARS AND CAESARS: WHAT IS THE SCORE?

Poker
By Wendeen H. Eolis
Poker Player Newspaper
March 12, 2013

A complicated relationship between Rational Group (PokerStars) and Caesars Entertainment has begun to reveal itself in earnest in recent weeks with an eclectic crowd of movers and shakers surrounding the players at the top of their respective pyramids.

The two companies, with assistance from empowered supporters, have been known to deliver understated slaps back and forth over the years, but lately the protagonists are exchanging more powerful blows.

Members of the Scheinberg family and top executives in the corporate empire of Caesars Entertainment are in the mix. So are the likes of American Gaming Association president, Frank Fahrenkopf, who will soon take his leave from his longtime position there.

The cast of characters in recent machinations between the two companies has also included Scott Wilson, a business consultant/professional gambler with powerful connections. He was the spark that ignited a telephone call between Caesars and PokerStars – the call that was heard around the world last week in a report by Nathan Vardi in Forbes  Magazine.

Mark Scheinberg and Mitch Garber are the key players in the sandbox

Poker Player Newspaper has learned the identities of the “two high level officials” that were referenced without attribution in the Forbes article. They were Mitch Garber, CEO of Caesars Interactive, and Mark Scheinberg, CEO of PokerStars.

According to multiple sources knowledgeable about the discussion, Garber and Sheinberg had a short, casual conversation that centered on Caesars’ potential interest in selling the Rio All Suites Hotel and Casino and the World Series of Poker. The same sources also emphasize that the conversation was opened and closed in the space of a few minutes. One lawyer who knows both men said, “I doubt it rose to the level of a serious fishing expedition on either side. The companies don’t trust each other.” PokerStars noted and then brushed off the conversation by grandstanding its disinterest. Caesars has remained mute, apparently concluding that its public relations machine should lay low and allow silence to be golden for the moment.

But the overall plot thickens as the two companies contemplate their respective strategic plans – each seeking to become the most dominant force in the anticipated resurgence of online gaming in America.

Nevada legislation frustrates PokerStars’ bid to thrive in America

On February 21st, Nevada Governor Brian Sandoval signed a new piece of legislation, the Interactive Gaming Act. The new state law contains a clause that presumes unsuitability of online poker companies that accepted bets from US facing sites after enactment of the Unlawful Internet Gambling Enforcement Act of 2006. The law seems pointedly designed to freeze PokerStars out of the online gaming world in Nevada – for the foreseeable future. Caesars Entertainment has been widely rumored as the leading force supporting that position.

New Jersey Department of Gaming Enforcement is now on deck

Meanwhile the American Gaming Association has since fired on PokerStars’ aspirations in New Jersey. Last week the AGA submitted a legal brief to the State’s Division of Gaming Enforcement that clearly intended to thwart if not fully dislodge the Company’s efforts to gain a foothold in the Garden State.

The Association which has most notably represented the interests of brick and mortar casinos in Nevada, and which is known to have especially close ties to Caesars Entertainment, blasted PokerStars in its 26 page brief, declaring the online poker company as unsuitable for a gaming license. The AGA spelled out its unprecedented opposition against a gaming license application with inflammatory accusations of “chicanery” and pervasive criminal activity for years” leveled at PokerStars.

The phone call

The charges were met with a swift barrage of missiles launched by PokerStars in the direction of the C-Suite of Caesars Entertainment. PokerStars publicly revealed the phone call between the two companies, leaving unsaid the specific participation of either Mark Scheinberg or Mitch Garber. PokerStars communications director Eric Hollreiser followed up the opening salvo with a thinly veiled suggestion of impropriety during that conversation on the part of the Caesars executive.

Hollreiser cleverly diverted attention from the scathing AGA brief, but the accusations raised in the brief have yet to be met head on by PokerStars. Similarly the wicked public relations bruising that PokerStars administered to Caesars thus far has been left to fade on its own.

Caesars has demurred from a public response on its reported potential interest in selling the World Series of Poker. And, it hasn’t said a peep in response to the statement by PokerStars that insinuated Caesars had more or less suggested the online company should cozy up to the commercial live casino giant if it hoped to obtain a Nevada gaming license sooner, rather than later.

PPN takes names and reports on the back story

Tomorrow 5PM PDT: the AGA v Poker Stars – Who Scores?  pokerplayernewspaper.com

ONLINE POKER FORUMS: WINDING THROUGH THE MAZE

Poker
By Wendeen H. Eolis
Poker Player Newspaper
February 26, 2013

The history of Internet-based poker forums is as instructive as it is colorful, from its raw roots in the late 1980s at a forum dominated by zealous blackjack counters and systematic craps players to the latest debates by legal experts fueled by Howard Lederer’s storytelling about the rise and fall of his Full Tilt Poker site in interviews and follow-up full of fanfare.

Poker Forums: The world at large!

Today the lives and lifestyle of poker players and poker businesses are chronicled and dissected. They are subjected to all manner of online scrutiny, chatter, and commentary to the delight and chagrin of the industry’s inhabitants, part-time warriors, devoted enthusiasts, dedicated personnel and visionary entrepreneurs – around the world.

Increasingly poker forum participants are the first to shed light on a crisis or breaking news in the industry. Some ignite raging flame wars for sport, while others provide intellectual food for thought, and a few visionaries test their brainstorms and solicit feedback on their grand plans at their favorite forums.

The expanding breadth and depth of content has also attracted attention far beyond the community it was designed to serve, including investigators associated with federal and state government agencies, the judiciary in developing opinions for court decisions, and legislative bodies responsible for making laws to govern gambling activity.

These days, poker forums provide regular reading for Congressional staff and legislators across the country, according to a survey recently conducted by Eolis International Group which has submitted a white paper to a law firm that advises the executive branch of federal government on online, commercial, and tribal gaming matters.

At the end of the day, however, no one is consistently more interested in or intrigued by online poker forums than the poker world itself. From the early years of Wild West acceptance of “anything goes” to their emergence as hubs for research as well as sophisticated discourse and problem solving, these sites typically appeal to posters and lurkers with a zest for gamesmanship, confidence in their gambling skills, and an insatiable thirst for information on happenings inside the perimeter of the poker universe. Today’s poker forums showcase the power, peril, and evolution of free speech in an Internet driven world.

A Big Choice Awaits the Forum Enthusiast

In this two part article we look at the anatomy of poker forums and shine a light on a small sample of them. RGP is highlighted as an originator; BARGE is spotlighted for its expanded appeal; twoplustwo demonstrates the results of harnessing a significant audience through the use of moderators; Wednesday Poker Discussion Group showcases the ability  of a forum to be combined with live events to enhance communication within a city and beyond it; and finally we get insights from pocketfives.com which focused from the beginning on making sense of  forum contributors as much as the contributions; chasing down  “Who’s Who” among the most avid anonymous posters around the globe.

