PPA has been at the forefront of many state cases and filed an amicus brief in the SDNY case.

I'm not trying to slight anyone or any organization. The purpose of this forum as I see it is the open exchange of ideas, in this case the best ways to fight for the legality of on-line poker.

Maybe a better way to ask my question would have been to ask what others think about the merits of filing a lawsuit on behalf of one or more of the people who were affected by the SDNY seizure, now that the opportunity to seek a favorable court opinion in the existing case appears to be gone.

Certainly I think this is an important question worthy of discussion.

There is one bit of what seems to be an accepted attitude that I am really tired of responding too. That is the idea that the PPA is "litigation shy." In 2009 the PPA has actually been directly involved in more court cases than IMega (only by 2 I think, but still....).

Armchair lawyering is fun, but do you really think consensus on an internet forum should be the deciding factor in determining PPA litigation tactics?

I post a lot of actual legal information here, but I do not post it all. I discuss a lot of facts here, but some I cannot post on a public forum for what should be obvious reasons. And, finally, I post a lot of whats going on, but of course not all.

My point is this: openly revealing and defending from criticism the PPA's long term litigation strategy is not something I am going to do. Stop trying to get me to do it.

As the PPA decides on and initiates action(s), you will hear of it promptly.

This should in no way be taken as implying that you folks should not post your thoughts on what the PPA should do. Quite the contrary, the main reason I post as much on this forum as I do is because I value the response I get on this forum TREMENDOUSLY.

As to this particular issue, and PPA initiating its own legal action, I will only say, as I have many times before, that the PPA is committed to litigating this seizure, one way or another. As to the exact method that will be utilized, sorry. I can't even say what particular position I favor. Certain folks on this forum will try and twist anything I say into some sort of official statement by the PPA. So putting forth what I at this point think is the appropriate future tactic becomes counter productive. Ultimately the decision will be made by a collective of people, a collective that merely includes me.

So just do not think that the PPA needs to be "prodded" into litigating. We will litigate. Exactly how and where we choose to do it is still being discussed and will be announced when decided.

Skallagrim

Thanks Skall!

Well stated, Skall. For the record, I have never accused the PPA of being "litigation shy" nor do I believe that it has been, is or will be. I do believe that the PPA is too optimistic about the chances of any legislation, even the delay bill becoming law anytime this year or next year. However, I am ok with the PPA pursuing these bills until it knows for sure. IMO, when it becomes clear that the pending bills have no chance of passage in a reasonable time, then I believe that the PPA will pursue its litigation alternatives. Some posters, including myself, might do it differently, but the PPA's strategy and approach has much merit.

As someone oft says, if we go in with a significant court victory in hand, our hand will be much stronger at the legislative bargaining table b/c we would have less to lose if no legislative deal were struck. OTOH, I suppose a significant court loss could further weaken one's position at the legislative barganing table. But, I think the calculus here would favor legal boldness versus timidity since there is more to gain than to lose ... unless in a particular case the odds of legal victory were small.

I don't remember who explained this here, but credit to him for convincing me of it.

I do not think that is so.

I clicked on the link on the PPA site about this brief you cite, but all it led me to was an amicus brief filed in California, in the California case, which was dismissed because the action was not filed in the SDNY.

Is there some PPA amicus filing made in the Southern District of New York litigation you are referring to ? That would be good to hear.

Skall has posted about how he appreciates posts about what the PPA should do ........ but he will not opine about what it will do. That is understandable.

This is a sign of confusion over words, and we probably should be clearer about the specifics.

Most of us have off-handedly referred to anything to do with the recent seizure of funds as the SDNY case. Typing SDNY is a lot easier than constantly repeating "the case (now cases) over the seizure of funds by the DOJ's SDNY office."

The DOJ's SDNY office initiated the seizure of funds form 2 poker site payment processors. The actual funds were seized from banks in California and, I believe, Arizona. Account Services (one of the payment processors) then filed a motion for return of the seized funds. By law, this motion had to be filed where the funds were seized, so it was filed in California.

The PPA joined this litigation for the return of funds as an Amicus (i.e., friend of the court) and supported Account Services request by filing the brief referred to in TPCEO's post. I though it was an excellent brief.

I think the DOJ for the SDNY also though it was an excellent brief. And I also think they did not like the idea of having to fight so far away from their "home turf." So the SDNY then obtained a criminal indictment against Mr. Rennick, the Canadian owner of Account Services. Also telling is the fact that the SDNY did not indict the corporation Account Services, though they could have easily done so. In that criminal case they also sought forfeiture of the funds seized in California (along with a lot of other funds from AS and Rennick).

It is a general rule in Fed. Court that when a criminal forfeiture case is pending, a civil forfeiture case concerning the same property should be dismissed so the issue of forfeiture can be decided in the criminal case. That is what the California court did.

But it dismissed the case "without prejudice." This means that the case can be filed again if circumstances change. The circumstance that will change things, one way or another, is Rennick's extradition from Canada. If it occurs, fine, the case can be litigated.

If Rennick is not extradited (and he has good grounds to fight it, I am told) the criminal case cannot proceed.

At some point that stalemate will require the courts to let us and AS the corporation go forward with our request for return of funds. When we reach that "some point" is a very gray area of law, and may be years away.

This is the situation we are analyzing now, and trying to figure out how best to respond.

But the brief we filed in CA is on point, and will be filed again. Just not sure where or when at this time.

Skallagrim

Why dont the online sites use Canadian processors exclusively? Doj cant seize money in Canadian banks, therefore much less headaches in the long run.

