There's no reason to argue whether or not poker is a contest, whether the sporting adjective on event was implied to the word contest or whether contests in which the bettor participates are excluded, as the current opinion of the Justice department is that the Wire Act only applies to sports betting.

As far as the defendants somehow convincing Kaplan that putting money into a poker pot is not a bet or wager, with those terms defined as putting anything of value at risk in exchange for something of value based on an uncertain outcome, I don't see the contrast.

The definition is so broad that they felt the need to include a carve out for the security and commerce exchanges as well as the insurance business, but somehow poker bets and calls elude this broad scope?

The reason they would have a better chance had the sites they processed transactions for only ran tournaments is that you can lose hands in a tournament without losing any money, and win hands without winning any money.

The problem for cash poker is that the amount of "chance" involved in a game is judged by when the prize is awarded, so while an entire tournament may have the effective variance only one cash game hand, because winning the prize requires winning multiple hands, the court would not be able to judge "poker" based on a worst case scenario bad beat.

I think there are other arguments the defendants could use to get the question of skill for online cash poker to be tested over multiple hands, since online poker doesn't require a player to sit at only one table, but a site that didn't offer cash poker wouldn't have to depend on the court's opinion of those arguments.

Judge Kaplan appears to disagree:

"Judge Kaplan called the argument that poker is not gambling “surprising” and said that Campos and Elie will need to defend at trial the government’s claims that they violated the Illegal Gambling Business Act. “It would be inappropriate,” Kaplan wrote, to dismiss any count “for lack of proof at this point in time.” - From the Forbes Article.

Kaplan left all eight of the government’s counts intact

/////////////


By making his ruling, Judge Kaplan hurts the chances of the defendants because they can't argue to the jury whether poker is or is not gambling. That's not a jury question. That's a legal question for the judge.

Regarding the Wire Act, please keep in mind that the DOJ "opinion" is an opinion. It is not law, and it is not interpretation of law by a judge.

Thanks for your extensive attention to this. One of the positive developments in this forum is a trend for reference to actual source material, rather than the former attitude of just quoting some hack outlet, like G911 or some paid front group like FPUSA.

Is there a link to the DOJ filing ?

(The Dik**** refund point was just a rhetoricsl note, sort of like the Board at Party Gaming itself burning some $7 billion in shareholder held market cap because the UIGEA passed. How different would the landscape have been if a vigorous litigation effort had been mounted in 2006 to clarify that, in the absence of a federal law violation like the Wire Act, the UIGEA did not apply against poker universally across all States.)

Any link available to the actual order or judicial remarks ? (The Forbes article seems pretty slanted, especially the "no summary judgment" remark. It seems out of context where the Judge asked for briefing.)

The no summary judgement remark is just the court stating the procedural rules for criminal law, in a civil case a defendant can ask the judge to skip the trial and give a ruling based on the evidence, but under criminal rules a case can't be dismissed for lack of evidence before trial.

thanks for the editorial, us judge

Sorry, hopefully by tomorrow. Things just happening faster than expected tbh, and everything is still under construction.

ty

If a trial goes down in NY- the defendants may need to stock up on Vaseline. Those guys almost never lose.

This. Also thanks for continuing to follow the case for us D_F.

In the first campos/Elie brief the DOJ took the line that w.r.t to UIGEA:

Bold emphasis added.As an aside I have previously written here the report mentions for the vast majority video poker FWIW.

w.r.t to IGBA:
Bold emphasis added again. I think it's useful to quote Skall's response(hope he doesn't mind) to a question by myself re: State laws and IGBA in an older PL thread:

So w.r.t UIGEA the Plaintiff claims that if Congress had so desired it would have specifically explicitly exempted online poker whilst simultaneously arguing that in IGBA that the Plaintiff knows what Congress meant and implicitly construed, i.e it's covered despite no explicit reference to poker in IGBA.

Is that position not somewhat logically inconsistent or have I made a logic faux pas?

IMHO the uncertainty w.r.t interpretation of gambling legislation or "muddled waters" needs to be cleared up or ideally new legislation enacted else it will hamper the industry. Let's see if it is a bit clearer tomorrow... in teh other thread LDO

I haven't found a link yet.

I've found Nathan Vardi (Forbes author) to be well-informed and very even handed in his reporting.

He even took a jab at the government in a previous article:

Still, the government lawyers will have to hope that their understanding of the law is better than their knowledge of country music.

^^ I don't spam my own sites, but I think this is the link you are looking for: https://docs.google.com/viewer?a=v&p...0ZDcz&hl=en_US

This judge basically punted all the issues until after the trial.

That is what I was looking for. Thanks.

The actual Order is a bit more interesting than the Forbes article, especially wioth respect to the analysis of the exemption.

All in all, the Order decided almost nothing, except that the case is going to trial because the legality of the underlying poker business will be examined under NY laws.

.... Lawdude wins, so far.

Quite apart from the applicability of UIGEA and IGBA, my reading of the bank fraud caselaw is that they're hosed on that.

Obviously, though, it would be a major victory for poker players in the US if the UIGEA and IGBA claims were thrown out.

It's true that poker bets are different from some other types of bets. The problem is, the statutes don't really draw any distinction based on that. The triggering event is a bet or wager, not any particular form of bet or wager.