Who are the key players? Who are the moderators? Do moderated forums stymie free speech? Do they enhance civil discourse? Should anonymous posters be taken seriously? How do you follow a thread? How have poker forums affected industry movers and shakers — positively or negatively? Do flamers succeed in trouncing their prey? How does one counteract a smear campaign? Will the Internet veer toward lawlessness or more conventional rules applied to libel in the foreseeable future? Who’s posts should  you trust?  And, most important of all – how can you figure out who and what is reliable when you find the information at an online poker forum.

These are questions that have been asked and answered across the country in a six month nationwide probe into the world of poker forums — including conversations with founders of sites, well-known posters, moderators and lesser known participants as well as a world of savvy lurkers that rarely express their views for public consumption.

Poker Forums: Poker Strategy

Let us begin the journey with a tip of the hat to all of the forums that offer strategy discussions, coaching, and training and related videos as well as poker book reviews, general gambling advice, reliable referrals to accounting and legal services, etc. All of the sites in our sample are known for these discussions, but for the most part we point the laser beam on participant involvement and commitment to inform, debate, advocate, and challenge poker businesses and poker poker players. As one sage poker forum poster quipped, “Beyond the insular community of my poker friends, I am  caught up in daily discussions about matters of money, reputation, and stature.” And so it is on poker forums!

The analysis of gossip and news on these forums is variably illuminating, often transmitted from behind a curtain of hidden identity, rarely mistake-free, and too frequently presented as gospel — at least until the first vociferous critic takes the stage. But there is no denying that forums present myriad opportunities and used artfully have an abundance of merit.

PokerStars Respects the Online Poker Community

PokerStars is a prime example of a company that has taken advantage of the benefits. A uniquely enlightened small company, in its earliest days, PokerStars saw the wisdom of following the conversations at the emerging poker forums, taking note of articulate and sound thinkers for roles in their nascent operations, including the company’s top executive in marketing.

Some ten years later, in a splashy brochure for the PokerStars Caribbean Adventure, the Company cited the importance of feedback it received over the years and personnel selections it made from the this community. And even while in the midst of its feud with the US Department of Justice last year, the Company green lit (quietly) the sponsorship of a lavish banquet for online forum enthusiasts who had taken to a land-based casino to party and talk poker, signaling its continued support of a vibrant interactive poker community far beyond its immediate market.

History of Poker Forums

Now, let us turn back the clock of time to trace a bit of history in the world of online poker discussion groups. Rec.gambling.poker was established in 1989; it notably attracted hard core gamblers fixated on the development of winning systems. In the early 90s it attracted to its ranks card aficionados beyond blackjack counters and gamers skillful at bankroll management. The poker players soon overtook part of the discussions, demanding a sub-set which came to be known as rec.gambling.poker around 1995.

In 1991, however, the first BARGE event was established — before it became known either as the Big August (or Annual) Rec(reational) Gambling Excursion. The excursions of online forum members to brick and mortar casinos were an immediate success. BARGE has not only survived to become the poker forum with perhaps the broadest intellectual exchanges, but also it has spawned many regional members to plan special live events around the country with other “ARG” gatherings annually over the years.

By most accounts, however, it was poker author and theorist, Mason Malmuth who most effectively harnessed broad scale interest in moderated online poker discussions. He has grown the twoplustwo poker forum into a must read site for movers and shakers of the poker world, devotees of the game, mainstream media focused on the business of poker, and government officials tasked with poker-based investigations.

While “RGP” posters may have gotten their biggest publicity boost from a trio of cheaters who long monopolized the forum with criticism of casinos and players they themselves had taken to the cleaners, other forums gained steam with less volatile fare. Some emerged as great strategy discussion sites, others served special interests of an online poker gaming site to build a customer base. Others have had more pointed appeal such as the Wednesday Poker Discussion Group which got its start in Atlantic City but later took up residence in the City of Las Vegas with a welcoming forum and land-based-events for its cultivated membership and guests from around the world.

And the initiative of a couple of other curious poker players interested in learning who was who among their forum brethren on poker forums, opened up pocketfives.com with a dogged determination to build a loyal client base not just with interesting topics for discussion, but with more knowledge as to identity of major contributors in the online poker forum world.

Next PPN Tips Off Readers on the Ins and Outs of Poker Forums

The value in a poker forum  lies in understanding its mission, its population, its most prolific speakers, its controls and the quality of a given contribution. The devil is in the details! Part 2 of this article addresses these issues in the next edition of PPN.

CAN A COURT TURN LAW UPSIDE DOWN ON POKER PLAYERS?

Poker
By Wendeen H. Eolis
Poker Player Newspaper
December 6, 2012

Poker players WILL appeal for rehearing in South Carolina’s Supreme Court guilty ruling against a low stakes un-raked home game in Mount Pleasant v. Chimento.

So you thought that online poker players had it tough when Full Tilt Poker bellied up! What do you think about risking your liberty if you play in a home game?

Even if poker is predominantly a game of skill.

Even if the law is determined to be unconstitutionally vague by sitting justices in a case.

Even if there is no rake taken.

Even if the game yields less than a kid’s piggy bank for its biggest winner… in South Carolina and maybe elsewhere you could be arrested and convicted!

Will USA poker players take this South Carolina case seriously – as a signal that online and brick and mortar poker players across the US had best to unite in outrage against this ruling.

PPN will report more as details emerge from the big huddle of gaming lawyers involved and studying the ongoing case and its potential impact on other jurists who might look to this case for guidance in a future proceedings elsewhere.

POKER SKILL ARGUMENT FALLS ON ITS FACE AGAIN

Poker
By Wendeen H. Eolis
Poker Player Newspaper
December 4, 2012

After two years of silence in the case of the Town of Mount Pleasant v. Chimento, the South Carolina Supreme Court finally reached a decision. On November 21, 2012, the Court found a group of poker players (who had convened regularly in an un-raked low stakes home-game) as violating South Carolina law.

S.C. Supreme Court Reaches Clever Ruling

The state’s highest court reinstated the trial court’s convictions of the players. The State’s intermediate Appellate Court had reversed the trial court — in one of the most notable cases of its kind for its favorable disposition toward poker as a game exempt from anti-gambling laws because of the predominance of skill applied.

The player-host in the instant case took no rake—only a modest contribution from the players to cover the cost for the festivities. The game occurred on a regular basis. The two-pronged nub of the problem seems to reside in “recruitment of players,” from Internet-based advertisements (promotion of gambling) and payment required for the privilege to play.

