The other issue with TV commercials is that to be worthwhile they need to cause some action on the part of enough viewers that it will move the cause forward. In our case that might be as much as writing to congress or as little as forming an opinon *if* that opinion is going to be measured in a survey or something that pertinent members of congress will hear about. What are the chances that commercials would sway enough *new* people to write to congress? My guess is not enough to be cost effective. IMO most of the people who might care enough to do that are already being hit periodically by emails from Starts, FTP, PPA, etc. Trying to sway opinon for an opinion poll of some kind also seems like it might not be cost effective. Even if it was I have doubts that the timing for this is right at this time.

No one seems confused. Yes, the PPA has organizational standing ... glad you nailed that concept.

As for a Declaratory Judgment action, that was your focus, not mine.

My idea was a bit simpler, the PPA staking an equitable or legal claim to some of the proceeds which were seized. This is very different from the Declaratory Judgment tangent you launched into.

Don't think EVERY DOJ action is seamless or identical. Focus on THIS opportunty. Unlike the SDNY defendant, THIS criminal case WILL proceed, as the defendant is in custody.

So, without going on a Declaratory Judgment tangent, can you address what process in THIS seizure case can be utilized to raise the legality of poker as an issue required to be decided.

(If the funds legally and rightfully belong to X, as evidenced byy the check issued to X, why does some action by Defendant need to cost X HIS rightful funds )

If there were NO underlying illegal activity, does a DOJ seizure create a constructive trust ? How about stating that claim, ask the Court to establish the trust ?

Let DOJ argue about whose funds they were when seized, but raise the issue of whether the seizure itself was tied to any illegal underlying activity. THAT is what can be gained, perhaps.

Thanks.

OK, Skall, so why doesn't the PPA add a poker site, ACS, 2+2 or even CardPlayer as a member. Its by-laws or articles of incorporation can be amended to permit corporate members. Then it could file a Declaratory Judgment suit and prove actual or imminent harm to a member. This litigation is more likely than not to benefit its player-members. So why not do it?

IMO the commercial message should be inclusive, not just as narrowly framed as playing poker online freely. How about "we don't want Congress to restrict our freedom on the Internet"? This way general public can relate to and care about. If our Government is making unfair laws, fighting it in court can take a long time. So public opinion can be a huge wave to quickly turn the tides for us.

The confusion was novahunuter's and BigAlK's and was my fault for not being more clear about the distinction between one kind of standing issue and another. I believe they were happy with my reply.

As to the rest of your post ... do you read what I post before figuring out how to write an attack on it?

Rather than write anything new, let me just use statements from my prior post:

PPA member players have already suffered as much injury as is needed to seek return of the funds. No one has suggested that the PPA cannot file a claim to return of the funds. Apparently you forgot that the "weak-tight" PPA did exactly that after the seizure in the Account Services case. The reason the PPA has not filed such a claim in this case is because this case has BEGUN with a criminal complaint. You may have also forgot that what stopped the PPA's civil suit over the Account Services money was the institution of criminal proceedings. At least this criminal case has an in-custody defendant and is therefore likely to get resolved in due course. That due course is likely to be 1 to 2 years, after which the PPA can fight to have the money returned if the DOJ tries to forfeit it.

If the DOJ has not already filed a criminal forfeiture request for the FL money they would within 24 hours of our filing a request for the return of the money. So there is just no way to force the issues to be litigated in the FL case at this time.

Skallagrim

How do we force them to join once we have changed our by-laws to become the Poker Players and Poker Businesses Alliance?

And if any of those entities wanted to file such a lawsuit, they can. Right now. They do not need the PPA to do it for them.

Skallagrim

I agree. To have any hope of making a difference the appeal would have to be broader than just internet poker. That would be required even if the goal was only to sway public opinion. Non-poker players would need to see this as a first step toward something that would eventually effect them in some other area.

