even with uigea firmly in place it wouldnt be gg online poker. If sportsbooks can survive, so can poker sites. Just will be less fishy.

I still have high hopes for franks bill.

This case does not affect the issue of the legality of online poker under US laws.

but thanks for being 1000X more proactive and productive than PPA and attacking where it counts rather than letter writing to scumbags who could care less

your legislation posts are almost as useless and incoherent as your politics posts. Gubment bad! amirite?

Appellate court hearings are, to borrow from Thomas Hobbes, "nasty, brutish & short."

Today's hearing with the US 3rd Circuit was the epitome of that. We were second on the docket, after a suit involving a zoning dispute for a yeshiva school in a New Jersey town. At one point, Judge Jordan asked one of the attorneys, "why are you even here?" Judges Slovitar and Ambro were equally rough. And that was over a religious school.

Once we were up, the judges wasted no time preempting our attorneys' prepared presentation, and pushed the Q&A aggressively in the direction they wanted to go.

First, Ambro wanted to know the status of the current Frank bill. Our attorney Stephen Saltzburg told the court that there has been no debate on the bill, and it has not been part of the agenda on the Hill, given the other more pressing issues facing Frank's committee and the Congress.

Next, Jordan and Slovitar pressed on the issue of "where the bet is placed". I was not happy to hear this, since this is hardly settled law, and good arguments can be made for each side. The problem is that usually, the argument that is most expedient for a given situation is the one that is applied, so there is no consistency. We've avoided this in the past in Kentucky.

The judges raised this when asking about the "vagueness" of UIGEA. Jordan asked Saltzburg if he agreed with the government's assertion that a law must be vague in all instances in order to be voided (he answered "no"). Jordan then went on to say, paraphrasing, if the federal statute relies on state law regarding Internet gambling, and the state "where the bet takes place" has laws to make Internet gambling illegal, then it is "clearly" illegal under the statute, and thus the opposite of vague.

At this point, I was glad that so much of our briefing documents had highlighted the "vagueness" claim we've actually made - that Congress refused to define what "unlawful Internet gambling" was; that banks and credit card companies couldn't determine what was legal or illegal; that as a result, banks and credit card companies blocked transactions for "exempt" online gambling, like state lotteries and horse racing, referred to as "over-blocking".

Much of what factors into decisions never makes it to oral arguments, but knowing that doesn't help with the anxiety.

Bernstein began to raise the 1st amendment and privacy claims, but the judges turned him instead toward the question of third-party standing on the behalf of players. Bernstein asserted that we did have that right, and that iMEGA itself had members that were individual players, not operators, but this did not seem to come to any resolution, since precedent with the 3rd circuit would permit this kind of third-party standing for individuals who cannot represent themselves. The debate would be whether or not players could stand without self-incrimination.

When Nicholas Bagley stood to represent the government, Judge Slovitar was rather rude when she said to him, "You look like a law student." Now, granted the guy is on the other side, and yes he was young, but I mention this to give a sense of how brutal the panel was. The guy is an appellate attorney for the DoJ...he may have looked a little too Gen Y, but panel got a good laugh out of him.

Any way, Ambro jumped right in and asked Bagley why the government was wasting the court's time arguing that iMEGA did not preserve a "void for vagueness" argument at the trial level, when in fact it was introduce and was preserved in Judge Cooper's decision (under the caption "Void for Vagueness"). Bagley tried to argue that iMEGA didn't spend sufficient time making the case, but Ambro again pointed out that it was preserved by the trial court and met the standard for the circuit, so why challenge it? When Bagley didn't readily answer, Ambro (parapharsing) said, "you were just taking a shot."

Since the government spent a considerable portion of its briefings on this topic, it was interesting to hear Ambro jump on it so aggressively.

The judges then pressed Bagley on the thrid-party standing question, which he of course said iMEGA did not have, yet when Ambro questioned him on the relevant case law that established the precedent in the 3rd circuit, Bagley indicated he was not familiar with it, and Ambro took time to explain it to him.

Slovitar then asked him, "Do you have anything else?" He said no, and Ambro told him to sit down. I couldn't tell if they were being dismissive or if they thought the government had such an outstanding argument that it needed no additional scrutiny.

Saltzburg spend his two minutes of rebuttal time noting that a player could not represent himself in the court without incriminating himself, and that while UIGEA contained no criminal sanction for individual players, it did have civil penalties. Plus, the individual - by the panel's reasoning - would have to be in a state with laws against Internet gambling, so they would open themselves to self-incrimination vis-a-vis the state laws.

Red light goes on, thank you very much, next case.

Nasty, brutish and short.

That was a tough panel. They bore down on us, and they went in a direction that, given the vagueness challenge we were making, seemed odd ("where does the bet take place?"). Since the statute targets banks and credit card companies, it was unusual that there were NO questions about them.