The more critical issue, however, is the cleverness of the South Carolina State Supreme Court in skirting its own factual conclusion that skill predominates over chance. Instead, it determines that South Carolina’s statute, which applies to any “house used for gaming” applies without regard to the level of skill that may be involved.

Judge Weinstein’s Decision in NY — Not So Peachy Either

This latter point is eerily similar to language that was little noticed in another recent case lauded by the poker community for the decision by federal Judge Jack Weinstein, which supports poker as a game of skill. In U.S. v DiCristina, a Staten Island game runner got off the hook. Judge Weinstein threw out the case against the defendant after reaching the conclusion he had not violated the federally based Illegal Gambling Business Act under which the case had been brought into federal court.

But, the jurist made abundantly clear, in his 100 plus page decision, which acknowledges erudite studies by academicians supporting poker as a game of skill, that the defendant would face a very different scenario had the case been brought in a state Court. According to several gaming lawyers, the penal code in the Empire State of New York has established that gambling may be determined under the law by the existence of a “material element of chance.”

Thus the preponderance of evidence, now readily available to law enforcement authorities and the judiciary, with respect to the merit of treating poker as a game predominantly based in skill (and therefore properly exempted under anti-gambling statutes), now seems to be treated as nearly irrelevant.

South Carolina seems to have adopted the provincial position of New York by treating poker as a gambling game without serious respect or consideration to its modern evolution as a bona fide professional endeavor.

Working Backwards

“In the South Carolina case, the Court pretty clearly revealed itself as more concerned with finding a means to get to the result it wanted, than to justice,” said one nationally recognized white collar specialist from an AmLaw 100 law firm. This has become clear from analyses that have recently proliferated throughout the brotherhood of gaming lawyers across the country.

The proceedings in the South Carolina Court system first discouraged, then teased, and ultimately disappointed lawyers who saw in the case an ideal opportunity to move the needle in favor of poker as a game of skill, that should be exempt from prosecution as a gambling crime. In reviewing the analysis made by one notable gaming expert (he is also a former judge), things shape up as follows:

A player’s home had become a “house used as a place of gaming.” But the Court does not explain why the player’s residence qualified as a “house used as a place of gaming.”

The opinion explicitly states that a friendly Friday night poker game in one’s residence would not be unlawful, but the Court then treats the game in question that was raided as a game in which “gambling was promoted“ with ads over the Internet to join the festivities.

The opinion also states that betting on any game – regardless of whether it is one of skill or chance – is unlawful gaming under South Carolina law. This is a substantial change from a long-standing principle of law.
Justice Pleicones, writing for the majority ruling on the final appeal within the state refused to consider Respondents’ vagueness challenge regarding the law, on the basis that “one whose conduct clearly falls within the statutory proscription does not have standing to raise a void for vagueness challenge.”

The argument that the Respondents did not have standing to challenge a statute as unconstitutionally vague because the Respondents “clearly fell within it” and therefore did not have standing was an argument never made or argued by the State. The S.C. Supreme Court violated its own rules (as one of the justice’s acknowledges in a dissenting opinion) by relying on this principle.

The Chief Justice concurred in the judgment, even though she agreed with the dissent that the statute used by the majority of the Court to reaffirm the original trial court’s decision (§16-19-40) is unconstitutionally vague, apparently because she also agreed with the majority position that the respondents lacked standing. She then challenges the General Assembly to fix it. The law firm of Goldstein and Russell has also weighed in, with similar analysis: “It’s plain that the Supreme Court does not disturb the factual conclusion that skill predominates over chance. It instead concludes that South Carolina’s statute, which applies to any ‘house used for gaming’ applies to any game, regardless of the level of skill involved.”  Founding partner Tom Goldstein, a widely known gaming law expert, has done substantial legal work for PokerStars and the Poker Players Alliance which was reportedly funded for its involvement in the South Carolina case by PokerStars.

Mike Sexton: The Right Man For the Job

The South Carolina decision gets less respect from the professional poker community. At trial, the poker world was represented by WPT commentator and Party Poker Ambassador Mike Sexton as an expert witness. His selection came with approval by Isai Scheinberg of PokerStars.

PokerStars pro and World Series of Poker Champion Greg Raymer as well as other high profile poker playing lawyers were considered for the gig, but Scheinberg followed the advice of lawyers involved in the case who saw Sexton as the ideal expert, notwithstanding his affiliation with another online poker site.

Indeed, by all accounts, Sexton provided, in clear language, facts obvious to any regular player; it doesn’t take long to separate the wheat from the chaff (regardless of gender) at the poker table. And, while the trial court found the defendants guilty, the decision was reversed at the Appellate Court before being reaffirmed at the Supreme Court of South Carolina. The case began with the player arrests in 2006; it took more than two years from the date the latest appeal was made to the S.C. Supreme Court to get to a publicly reported decision last month.

Black Friday Cases Affected by Delay in S.C. Decision?

The S.C. case was viewed as an important opportunity to forward the skill argument as part of the defense in the US Department of Justice’s indictment and companion forfeiture cases against online poker sites and their key executives in the April 15, 2011 “Black Friday” cases. The skill issue was argued in front of Judge Lewis Kaplan as part of the Chad Elie pre-trial proceedings prior to the time the South Carolina Supreme Court rendered its adverse decision. The notion that poker should be exempt from prosecution of anti-gambling statutes and regulations got no traction in his courtroom. Some lawyers queried for this article question whether Judge Kaplan would have looked to a favorable decision in S.C. state court for guidance.

Lawyers have carried on a lively dialog among themselves over the past month concerning the two recent cases in South Carolina and New York, respectively. The consensus is that both cases have moved the needle among jurists as to the need to modernize legislation regarding poker as a gambling game.

BLACK FRIDAY … KICKING THE BALL DOWN THE COURT

Poker
By Wendeen H. Eolis
Poker Player Newspaper
November 20, 2012

Early in the morning of July 28th the shot heard ’round the poker world was short, sweet, and accurate — but incomplete. A three way deal had been inked hours earlier by PokerStars (Stars), Full Tilt Poker (FTP), and the United States Department of Justice (DOJ). It allowed for a settlement of the Government’s civil charges against Stars and FTP. It also allowed for the acquisition of the FTP brand by Stars via the DOJ and a process by which FTP players could be united with monies locked deep inside their FTP player accounts for more than a year.

Until last week, there was no concrete hint of a very long lag time between the momentous news of a deal and the actual beginning of a process by which the DOJ would consider compensation to FTP”s victims in America. Following a November 13 meeting between representatives of the Poker Players Alliance and the DOJ’s Asset Forfeiture and Money Laundering Section, the PPA’s Executive Director, John Pappas, informed the poker world that FTP player refunds in America “are a long way away.”