But if the goal is to get any concrete action I wonder how many would actually take the step of writing to congress about something specific that doesn't effect them (online poker) due to something else that *might* happen in the future. I don't disagree that public opinion could make a difference. If the PPA had an unlimited budget doing this would be a no brainer. But as NovaHunterPa pointed out, they don't.

Are we certain that we want a court to rule on the current legality of online poker?

Also, how is the PPA going to claim a stake of the money when all players have been reimbursed? The seized money is owed from the processor to the sites at this point I would think.

Finally, how does this work if the criminal complaint is only running an illegal money transmitting business and not violation of the Wire Act and UIGEA?

http://theppa.org/donate

It is going to happen sooner or later LG, the trick is going to be getting it to happen in the right case and at the right time.

Its an arguable point. The DOJ's basic position, for which there is some support, is that ALL money seized from a provider of an unlawful service or product is "illegal proceeds" and therefore forfeitable. For example, if you are a plumber and you fix the sink for a drug dealer and just before he pays you the Feds swoop in and seize all of the dealer's money, you don't get to claim a share of that money just because he owes you and its a perfectly legal debt. On the other hand, however, if he has already deposited the money in your account you get to keep it even if it came from illegal drug sales (assuming, of course, you are not complicit in the drug dealing).

Before TPCEO rips me for it, this example is not meant to suggest that there are similarities between drug dealers and poker payment processors. It is only an example to illustrate the basic legal point.

So what we first have to establish is that this seized money is more like the payment for the plumbing job than the wad of dealer cash. Given the unique nature of a poker payment processor's business, we think we can. This is argued about in the PPA's Account Services brief (link previously posted ITT). Be forewarned, however, it is a very lengthy and complex legal argument. If we do not get around that juncture, however, we do not get to the point of being able to argue about the legality of the underlying activity (though of course the defendant still can).

That does matter somewhat. If the money is not "illegal proceeds" then the Feds cannot forfeit it. So if the money is "clean" but was seized while merely being held by an illegal transmitting business, the money has to be given back to its rightful owner(s). This process, by law, occurs after the criminal proceedings against the defendant have ended.

Skallagrim

Really, they would refuse to join the PPA and refuse to provide it standing to initiate litigation that would likely benefit its individual members? Aren't some important of Cardplayer and FTP directors or former directors of the PPA?

I think the point was more the by-law change rather than the force them to join point.

Wouldn't this cause potential problems with legislation down the road, especially since a court victory can be overturned in Congress?

Im not sure why you are so eager to rush to litigation today. Even if the law is on our side it doesn't mean we win the case. You know better than most that judges aren't always simply impartial arbiters that decide cases by the letter of the law.

+1

In this day and age it is just as important (some would say more important) to make judges comfortable in ruling our way as it is to show them that logic, law and fact dictate ruling our way.

Also, JP, the more subtle point I was trying to make is simply that IF any of the businesses wanted a lawsuit such as you desire to go forward, there is no positive point to having the PPA amend itself to include them and then do it when they could do it themselves and the PPA could file an Amicus Brief.

The whole point of the PPA is to represent poker PLAYERS.

If the PPA were to become a representative trade group for certain poker related businesses, there would be little distinction between the PPA and the IGC or other trade groups. And I believe that distinction is important. Especially politically.

Skallagrim

+1

PPA is a players' group, not a trade group. I absolutely oppose allowing corporate entities to join.

Everyone,

If we have a good case and, for some reason, find we absolutely need to have a business on board, we'll figure out a way without having the organization join PPA as a member.

Politically, I agree. However, I have given up on Politics solving this situation. The NRA has individual and business members and represents individual gun owners. It's on a roll in the courts; especially the SCOTUS. As you know I have doubts about the judicial system protecting individual freedom or even the US as a nation of laws.

