Phil Ivey

Phil Ivey Attorneys File Motion to Dismiss in Borgata Edge-Sorting Lawsuit

The attorneys for prominent professional poker player Phil Ivey has filed a motion to dismiss a $9.8 million lawsuit filed by Atlantic City, New Jersey’s Borgata Hotel Casino & Spa.  In its lawsuit, filed in April, the Borgata has alleged that the “edge sorting” technique employed by Ivey and his companion, Cheng Yin Sun, was a form of cheating and that the Borgata should be able to recover the total of Ivey’s collected winnings.  Ivey won the $9.8 million at the mini-baccarat tables during four separate visits to the Borgata spanning several months in 2012.

The Borgata has also named the manufacturer of the cards, Gemaco, Inc., as a defendant in the case.  (For FlushDraw’s previous detailed explanation of the lawsuit, please click here and here.)

In yesterday’s motion to dismiss, filed by Ivey’s attorneys, Edwin J. Jacobs, Louis M. Barbone and Eric H. Lubin of the lawfirm Jacobs & Barbone P.A., several countering claims are made, including the assertion that any statute of limitations has already expired.

phil-iveyAccording to the motion, “[Even] if Ivey’s play was ‘illegal’ under prevailing rules and regulations of the [New Jersey] Division of Gaming Enforcement, Borgata’s right to seek restitution is specifically controlled and limited by a six month statute of limitations.  As is obvious from the complaint, Borgata never reported any of the alleged ‘illegalities’ to the exclusive agency empowered to make that determination, the New Jersey Division of Gaming Enforcement.”

Ivey’s attorneys also strongly disputed the Borgata’s assertions that the conduct by Ivey and Sun was illegal, or constituted cheating.  According to the brief, “There simply is no private cause of action by player or casino to revoke and require restitution of gambling winnings or losses because of some perceived ‘illegality’ which springs from nothing more than a player’s subjective intent or use of his five senses.”

Continued, from the motion, “Plaintiff’s complaint belies its own imaginative pleading.  It was Borgata, and only the Borgata, that produced, possessed and maintained absolute control over all the implements of gambling, from the cards to the shoe to the automatic shuffler at all times while Ivey remained on its property.”

“In sum,” continued the response, “the use of nothing more than his eyesight and his reliance upon information that was equally available to every single casino customer, in no way equates with the [action and wrongful intent] required to accomplish any of the multiple criminal statutes upon which plaintiff relies.  After recruiting, enticing and providing defendant Ivey with the precise gambling environment it agreed to, Borgata seeks to take it all back because Ivey say precisely what anyone [sic] what anyone of its pit supervisors or employees apparently should have seen over the course of more than 100 hours of play.  Complaint is therefore nothing more than an attempt to justify its own negligence, motivated by its subjective intent to take as much money from Phil Ivey as it could during his specially arranged and agreed visits.”

Ivey’s attorneys also noted that while the Borgata acceded to a number of special requests made by Ivey, the Borgata itself imposed special conditions, including the ultra-high table stakes (bets of tens of thousands of dollars per hand), and increasing, mandatory deposits of front money that ranged from $1 million to $3 million for each of Ivey’s visits.  Also, Ivey’s attorneys noted that requests made during the game play — such as the rotation of certain cards — were requests only (emphasis Ivey’s attorneys), and were voluntarily acceded to by the Borgata and its employees, in accordance with New Jersey casino and gaming laws.

Further, the motion to dismiss asserts that if any illegality existed regarding the assymetrical cards identified by Ivey and his companion, then the blame lies either with Gemaco, for manufacturing them, or the Borgata itself, for voluntarily introducing them into the game.  From the dismissal motion: “Therefore, if any ‘marking’ occurred, it was when defendant Gemaco manufactured the cards or when plaintiff’s own dealer voluntarily changed their orientation.”

The dismissal motion concluded by asserting that edge-sorting is clearly legally under New Jersey casino statutes, by closely linking it to card counting.  The New Jersey DGE has examined card counting (a blackjack advantage technique) but has refused to date to declare it a form of cheating.

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