DOJ’s Dispiriting Message

This latest news has significantly dampened the spirits of U.S. online players caught in the web of the bureaucracy. The DOJ’s previous public stance supporting repayment of all player fund balances at FTP, (as stated in a DOJ press release on April 20, last year), seems all but forgotten.

Lederer Fallout

Negative sentiment has deepened in recent days not only toward the DOJ but also toward former FTP honcho, Howard Lederer, who has been cooing about his high minded role and personal involvement in securing a satisfactory solution for all players. It is now clear that differing opinions inside the Justice Department have caused a logjam of indefinite duration, in addressing losses of FTP victims residing in America.

Meanwhile Lederer has been partying and playing in high stakes cash games and live tournament fare in Las Vegas amid mounting flak over his presence — while the wheels of justice churn on the Government’s civil case against him. And, his former customers’ monies continue to languish in locked out accounts. A petition to ban Lederer from live poker rooms in Las Vegas is now circulating widely on the Internet. The petition itself has created highly charged divided sentiment within the poker community.

Stars Rises

In contrast, Stars has made FTP player account balances fully available for withdrawal for Rest of the World (ROW) players who have legal access to Stars’ or FTP’s online cashier. FTP has quickly regained its former position as the second most popular online poker room, trailing behind Stars.

Player Refunds Have Been a Matter of Contention from the Beginning

Since the earliest discussions of an FTP bail out, the DOJ raised questions about paying out winnings to FTP’s former customers in America. FTP and various suitors have argued otherwise in negotiations over the months. “For a while it appeared as if the DOJ had softened its position according to more than one lawyer who has been involved. However, at no point has the DOJ made any promises as to its intentions with respect to processing FTP victim compensation claims — except to disclose plans to hire a 3rd party payment processor as administrator.”

To date, no processor has been publicly announced. During the course of negotiations for FTP, Stars is said to have offered,repeatedly, to administer the repayment process for all concerned, including U.S. players as well as ROW players. The ongoing radio silence by the DOJ as much as the delay in beginning to process claims has effectively put a  broad band of online players into a posture of “full tilt,” says one irate pro. He says, “I play, I win, and I pay my taxes. I committed no crime, and I still can’t get to first base when I call DOJ anonymously for an update.”

Since the announcement of the deal, The Poker Players Alliance (PPA) has attempted to take the bull by the horns — offering to “assist the DOJ” in developing an expeditious and responsive process. More pointedly, the PPA has pressed the Government to pay respectful attention to the matter.

PPA Meets with DOJ

This past week, the PPA made a bid to get some intelligence on the Government’s plans and timetable for a remission process. PPA has been represented in this matter by the boutique Washington D.C-based law firm of ZwillGen, PLLC which was founded by nationally recognized commercial and white collar litigator, Mark Zwillinger.

Reading between the lines of Pappas’ statement after meeting with the DOJ, it is quite clear that the DOJ mostly blew off their guests, albeit politely. Inside the Beltway lawyers say, “The DOJ has little interest in outsiders attempting to advise or guide them in these types of matters, preferring to operate exclusively on their own time tables.

Attorney Zwillinger, who has previously done legal work on behalf of Stars, is no stranger to the folks at the DOJ. He was once one of them. Before founding his boutique firm in early 2010, Zwillinger was among the most highly respected partners at the national law firm of Sonenschein  Nath, & Rosenthal, now operating as an international law firm under the name of SNR Denton. (Its further expansion will result in another name change to Dentons next year).

While at SNR, Zwillinger provided one of the legal opinion letters that was obtained by Stars.It has since been referenced by FTP and Stars’ payment processor Chad Elie who has railed against lawyer opinions he apparently believed made him safe from prosecution. Elie will soon go to jail. Zwillinger’s legal opinion raised significant questions as to the Government’s authority to prosecute online poker under current federal statutes while acknowledging the absence of dispositive case law. In discussing the legal opinions cited by the Government in papers related to Elie’s case, one gaming law expert observed, “Clients sometimes hear only what they want.”

Be all of that as it may, lawyers across the country queried about the Zwillinger letter to the DOJ have described it as cogent and detailed – yet succinct in its advocacy on behalf of the PPA and its million plus constituents.  Some Lawyers suggest, however, that the letter might have been given short shrift by the DOJ, noting that there had been a lot of discussion and debate about player refunds and victim compensation during the many months of negotiations with FTP and myriad suitors that had entered the fray.

It is worth noting here that in the previously anticipated Groupe Bernard Tapie deal to acquire FTP, the DOJ had pressed the company to make all players whole within 90 days. The Tapie deal reportedly cratered over this requirement.

DOJ‘s Agenda Remains Uncertain

In negotiations for FTP, “Stars reportedly made the case to undertake the repayment process worldwide without passing along any administrative cost to FTP victims” — ultimately, to no avail. One lawyer chalked up the DOJ’s intransigence as nothing more than an effort to avoid allowing Stars to get too many kudos — especially given the DOJ’s pending criminal case against Stars’ founder Isai Scheinberg. He is arguably the biggest fish in the pool of defendants in case US v. Scheinberg. Others suggested the DOJ might be of a mind to maintain the flexibiity to look closely at some of the player accounts

When the Stars’ deal to pick up FTP was set, a highly placed impeccable source stated that FTP players would be able to collect their funds within 90 days from the date the deal was consummated. In retrospect, it is now clear the words were carefully parsed so as to limit the statement to FTP customers going forward while the fate of those who could no longer be FTP customers would hang in the balance.

The DOJ has demurred ever since, as if it might have an epiphany while practicing the ostrich approach.

FULL TILT POKER: REORGANIZING THE LEDERER FILES!

Poker
By Wendeen H. Eolis
Poker Player Newspaper
October 9, 2012

After sitting in the hot seat during two separate interviews with poker media last month, Howard Lederer, a former director and the best known voice of Full Tilt Poker (FTP) had enough.

Lederer had enjoyed the stature of Big Man on Campus in the poker world against the backdrop of FTP’s success, but once the Company was brought to its knees by the United States Department of Justice, he was tarred by the same brush applied to Ray Bitar, the former CEO of FTP with angry accusations.

Lederer received a hard-nosed reception in some quarters as he sought to rise above a personal image in tatters with a gutsy gambit: selective interviews over the worldwide Internet. By his own reported admissions, they were harder than he expected – for him and his family. But the man who has been known over the years, variously, as Howard, Howie, Bubba, Bub, and the Professor continues to hold on to more than a fair share of loyalists. And, they are firmly behind the effort to rekindle his image as an honest, stand-up guy whose foremost concern since the events of Black Friday has been repayment of FTP player funds to customers. So far their effort has moved forward on a rocky road.