However, I have totally given up on the political system. It is nothing more than a mechanism to expand government and turn the US into a collectivist state. Rep. Franks has never had a mark up on any of his licensing bills, Speaker Pelosi and Sen. Reid are on the record as opposing licensing online gambling, the Republicans are favored to take over the House in 2011 and may take over the Senate and the Obama administration has permitted the DOJ to step up its campaign against online gambling. The membership of the PPA is divided about the bills introduced in Congress. Now, apparently, some Congressmen, like mine, Rep. Clay, view licensing as a revenue raiser. Finally, states, CA and FL, are threatening to take action that even the PPA believes would be detrimental to the players. Somehow, the politics fail to give me a warm, fuzzy feeling.

Only two things stand in the way of the legislative system. One, is people like TE, Skall, many of you posters and the Tea Party people. I hope that they are enough to reverse the political situation, but I'm not optimistic. The other system is the US federal court system. Yeah, it's not a great barrier, but with the current majority seeming to be strict construction advocates it may be better than anytime since I was in law school, and IMO it's the only one with a reasonable chance to benefit online poker players.

Thus, having the PPA have a corporate member is just a way to provide standing so it can use the federal court system to attempt to benefit its players. I would like a better way for the PPA to obtain standing, but I don't see the DOJ providing one. IMO, it is time for the PPA to stop reacting to the DOJ underhanded (I could use the work despicable) campaign against online poker and online poker players and take legal action against it. LG, victory is not assured, but you are as pessimistic about the political process as I. So what other alternative exists?

I guess we could wait until the only deposit method is by cashiers check sent by Fed Ex and the only withdrawal method is by check issued by a foreign bank. But I would prefer not to wait.

Sorry for the long rant. I wouldn't bother if I did not greatly respect TE, Skall, the PPA, its member-posters on this forum and all your efforts.

In my opinion allowing corporations to join would be one of the worst moves the PPA could make.

*plonk*

Can you imagine the reaction that would get from those who believe the PPA is just a shill for PS and FTP anyway.

JP, I largely agree with what you wrote above. The political process is long and may never yield the results we would like. IMO it's likely going be many years before we pass any legislation on Capital Hill and even if we do pass something it may not be the kind of legislation we as players really want. I just don't think we can give up on legislation, no matter how long it takes we need to build support politically for poker rights and that means working with lawmakers on the political front.


We may not gain much in the courts either, though this is an option it carries risks for us as well. One of the differences between the PPA and the NRA in litigating in the courts is that the NRA has the 2nd amendment on it's side when going into court. Poker players have no such amendment giving them the right to play poker, though they do have other legal arguments and the Constitution (just in a less direct way) on their side. Even going through the courts is going to be long drawn out process and will likely take years.

Everyone wants something to happen fast on the political front (which can happen) but I expect this fight to last many years if not longer.

Edit: Just because it's hard and may take a long time I don't think we can abandon our efforts on the political front, even if it doesn't result in legislation we need to lobby in DC to prevent further damage.

I'm just not sure that we have years to wait for legislative results before we are reduced to the status of sports betting. IMO, the current legislation isn't about poker rights; it's about revenue and control for the government. And the present, the political action appears to have run its course. I'm not advocating completely abandoning it, but opening a second front.

We don't have the 2nd amendment, but we do have court precedent that the DOJ's interpretation of the Wire Act is not correct. Any litigation will take years, but starting it could cause the attorneys in the DOJ to reconsider their expansion of their anti-online gambling campaign to the online poker industry. If the PPA files litigation, then these attorneys in the DOJ have to consider the consequences of this litigation on all the actions that they have taken to intimidate the industry. I favor action over reaction.

True, but we're a totally different industry.

We're in an area notorious for astroturfing. In fact, the PPA is completely unique in that it's a permanent organization devoted to the interests of poker players.

A single corporate member with voting rights would destroy our credibility. Taking donations is fine, as that's a one-way transaction without quid pro quo, of course.