Skall, how could AS prosecute any case for return of its seized funds without the testimony of Mr. Rennick? IMO, the indictment is to prevent his testimony in any case because the DOJ does not want any party to submit proof that the seized funds were only derived from online poker. Then, the DOJ would have to litigate the issue of the legality of online poker which it seems hesitant to do.

This is a practical problem, but not an insurmountable one. I do believe there were other employees of Account Services besides Mr. Rennick; an accountant, for example, could also provide the needed testimony/evidence.

But I fully agree the indictment of Rennick was done primarily so the DOJ of the SDNY would NOT have to litigate the legality of online poker, at least not anytime soon. To me the MOST telling aspect of the indictment is, as I have said, the fact that the corporation was not indicted too. That is actually very unusual and had to be done for a reason. IMHO the reason was to create a criminal case that could not proceed (because Rennick is in Canada) and thereby delay things for God only knows how long.

Skallagrim

Okay, try "the Funds Seizure", perhaps.

I agree the brief was well-written, but it clearly needs to be presented in the apprioriate Court. Better late than never.

By the way, the Third Circuit has now ruled on the UIGEA case, so there is more up for consideration by the PPA.

You can also, at least partially use the indictment itself which states the funds were destined for players.

obg

This is one of many reasons why Project Nixon needs to move forward.

What is Project Nixon? (in honor of Tricky Dick, who loved poker)
1. Sift through all of the accounts at all of the sites to find the hypocrites, whether they are in the DoJ, Congress, congressional staff, Paypal, Visa, lotteries, religious right, banks, high ranking military officers and other branches of gov't.
2. Out them as the hypocrites they are. Will being exposed as hypocrites destoy their careers? We need to raise the stakes.
3. As a side benefit, we can then use these hypocrites as defenses for selective prosecution.

To those who want to play nice, writing letters and lobbying, I ask one question: Where's the beef? The time for playing nice is over. We need to move into other means to achieve the ends that seek.

Wouldn't the employee then become subject to the same prosecution? Maybe not if he or she was a US citizen. Still what employee of AS wants to test it? I agree about not indicting AS. Doing so might cause the case to actually be litigated.

P.S. I read the iMEGA decision. You were right about the Court not applying the privacy standard to commercial rights.

This came across to me as a cheap shot. As Skall said, PPA's actions as amicus in the California court were in the appropriate court. The appropriate court changed; moreover, it changed largely because the PPA did such a fine job.

I assume you didn't mean to be taking a cheap shot at either Skall or PPA, but it sure read that way.

All of the U.S. employees are already at risk of indictment; testifying wouldn't change their status much at all. Even a US Attorney can't say to a potential witness, "if you testify, we will indict you."

But the anti-seizure case can be made without calling employees subject to indictment. AS could use a low level employee from the accounting dept to authenticate the business records and then use its 3rd party CPA to talk about the seized funds. I have not spent a huge amount of time thinking about how AS would present its case, and I am not fully aware of how it conducted its business, so I am not sure just these two witnesses would be sufficient for the seizure case. But I agree with Skall that this is not an insurmountable problem.

I'm not a litigator so I accept your opinion. I'm glad that it is possible for AS to contest the seizure at some point in the future.

Forgive my ignorance, as I'm not an attorney and didn't stay in a Holiday Inn Express last night, but wouldn't it seem that a good battle to plan to fight would be a suit by the players against the DOJ the NEXT time they make a seizure. In the case of the Account Services seizure, the poker sites made the players whole which seems to have removed the players' standing in a suit.

But if next time it happens, the sites refuse to make the players whole (and I realize this is dicey, but maybe they could offer players the option of not being made whole), then the affected players would have been directly harmed by the questionable policies of the DOJ and would have standing in a suit.

Ok attorneys, shoot my idea full of holes. It's likely this idea has been discussed here before, but if so, I've never seen it.

I like your idea and the good news is that the PPA IMO does have standing because some member-players suffered some harm from the seizure like bounced checks which caused bank accounts to be closed.

It seems pretty clear that had I written as Skall explained:

"It is a general rule in Fed. Court that when a criminal forfeiture case is pending, a civil forfeiture case concerning the same property should be dismissed so the issue of forfeiture can be decided in the criminal case. That is what the California court did"

.... you still would have read my post as a cheap shot.

Even if you believe the appropriate court "changed" largely because "the PPA did such a fine job", what is your complaint when someone posts that the PPA should repeat that "fine job" in the "new" appropriate court ..... the SDNY ?

(There has been a forfeiture case pending all along in the SDNY, a dismissal in California was hardly unexpected. I can accept I might be mistaken as to whether the Account Services filing in California was required because the banks were there, but that seems a fine distinction and clearly moot at this point. The California Court has given a pretty clear direction where to go with the argument.)

Wow, this thread has devolved into a lot of gobbledygook.

Where the hell does this issue stand right now?

Cliff Notes:

The SDNY has filed a criminal case in N.Y. against Mr. Rennick (but not against Account Services).

The California court ruled that the suit filed there to get the seized funds unseized isn't valid at the moment, since it falls under the pervue of the criminal case in N.Y.

The criminal case won't go forward unless Mr. Rennick voluntarily goes to N.Y., or he is extradited by the SDNY from Canada.

The SDNY probably doesn't intend to extradite Mr. Rennick, as they will then have to prove in court that online poker violates Federal law.

Eventually, after it is evident that the criminal case won't be going forward (probably after a year or two), the California suit to return the seized funds can be refiled.

What do you mean by pervue? How can US citizens lose their right to challenge the validity of a governmental taking of their property because of a criminal case against a separate party that may or may not be tried?

Read this thread.