Lederer Flirts But Fails to Reach Finish Line

After taking to the Internet, first in a filmed and edited seven-part interview with Matt Parvis of Poker News, and then in an uncut 3 ½  hour interview with the tag team duo, Adam Schwartz and Mike Johnson of TwoPlusTwo Pokercast, Lederer headed home, scrapping  plans for a final performance with an avid blogger who specializes in reporting on Black Friday affairs.

The spurned blogger, known as Diamond Flush, has since said her interview would have been different, suggesting she would have made mincemeat of Lederer’s “distortions of the truth” and “misrepresentations” if given the opportunity go toe to toe with him.

Diamond Flush also expressed her disappointment in the “seven out” roll, thrown her way by Lederer, with promises of upcoming juicy commentary on her website. She has followed up with further reports, but the sizzle has yet to materialize.

It is not the first time Diamond Flush, or any other reporter has missed the “big get,” or the flashiest scoop, but second chances seem endless in the Black Friday saga.

Spotlight on Online Poker Media

Before launching into a post mortem on the Lederer interviews by lawyers who have reviewed relevant legal documents and have read between the lines of the interview transcripts, it is only right to acknowledge extra credit where due.

Parvis gets high praise for jumping at the chance and meeting the challenge of getting Lederer on camera for the most detailed report of the collapse of FTP to date, before Lederer had any second thoughts about becoming a “no show.”

Accolades also go to Schwartz and Johnson for snapping up the opportunity for continued dialog and then keeping Lederer’s feet to the fire enough to disrupt his telling his story, strictly in his own choreographed terms.

Additional plaudits are in order for Diamond Flush, the pen named blogger who prefers not to disclose her identity in the poker world. Her real name is known in courtrooms where she has attended FTP proceedings during her year-long efforts to nail and splice facts meticulously for the online poker community. She is widely respected in that community as one of the most trustworthy sources for Black Friday-related news.

Lawyers Weigh In — Insightfully

Included in the mix of attorneys consulted for this article are corporate and white collar litigators from major law firms, senior partners at additional firms with significant gaming practices, lawyers who know Lederer personally, and other members of the Bar with a passion for poker.

These lawyers concur that it is hard to serve up a more revealing story of Lederer’s part in the FTP collapse than the one that he has presented himself through in his declarations, equivocations, memory lapses, and omissions of fact—during his interviews.

But they take a stab at it, making points that might otherwise elude most of the poker world.

Early Reactions

Lederer’s interview performances initially left many lawyers shaking their collective heads – wondering why on earth he took the two interviews at this point in time. And they cogitated for a bit on what really might have brought Lederer to his senses, resulting in his decision to drop a third one. The lawyers were divided on the reasons for Lederer’s about face, on a third event, but uniformly in accord with his rethink, despite harsh criticism that was lodged against him for welching on a deal.

Lawyers say his biggest weakness in his first interview was fudged answers, in the second, the interviewing team started to peel the onion more efficiently and believed the final planned show down would have surely inured to the benefit of the interviewer, at least by providing a powerful positional advantage.

Many lawyers queried right after FTP settled its civil case with the DOJ suggested that Lederer was “out of the woods” with the Government, except for money troubles.

Since Lederer’s personal online interviews, however, a lawyer who has known him and the FTP cases over many years, solidifies the consensus among attorneys consulted for this article, expressing concern that the interviews were perilous, for a multitude of reasons:

1. By deciding to do interviews on his own without counsel at his side, he has gambled too much. In lawyer speak, it is said a lawyer who represents himself has a fool for a client. They say a lay person who does so is at even greater risk of causing himself trouble.

2. By allowing himself to do the equivalent of two very long unsupervised depositions, he fell into the inevitable trap of providing substantive contradictions and misstatements without possible rehabilitation through counsel.

3. By presenting himself as evasive rather than as mindful of that his circumstances dictate certain limitations, he raised rather than resolved many credibility questions.

4. By his periodic rifle shots at former colleagues at the site, he has pushed them to become his harshest critics.

5. By taking center stage to tell his story, he has invited the Government to scrutinize his conduct and his actions, anew; whatever he wanted the Government to know would be better relayed through his counsel.

6. By delaying a full on apology until late in his interviews, he may have lost many listeners who might otherwise have remained neutral until hearing him out.

Other Observers Chime In

Lederer claimed that he was prompted to speak out now, because the time was right. Nevertheless, even some Lederer’s supporters acknowledge that his interviews were dicey bets with the court of public opinion and maybe with the Government, too, unless he knew he was in the clear, as to a possible indictment arising from his involvement with FTP. He did the first interview two days before the Government filed an amended civil complaint.

Lederer also stated that his customers deserved the facts, but the most frequent comment among players who have talked to Poker Player Newspaper is that countless times he fell into memory lapses, and misleading responses.

Be all of that as it may, Lederer sympathizers come back to basics as far as they are concerned; they believe Lederer to be innocent of any intent of wrongdoing and that he did the best he could do in an unimaginably tough situation. Now they are focused on doing all possible to pave the way for his peaceful return to a livelihood in poker rooms.

A cross section of poker players that have talked with PPN, since the interviews, generally agree that while Lederer’s meetings with the press produced no home for him in the online poker community, he scored far better than vociferous online critics might think.

Lawyers Take on the Lederer Files

In a more studied response, the lawyers consulted for this article who have reviewed the taped interviews or transcripts say Lederer’s responses sometimes raised more questions than they answered:

1. Lederer suggested the operating agreement tied his hands on delving into the finances of FTP. The lawyers did not interpret the operating agreement in this way.

2. Lederer explained his role as a Board member as merely an advisor; lawyers say otherwise, pointing out that he was a member of a corporate board with responsibility and authority to oversee member welfare and security of player deposits.

3. Lederer acknowledged understanding that player funds were never held in player trust accounts but responded as if “ring-fenced funds” were foreign words and as if no such option was known to FTP during a period in which he was a manager and director.

4. Lederer commented that he was not a key license holder and never spoke to the Alderney regulators, as if the regulators’ responsibilities (which were not discharged effectively) exonerated him of any burden as a board member to assure fiscal integrity of his company.

5. Lederer mentioned, the Company moved to Dublin with lofty plans to go public. Still, he dismissed the idea of having outside accountants, though certified financials would doubtlessly be required to complete such a transaction and member inquiries about the fiscal integrity of the CEO dictted a need for an independent accounting arm.

The list goes on!