I'll say this about Skalla's attempts with respect to skills and chance-- the role of chance actually is an element of most state gambling statutes (as well as the UIGEA), so he's trying to make an argument based on something that's actually relevant under the applicable statutes. You can't simply say "poker is different"-- you have to show that it's different in a way that MATTERS under statutory text and caselaw.

I suspect you can go to any state or federal judge in America and you will find that counter-intuitive arguments are harder to win. That's simply a fact of life.

Perhaps. I clearly don't understand the logic, or utter lack thereof, of the legal process. I am curious as to how much the terminology of poker is relevant.

If we were playing a game of chess, and I held the while pieces, I would open 1. e4; and if you responded 1. e5, my move would be 2. f4, the King's Gambit. I am willing to risk the loss of a pawn in order to gain control of the center as well as open lines that will result in what I hope to be a devastating attack on your king.

• If we called this opening the King's Bet, would chess be gambling?
• If poker had treated a "bet" of x dollars as being a raise from 0 dollars to x dollars (which is actually how it was recorded in Tribeca Table hand histories), and avoided use of the word "bet" altogether, would poker not be gambling?

On a more pragmatic line, NY's treatment of poker clubs is largely based on the affiliation of these clubs to "guys in silk suits", who were often into bookmaking, loan sharking, and other types of clearly illegal activities. To what extent do court rulings in these cases reflect the character of the defendants as opposed to the text of the statutes?

^^ Continuing from the nice chess example

Growing grapes from UK Telegraph newspaper
So when I risk my money on a vineyard by wagering that I will reap a good harvest and is that not gambling too?

As a matter of fact some of the 'larger' ones are subdivided into investor plots 'vignettes' that combine under co-op agreement to share and outsource all the big costs of maintenance.

The fact is the word "gambling" is in common parlance and often has different meanings between different persons. Buying home insurance I consider gambling by the insurers that it won't happen which means I'm gambling too as I take the other side. many others don't consider that gambling.

All that matters is that under these statutes is the playing of Internet poker covered by them? If one's sole argument is that it uses the same terminology then you better start charging chess players and vineyard owners for "gambling" too.

Good points and well-said. I understand that the legal standards do force themselves to, necessarily, look at the duration of a game until it reaches its payoff. I agree that it would be nice if some consideration were given to typical duration; just because people can choose to play only a single hand in a cash game, that doesn't mean that most players aren't playing enough hands to equal out to the tournament variance in any way. But yeah, legally the option to end a game early is probably tough to overcome... even though this hypothetical judge who approved tournaments but not cash games would probably not have any issue with players somehow "cashing out" or selling their seats in the middle of a tournament for their chip equity, assuming such a market existed. Or maybe they would. Who knows! Maybe an enterprising poker site could create cash game poker where "score" is kept until you've played X,000 hands, upon which your results are taken from or added to your deposit.

Also I love where TheDarkElf is going here.

It's good mental exercise, but can you see a politically indebted judge giving this case a massive sideshow on whether or not poker is gambling. His phone would burn up.

Wasn't there a nordic Court ruling that poker tournaments were differentiated from cash games?

I think I see where this is going.

Repulse, following on from your earlier post in this thread and what Dark Elf is posting are you trying to describe a (poker) game which is accepted by all parties as not gambling, involving betting or wagering e.t.c i.e. exempt.

Then showing how one can stay within the rules to the above exempt game we can create synthetic replications of other games which are actually the real games played and thus demonstrate how they are also logically exempt.QED.

More pragmatically, AFAIR in re: Mastercard that the Judge's ruling considered the fact that the DOJ were asking for changes to modernize the Wire Act and expand it's scope beyond sports-betting in the forerunner Prohibition Bill(that didn't pass) before UIGEA. If the Wire Act already covered non-sportsbetting as the previous opinion was then there would be no need to modernize it.

Likewise if UIGEA, IGBA cover online poker then there is no need to update and extend it's scope. If there is then it wasn't covered in the first place surely.

i.e The judge's view is that one can't contend it is within the scope[of said statute] and then lobby for changes to extend if it was already covered.

Good post, for some reason it reminded me of Phil Helmuth always buying insurance when he gets his money in good, because he doesn't like to gamble. I'd love to see an option to buy insurance if/when we do ever get government regulated online poker.

Almost anything fits this statute if something of value is at stake, a similarly worded statute was used in California to prosecute chess players for wagering in public, even crop insurance would fit the statute if insurance wasn't carved out.

Thanks, I've been told I made a good point once or twice, but no one ever suggested it was well said.

The one way a site might be allowed to operate is to be a non profit, like if the PPA ran a site strictly for it's members.

I still think PokerStars might get a walk on the gambling business charges, which would be poetic justice since they can argue that all the gambling took place on the Isle of Mann, as IOM requires that all the money in play be within their jurisdiction.

If NY can use advanced deposit wagering to say that people betting on horse races from home are actually placing their bets at the track, because the bet takes place where the money changes hands, then the IOM should have the sovereign authority to say that all the gambling serviced by their licensees is occurring within their border.

It's not so much the legal aspects of the argument, I'd just like to believe they bought some good karma by not stealing player money, it would be a Hollywood ending for not having play money segregated to be the reason the others do hard time.

My best answer to this is to say that while it's true that poker bets are different than other sorts of bets, they are clearly still bets. You are still saying "I will give up X amount of money if outcome-at-least-partially-determined-by-chance does not happen and win a defined sum of money (even though not a sum certain) if it does". There isn't anything in the definition of a "bet or wager" that excludes the sort of betting that occurs in poker.