Saltzburg time and again noted for the court that while the statute prohibited the banks and credit card companies from taking "unlawful Internet gambling" transactions, the statute did not make the underlying behavior - individuals gambling on the Internet - illegal. So, why the questions about "where does the bet take place?" It was odd.

I'll admit: it was hard to sit there and not say anything. It's hard to sit back and watch the judges push things in a direction that was not part of either the government's or our arguments. But that's the process in an appellate hearing: go in with a plan, have the plan go out the window with the first question from the panel, get put through a meat grinder, period.

So, now we wait. At least a few weeks, if not a few months, before we get a decision.

Joe, your summation was somewhat different than the linked articles. The problem is that the judges seemed to be searching for a rationale to uphold the law. Thus, the focus on jurisdiction and a mythical state law prohibiting all online gambling which only one state actually has passed.

However, judges' questions during oral argument are not always indicative of the actual ruling. IMO, the longer the wait, the slightly better for our side.

Still it would not surprise me to see the court rule against the vagueness argument, rule that the iMEGA has standing to argue privacy of individual and remand the case back to the trial court for a hearing on the privacy issue.

JPFisher55,

I agree that the panel may be first inclined to find a rationale for upholding the law. I'm sure no appellate court wantonly undoes an act of Congress without a clearing a sufficient hurdle.

In their questioning, they spent no time on the fact that Congress would not define "unlawful Internet gambling", hanging instead on UIGEA's reliance on state law to determine legality (though, as you pointed out, only one state has).

If, as the panel put it, our argument may be with the states, not with this law, then what is the need of this law? Why has the Federal government intruded on the states' prerogative over gambling? Following their line, it brings us back to the 10th amendment argument we raised at the trial level, but that Cooper (in her decision) said that we did not have the standing to raise b/c we are a non-state actor.

Tough panel.

Joe@iMEGA

joe if the uigea is upheld than what can we expect in terms of our ability to play/cashout/deposit...

Edit: if its something you wouldn't want to post publicly feel free to PM me

I'd like to know the same, if you cant post it publicly would you be able to pm the answer to this to me as well? thanks bud

this ftw

Will anything actually change when December rolls around?

This ^^^^ also but i am also more concerned if anything will happen in the next month or two as a result of this ruling.

There is no ruling yet, and afaik if we failed to have anything changed then things would just stay the same

probably but I would like to know if joe thinks differently.

I don't claim to understand the paradoxical workings of the law and neither should anyone else tbh...

it always seems as if something that isn't logical happens and i'd like to know if we are in danger of something like that.

Id be pretty shocked if Joe could tell you anything about what happens if the law gets upheld (not that this is the final arbiter) beyond what he has already surmised about the future of online poker in his initial "ask Joe" thread (which was a very comprehensive answer).

There's not a magic answer, and it depends on the outcome of the SDNY case as well as this case. Not going to make things easier, that's for sure, but we won't know the extent of the damage until the rules are in effect.

I think it is extremely interesting that they asked the status of Frank's Bill to begin the proceedings.

Yeah, me too. It was like saying, "Do we really even need to be here if they are looking at this in Congress?"

I wonder if the court, in trying to show how "in the know" they are about the political aspect went deeper than just the headlines and did some research on the political calculus.

It also seems inappropriate for the court to consider politics, doesn't it?

Joe@iMEGA

Absolutely.

Where do I sign up?

I think its appropriate. If Frank's Bill passes it may moot the issue before the Court.

contact skallagrim

Maybe,

We wont know anything with this case until the court makes it's ruling, could go either way.

What i found interesting was them bring up Delaware, Im thinking that maybe the courts (or maybe just this court) If the view is that it does not matter the location of the site but rather the location of the player. Then the legality of online poker as it relates to states, could be viewed as almost a home poker game, even though the state may not have a law against online poker. the state could say that being the sites collect a rake the games are illegal, like home games would be in many states if rake is collected.

Could this be one way the gov. goes after online poker or am I thinking to hard LOL

realized my question had already been answered earlier

my mistake

The situs issue is one of the more important issues for online poker. Where does the game take place?

The law is all over the place on this issue. The last major test was the MySpace cyberbullying case, which was tossed due in part to the situs issue, though the ruling is not written yet. http://www.mediapost.com/publication...art_aid=109153

The case was a travesty of justice. The defendent was forced to defend herself in California on violating the terms and conditions of MySpace. The federal statute in that case was the Computer Fraud and Abuse Act, which unlike the UIGEA, uses an implicit Commerce Clause trigger. The CFAA is also amended by the Patriot Act, which mucks it up further.

State sales tax is a related issue, as the courts have generally settled on the test that a business is subject to state tax if they have a office or location in the state in question. This has led to sites like Amazon shutting down offices or severing affiliate ties in the most aggressive states like NY.

It may be elsewhere in the thread, but the audio of the oral argument SHOULD eventually make its way to the 3rd Circuit's website...unfortunately, it does not look like they are overly efficient at doing it. I guess I get spoiled here in the Fifth...