Lederer: Road to Image Repair

One lawyer’s comments synthesized the combined views of lawyers and lay persons queried: “He was a professional gambler who winged it as a businessman.” They concur that he got ahead largely ignorant of sound business principles. And they leaned strongly toward a conclusion that at the end of the day it was Lederer’s lack of business savvy — not an intention to defraud nor involvement in wrongdoing as far as he knew —  that left his customers behind the eight ball. But they insist his decision to retain the FTP distributions he received “in error” (even if advised by counsel of the right to do so) will likely impede his efforts to obtain redemption among his current critics, anytime soon.

 

LEDERER: HAS HE COME TO HIS SENSES TOO LATE?

Poker
By Wendeen H. Eolis
Poker Player Newspaper
October 1, 2012

Until Howard Lederer, former president and member of the Board of Directors of Full Tilt Poker (FTP) took interviews at Pokernews.com and twoplustwo.com, earlier this month, and then backed out of a third one planned with poker writer diamond flush, he avoided penetrating scrutiny by the media.

Woe is him! After hours upon hours of interviews,  Lederer has provided a heyday for poker media and possibly expanded peril for himself in his dealings with the Government, say several gaming lawyers.

Reporters are now more able than ever to dissect his every word and make mincemeat of his various contradictions, omissions, and vague recollections in these interviews.  And Lederer’s claim of approval by FTP counsel of each of the public statements produced by Full Tilt after April 7th, 21st and/or later,  has various lawyers  around the country raising their eyebrows and predicting that this statement will come back to haunt him.

Lederer has said that April 21, 2011 was the worst day of his life—he says he learned the true disastrous condition of the company, that day. Several lawyers who previously suggested he was well out of the woods with the DOJ,—except for money troubles, have revised their positions, suggesting that the DOJ will likely take as hard a look at his interviews as will his most angry critics in the poker world.

PPN will peel the onion with a commitment to fairness and accuracy, relying in large measure on Lederer’s own assertions. Did Lederer finally realize that no interviews might have been a better decision than the ones he served up,and that at this point further interviews could become a bigger nightmare?

HOWARD LEDERER … CURRENT ASPIRATION

Poker
By Wendeen H. Eolis
Poker Player Newspaper
September 25, 2012

In the weeks before the United States Department of Justice swooped in to crack down on online poker with deadening force, by all outward appearances, Full Tilt Poker was at the top of its game. New offerings were popping up continuously, and Howard Lederer’s voice was a big part of the FTP picture —even though he had long since given up his role in day- to-day operations.

 Ray Bitar, the CEO of FTP knew full well the increasingly perilous state of their operations, according to the Government, and several knowledgeable lawyers insist the dye was cast for an indictment against him and he could and should have expected such a consequence from his actions.

Meanwhile the extent of Howard Lederer’s knowledge, involvement and responsibility for the collapse of FTP has been the subject of fierce debate since Black Friday. Last week, Lederer came forward in a seven hour interview; at the end the day the combination of his declarations, fuzzy recollections, and obvious omissions of facts shed more light on the unraveling of the Company than any prior media report.

Cyprus Casino Plans FTP Tournament for December 2011.

In January 2011, Michael Paltekci, President of the Cyprus-based Merit Casino, was introduced to me by a European client at the Grand Casino in Deauville; site of an EPT event in progress. We were to meet about a possible partnering arrangement between the casino and my client, for an upcoming event to be produced by FTP at Paltekci’s gambling emporium.

It became clear, however, in a matter of minutes; Paltekci was in Deauville on a busman’s holiday and no business was going to be transacted between us for the time being. We made a seamless transition to small talk about FTP and the Normandy coast line before he suddenly proposed a little “heads-up” Chinese poker, for later that evening.

Paltekci had already mentioned his California roots and had referred to the FTP crowd as his buddies and Ray Bitar as his longtime good friend. Was I about to be hustled if I took him up on his Chinese poker offer? I paused to inquire (lightheartedly)  if he had taken Chinese poker lessons from Howard Lederer. He confirmed that he knew Howard, but seemed unaware Lederer had made a boatload of money in Chinese poker his first year in Las Vegas, after moving there from New York.

Troubled Waters Early On

Lederer’s personal biography has been largely forgotten in the poker world since his sister Katy’s memoir (some years ago), which focused on their dysfunctional, but fascinating, family. The memoir was written well before Lederer reportedly threw a party to celebrate reaching the hundred million mark.

Lederer’s move to Las Vegas followed by repeated clashes with law enforcement authorities in New York over his gambling activities. Too tight handcuff experiences, and too-long waits for arraignments that were supposed to be speedy, presumably had become more than annoying. He pulled up stakes and moved on.

Once settled in Nevada, he found himself under investigation yet again by law enforcement authorities; this time by Federal agents, who drilled safe deposit boxes at Bellagio. Ultimately, the matter was resolved, and the slate was wiped clean.

Lederer Clears His Path for Success

Once out of these thorny  patches, Lederer’s  stars all seemed to be aligned, with success at poker cash tables, mounting tournament titles, top billing as the poker “Professor”, and connections that ultimately led to a heady position and substantial  wealth via FTP.

Michael Paltekci knew Ledererer as a man of enviable success (with plenty of cash to throw around) Until I told him, however, he did not know of Lederer’s  dinner with President Obama. Along with some thirty to forty other like-minded souls, including Phil Ivey, the Professor coughed up $30,000 for a fundraiser, obtaining the privilege to hobnob with The Man at the home of George Maloof in Las Vegas. The president was said to have chatted up Lederer and Ivey about playing a game of poker with him at the White House, while the DOJ was plotting its timetable to hammer FTP and its Board.

The Chinese poker proposition raised by Paltekci early on in our tete a tete never came to pass. Instead, our continuing conversation turned to FTP’s beginnings and the incredible rise of good fortune for FTP members—even under the cloud of UIGEA. We gabbed until it was time to pack for our respective departures from Deauville.

Howard Lederer’s description of the birth of FTP as rendered in his recent interview with Matt Parvis of PokerNews meshed with Paltekci’s tale about the founding of FTP, but the casino executive’s rendition was far more revealing . Lederer’s seven-part video interview, which was titled, The Lederer Files,  scratched the surface of certain key facts and events and was vague about some matters that seemed,  unfathomable for him to forget, especially since several of his friends have referred to Howard’s view of FTP as “his baby.”

At times throughout the interview, Lederer’s  penchant for partial answers, along with his failed memory and refusal to speculate,  except when he wished to do otherwise , were more notable than his disclosures at some junctures of the interview, which was  arguably the biggest story in the poker world, since the DOJ’s crackdown on online poker in April, 2011.