Congressional action has aligned with public opinion for the most part. Prior to UIGEA's passage, our opponents were successful in convincing otherwise rational people that they ought to favor using the power of the federal government to stop others from playing poker. Consequently, Congress went along. We're now doing our part to express our side of the argument, and we are changing minds. If we change enough minds, current and future Congressional action will reflect that.

My concern here is that strict constructionist judges typically focus on limiting big government when it's from the left. For example, they'll support gun rights and limits on government social programs, but rarely apply similar standards to matters of law and order, the "war on drugs," etc. If federal marijuana laws were found to be unconstitutional, I'd suspect that such a decision would come from a more liberal court.

I don't think the courts will give us anything we can't get from Congress. They can help, but at the end of the day we'll have to have support at some legislative level.

As we have to earn support anyway, IMO we'll want to do that while ahead.

Thanks!

I agree we will likely end up there, but is it worth it to rush to battle? As of today we can still play poker, and the legal fight isn't going anywhere. If we have to fight (as in the ACS) case we fight, but I dont think we should necessarily be pushing for a test case.

Dems are still favored to win the House this year FWIW to the extent you believe intrade

JP, I think we're in for a wait no matter which path we choice (maybe the choice will be made for use) legislation or litigation. I think the PPA needs to work in both areas and chose their battles carefully. Both legislation/litigation can have up sides and down.

I to worry about the legislative front, current bill or future ones. Even if some form of regulation of an online poker bill passes we don't know how it will affect players,what kind of sites receive a license, if there are added taxes,ect. ect. The bills we have today may not be the one we see tomorrow and could be better or far worse.

I feel litigation can also take a long, long time. What are the chances that the PPA can bring a single case before a court, win and have that be the finial word for all aspects of online poker. Wouldn't most cases only focus a narrow issue of law (like in some of these processor cases)? If we win we might have to go back to court all over again to argue against the DOJ because they site a different law in another case, involving a different part of the online poker world (instead of processing).

I'm not an legal expert but what are the odds that a court in a single case will rule that playing online poker is expressly legal in the US, for all citizens everywhere in the US ,giving them unrestricted access to poker sites everywhere? We could be fighting in courts for decades,winning small battles along the way.

Even though the NRA has had some success recently in the SCOTUS , the court only ruled on a narrow area and not on some of the larger issues the NRA would have liked. Plus it took decades of trying by the NRA (others) to get the SCOTUS to even here some kind of case. The NRA will likely be fighting in court's for many more decades to come. why wouldn't you think the PPA might not have to do the same?

I could be wrong but do you think if the PPA wins 1 or 2 cases in court that it will all be over? Would these 1 or 2 cases likely cover all the broad legal challenges we online players,sites and processors face, or would the ruling only cover one specific aspect at a time? I could be wrong but I think litigation covering all aspects of online poker could take as long or longer in some cases then legislation. Though I'm certainly not against trying.

Very strict constructionist courts have held that Congress has the authority to ban mailing of interstate lottery tickets since the 1890s. With this, I'm concerned that we'd be arguing only the applicability of UIGEA and the Wire Act on poker, rather than the broader question of Congress' Constitutional authority to enact such legislation.

From Wikipedia:

I think we have a good case to take to the courts if needed, but I don't see it as a slam-dunk. IMO we ought to continue our legislative push while simultaneously seeking out appropriate cases for litigation.

So if the money is "clean" but was seized while merely being held by an illegal transmitting business, the money has to be given back to its rightful owner(s).

+1, very good, Grasshopper.

.... and in litigating that the money was "clean", the issue of the legality of playing poker online must be addressed.

Do you see why playing a weak-tight strategy in picking a case may forgo the opportunity to prove what "we think we can". Collect a couple of unpaid checks and limp into the hand.

DOJ is prosecuting what it thinks is a crime, not avoiiding criminal cases it thinks fit in a master plan to avoid litigating this poker legality issue. The facts here SOUND pretty strong, and THIS criiminal process will be relatively quick,, as the Defendant is in custody.

Not every question is an "attack", learn the difference.