That said, The Lederer Files  are still, by far the most detailed single report of the Full Tilt Poker debacle, and  Matt Parvis should be congratulated for his yeomen service to the poker community.

Let’s Begin at the Beginning of Full Tilt

Lederer discusses the early days of FTP in Part 1, which sets the tone for all that is to come. He tells us that he met Chris Ferguson in 1999 or 2000. In my personal travel diary, I noted my visit with Paltekci as follows:  “Bitar was managing a trading office, Chris did some trading. Chris got the idea for FTP after winning the 2000 World Series of Poker and not finding an endorsement deal with an online site (Party Poker?) to his liking. He basically decided he should figure out the best software and do it himself with Ray as a money guy. They rounded up some investors and then saw a homerun when the Professor bought the idea.”

Other early FTP members have confirmed they hit the ground running —determined to build software better than anyone else on the online poker map!  With a marketing plan in place to publicize a pro player –owned site they were ready to roll in 2004.

At the same time, except for Bitar, they were gamblers and small-time entrepreneurs, with neither conventional business experience, nor the wisdom that comes from maturity. And by all accounts, Bitar was never a manager of a full blown business until he waded in over his head at FTP.

Lederer’s Decision to Break Silence

Early in his recent interview, Lederer explains his decision to do the Lederer Files; the deal was done and now was the time. He offered little other elaboration until midway through the interview, where he pokes at poker pro Matt Glantz’ criticism of his prior 15 month public silence. Lederer says, somberly, “I  owed it to customers to remain silent.”

These explanations do not hang uniformly well with his audience—former FTP members, other players and poker business executives that have been deeply affected by the mismanagement of the former FTP regime.

The most widespread view is that the raison d’etre for Lederer to mount the public stage at this time is to obtain redemption in the poker world after a failure by friends to make sufficient inroads on his behalf.

Lederer Wants Back In

Months before the 2012 World Series of Poker, there were rumors Lederer wanted to return as a poker pro and that he anticipated doing so—soon. His friends were bending the collective ears of movers and shakers in the community as well as those of lesser known players and reporters in efforts to rehabilitate his shattered image. Lederer was said to be depressed, shocked, and befuddled by the dizzying events, but wholly innocent of wrongdoing, and now only focused on making things right for  FTP customers.

The pleas fell mostly on deaf ears. There were snippets of the anecdotes he has since told in the Lederer Files interviews. They portrayed FTP members who criticized him and the Board as interfering with their efforts, as being unhelpful before or after things got tough. There were also the reminders to all who knew him for many years of his impeccable reputation as an honorable gambler.

Lederer’s Reputaion

Frankly, the reminders were hardly necessary here.  As a longtime acquaintance, I never had any personal experience that would have led me to believe that Lederer intended to defraud his FTP customers and I have never seen a shred of concrete evidence to support such a theory.  However, Company’s active decision to obtain its license from Alderney with the option to co-mingle player funds yields sharp sharp criticism of the entire Board.  More significantly, at no point in his interview did Lederer take the lead to explain why he never considered returning (to the Company) any of the 43 million dollars of distributions he received, putting aside the Government’s contentions   they should not be left in his hands. It was unfortunate, but inevitable that Lederer’s interviewer would miss some critical point with so much to cover, but for many, this is the burning question that threatens his future welcome in any card room patronized by former FTP customers in the United States.

Since Lederer’s move from New York, more than 20 years ago, I have had only occasional contact with him, mostly at big parties to which I used to be invited by him and his second wife, Susan (no longer Suzie to me).

According to the Government’s updated complaint, The Lederers share substantial assets, thus Susan may stand to lose as much as her husband in the Government’s continuing prosecution of its civil forfeiture action against him.

Lederer, Ferguson Furst—NOT INDICTED 

It bears mentioning here —since Fox Business as well as various poker media have mistakenly reported in the past 10 days on the status of the cases against Lederer , Chris Ferguson and Rafe Furst that none of these three former directors have been indicted.

Moreover, interviews, albeit not for attribution, with lawyers very familiar with the FTP directors’ cases, confirm that they perceive little exposure to criminal prosecution in connection with FTP matters for Lederer, Ferguson or Furst.

A Personal Disclosure

Now, I make a personal disclosure. This past summer, Howard Lederer’s loyal wife lashed out in an email addressed to me (but sent to others by her as blind or forwarded copies). Susan admonished me for having covered Full Tilt Poker matters, as if I had committed libel. Her complaint was out of line, her accusations, were ill-informed and her subsequent indiscretion was plainly wrong. But her husband is lucky to have fervent loyalty emanating from his home.

Why Does Lederer Speak Now

For several months—beginning before the last World Series of Poker, Lederer was known to have approached friends about his returning to the card room to make money. He obviously sees the need to reduce hostility toward him before he arrives at the tables. This appears to be the primary reason for his coming onto a public stage at this time.

Perhaps more importantly, it seems that his lawyers think, from a legal point of view, he has a pretty good story to tell—or you could be sure he would be keeping quiet some more.

That said, among the broad spectrum of members of the poker community queried for this article,  Lederer is not convincing in his stated reasons for speaking out now. Former FTP customers, other players, poker business executives, reporters, and gaming lawyers not involved in his current legal matter who were consulted for this article, by and large, rejected his short-shrift explanation, declaring the deal is done, and therefore the time is now.

Moreover, they generally see the frequent counterpoint between his settling scores with other FTP members and courting the poker world for redemption–as if he was less than responsible for his own predicament—as  jarring.

One More Thing

In the manner of Steve Jobs, Lederer made his most important pronouncement last. His straightforward apology for the suffering of FTP customers, rendered in the final minute and a half of the interview, undoubtedly resonated as his most mellifluous pitch, for those who were still listening to him.

 

JUDGE WEINSTEIN SAYS…

Poker
By Wendeen H. Eolis
Poker Player Newspaper
September 11, 2012

Since the United States Department of Justice’s (DOJ), announcement revising its position on the 1961 Wire Act, by exempting online poker from federal prosecution thereunder, the gaming industry nationwide has begun to see online poker and other online casino games as the coming of a new cash cow in America.

But, maybe not soon enough, argue some Wall Street analysts that have recently reviewed the financial outlook for Caesars Entertainment Corporation, owner of the fabled World Series of Poker.
Across the country, casino operators, state politicians seeking a remedy to address financial crises within their state budgets, as well as sympathizers to civil libertarian poker players are adding up the potential dollars to be found through licensed and regulated intrastate online poker–frustrated by the delays in reaching the finish line.

Political campaign planks, competing federal and state interests, and variable positions from state to state and within some states are doing as much to bog down progress in legalizing online poker in America as the revised interpretation of the Wire Act seems to do for promoting it.
Additionally, tribal nations regulated under the Indian Gaming Act and local politics across the country contribute to the complexities of legalizing online poker seamlessly throughout the United States.

 The political scene in Washington is in enough disarray to seriously imperil current efforts to pass federal legislation favorable to poker. A federal legislative bill to license, regulate and tax online poker seems to be languishing in the joined hip pockets of Senator Harry Reid (D-Nevada) and John Kyl (R-AZ), while US Rep. Joe Barton’s pro-poker bill is thus far eluding full scale support of its own.

So, it is no wonder that a few individual states are raising the stakes in a bid to outplay Congress and recalcitrant bureaucrats elsewhere and pick up massive tax dollars with intrastate online betting legislation.

Moving legislation to legitimatize gambling anywhere in the United States has never been a walk in the park. But the process of doing so at the federal level since the Unlawful Internet Gambling Enforcement Act of 2006 has been impossible to date.
Even the states that have their ducks in a row to push forward online gaming legislation, are facing tedious and thorny issues created by competing interests, economic differences, and variable political agendas within their states.

Suffice to say, during the past several years, the poker world has been reminded repeatedly of novelist Jean-Baptiste Alfonse Karr’s famously translated words, “The more things change, the more they remain the same”—despite yearly reprises of legislative efforts and court cases pleading to treat poker as a game of skill, and therefore exempt from statutes that prosecute illegal gambling–until a recent ruling in the Eastern District Court of New York.

This past August, Federal Judge Jack Weinstein ruled in favor of a Staten Island, New York poker game runner, declaring poker as a game of skill, and therefore not gambling under a federal statute known as the Illegal Gambling Business Act—which was the basis of prosecution.

The judge ruled that poker is a game predominated by skill over chance. His reasoning resonated with every professional poker player worth his salt, as well as poker-related businesses across the country, not to mention the defendant in the criminal case US v DiCristina. Lawrence DiCristina’s New York City-based poker game led to the federal charges alleging violation of the Illegal Gambling Business Act.

 The DiCristina case, heard by Judge Weinstein, yielded a decision that not only exonerated him, but may also raise the stakes on future prosecutions of poker as a conventional gambling game. How much so, is a matter of increasing debate, especially in the State of New York.

To reach his decision, Weinstein relied significantly upon the research and pre-trial testimony provided by the defendant’s expert witness, Randall D. Heeb, an economist, statistician, and competitive poker player. Ultimately, Weinstein was persuaded that skill distinguishes the boys from the men (and the girls from the women) in this complicated game of people that is played with cards, math, and judgment calls.
Backed by his extensive research, Mr. Heeb asserts that net winners comprise only 10 to 20 percent of the no limit poker-playing population, noting that this conclusion can be definitively established over just a few sessions. Lesser skilled players lose!

In Weinstein’s one hundred twenty page opinion giving the heave-ho to the prosecutors of the DiCristina case, he referenced the significance of Heeb‘s research, which stemmed from the review of more than 415 million hands of poker played at the online poker site, PokerStars. The Court concluded Heeb’s research was reliable, and also noted Heeb’s acknowledgement of several other research studies as compatible with his independent position. (See my PPN article “Who says poker is a Game of Skill?” Feb 28, 2012 for a listing of other significant research that reached the same conclusion as Heeb’s most thorough examination).

 Following the Weinstein decision, lawyers for Howard Lederer, a former director of Full Tilt Poker, raised with the Court the impact of the Weinstein decision on Lederer’s ongoing Black Friday-based civil forfeiture case which is pending before another Federal District Court Judge–Leonard B. Sand.

 No sooner than the matter was brought to the attention of Judge Sand, the DOJ responded to the Court by rejecting the Lederer request for a status conference on his case, insisting that Judge Sand is not bound by the Weinstein ruling on the Illegal Gambling Business Act. Lederer’s fellow directors, as of April 15th, followed Lederer’s lead with the same request.

 More ominous than the Government’s rejection of Lederer’s position was the immediate warning issued by US Attorney for the Southern District of New York, Preet Bharara, that the Government intended to file a second amended complaint by Sept 10 to include additional statutory grounds for forfeiture and other relief. The US Attorney made good on his word with a second amended complaint Monday, that revealed more about Lederer’s alleged use of  misguided funds to underwrite  his taste for cars and other luxuries.

 Nowhere in the United States are the complexities of gambling more visible than in the great Empire State of New York. The Department of Justice found its way into New York to prosecute online poker in America because New York was and is a uniquely hospitable state to make the challenge, according to gaming lawyers across the board.

 The promotion of gambling is prohibited under N.Y. Penal Law Section 225.00, as noted in the Weinstein decision. As further discussed in the decision, poker is classified as gambling as a matter of law in New York State, without regard to whether or not it is a game predominated by skill. The litmus test in this state that defines poker as gambling is based upon its classification as a game in which chance is a material element according to several gaming lawyers who note that this factor was not raised in the DiCristina case.

 Following the Weinstein decision, celebrations were the order of the day across the country and perhaps most hopefully among poker game runners and aspiring poker club operators especially in New York.
But, Bill Gantz, a senior partner in the gaming space at the national law firm of SNR Denton, has put a pin in the swelling balloon of enthusiasm. A strong proponent of legalized gaming, and a supporter of the legal position that poker is a game of skill, Gantz nevertheless makes clear that, in his opinion, the Weinstein decision “is not a game changer” at this time, with respect to government’s enforcement activities.

 “Underground poker venues in New York remain in great peril of prosecution, no matter how low key,” says another defense lawyer who has handled sports betting and poker gambling cases for decades around the city. He predicts that a new proliferation of poker clubs in New York City would result in a backlash; another spate of poker raids in New York, like those in 2000, and again a few short years later by the same City law enforcement agencies that have previously prosecuted underground poker clubs. By 2006, after the passage of UIGEA, New York poker aficionados, for the most part, resigned themselves to a two hour drive up or down the coast to licensed casinos for their poker fix.

 Since the 70’s New York State has flirted seriously with efforts to legalize gambling by state legislation that would allow for licensed, taxed, and regulated casinos—at least in economically depressed areas of the state. New York City real estate and hotel interests have generally opposed such proposals, and once outside of New York City, the state has traditionally distinguished itself as one of the most parochial states in the country with regard to its citizens’ views on gambling.

 In recent months, New York Governor Andrew Cuomo has sent multiple signals pressing for renewed consideration citing the prospect of substantial job opportunities as well as tax revenues among the economic benefits. Legislation to allow regulated gambling and that would include modernizing the notion of poker as a game of skill appears to be on the horizon here, say my legislator friends and government officials in Albany—only off the record.

 Hold the champagne for now!