Phil Ivey, Borgata Continue Mudslinging in Discovery Battle
Professional poker player Phil Ivey and the Atlantic City, New Jersey Borgata Hotel Casino & Spa continue their legal sparring and mudslinging amid the Borgata’s ongoing attempt to collect more than $9.6 million won by Ivey at the Borgata during four lengthy mini-baccarat sessions in 2012. The discovery phase of the trial is ongoing, with the two sides currently engaged in a heated battle over the Borgata’s refusal to allow certain key employees to be deposed in connection with the case.
The latest deposition battle involves the Borgata’s Food and Beverage Manager during the time of Ivey’s four 2012 mini-baccarat sessions, on the grounds that the casino’s attempts to ply gambling patrons with everything from copious amounts of alcohol to the flirtatious advancements of the casino’s “Borgata Babes” waitresses. According to Ivey and his attorney, Louis M. Barbone, the various ploys are a concerted attempt to make gamblers wager sub-optimally and lose more money at the tables than they otherwise would.
The latest filings also include a revelation about a related UK case, in which Ivey initially lost his claim against London’s Crockfords Casino, which refused to pay Ivey roughly $12 million won in similar “edge sorting” fashion at the Crockfords punto banco tables, also in 2012.
According to Ivey’s testimony in the Borgata case from March of this year, he and his attorneys have been granted the right to appeal the initial Crockfords decision, and a hearing in that matter is scheduled for this December. The following deposition exchange between Ivey and a partner attorney in his defense, Edwin Jacobs, details the current status of the Crockfords case:
Q [Jacobs]: All right. Now, the Crockfords case was tried and you lost it, right?
A [Ivey]: Yes, but we — we appealed it.
A: So we have a new trial in December, which is very difficult to get appeal[ed] over there [in the UK]. It’s very tough. Once you lose a case, you usually — it’s usually done with.
Q: Okay. You got to my next question already. An appeal was granted, right?
A: Yes, an appeal was granted.
Q: And did you read the document which granted the appeal —
Q: — which said that you have a good chance of winning?
A: Yes, that’s what the [British] judge said.
Further details from the March 2015 deposition of Ivey confirmed that Ivey’s partner in the edge-sorting ploy, Cheng Yin Sun, was planning her own countersuit against the Borgata. Eventually Sun, commonly known as “Kelly,” and Ivey joined together to file their own crossclaims against the Borgata, as both were named as co-defendants (along with Kansas-based card manufacturer Gemaco, Inc.) in the Borgata’s initial complaint.
The latest developments come as the Borgata continues to battle against the deposition of any employees or executives in its “Food and Beverage” division. Ivey and his defense attorneys continue to allege that the plying of gamblers with alcohol and voluptuous women is its own attempt to skew the offered gambling games even further in the casino’s favor.
Ivey’s counsel filed as an affirmative defense against the Borgata’s ongoing claims a countering claim that the casino has “unclean hands” due to its extensive use of such enticements. According to the latest filing:
The claims of the patron are barred by the doctrine of unclean hands, as plaintiff, routinely, systematically, and by way of institutionalized programs and protocols, seeks to gain untoward advantage over every casino patron, including the defendants, by virtue of its factual representations to the defendants, its provision of complimentary free enticements to the defendants and its array of gaming distractions, namely everything from alcohol to the Borgata Babes, all of which are devised to allow Plaintiff [Borgata] to gain unfair and substantial advantage over the defendant’s gaming talents. [Emphasis by Ivey defense.]
The latest defense filing also excerpts a statement by Judge Noel Hillman, who allowed the trial to enter its ongoing discovery stage, while portraying the Borgata’s attempts to block various discovery efforts as “specious,” and that the Borgata is in no way in need of or entitled to such legal privilege. According to the brief, quoting Judge Hillman’s earlier order and citation of an earlier defense brief:
[I]vey and Sun not that even though Borgata wishes to cast itself as a victim of deceptive intentions, the “essential mission of Borgata’s casino operation is to encourage patrons to lose money by orchestrating a plethora of deceptive practices, such as loud noises and flashing lights on slot machines, hiding the clocks, making exit signs almost impossible to find, having cocktail waitresses wear revealing clothing, and comping copious amounts of alcohol to ‘loosen up’ their patrons.”
Added Judge Hillman:
There is no doubt that much of the defendants’ characterization of the casino milieu is accurate, as tangential a defense as it may be. …
The latest court filing also includes a telling excerpt in which the Borgata was ordered to provide a casino executive to testify on the gaming circumstances surrounding Ivey’s 2012 visits, then proved to be utterly uniformed on the topics at hand and the questions being asked.
Whether the following represents an intentional effort by the Borgata and its counsel to delay and frustrate both the court and Ivey’s legal team is a topic for individual conjecture, but the following deposition represents a moment of legal high comedy, in which Ivey’s attorney is questioning Borgata corporate representative Vincent Alfieri. According to the defense brief, the Borgata was given two separate notices, in January and May of 2015, of the topics to be included in the questioning.
Here’s the exchange:
Mr. Jacobs: Topic Heading E., are you prepared to answer questions on the Borgata Babes program?
Mr. Alfieri: No.
. . .
Mr. Jacobs: [P]hil Ivey in eight hours and six minutes of play, lost $927,700 to the casino?
Mr. Alfieri: Yes.
Mr. Jacobs: Did the casino keep it all?
Mr. Alfieri: I don’t know.
Mr. Jacobs: I mean, did Mr. Ivey ask for any of it back because he was distracted by attractive cocktail waitresses or given too much to drink?
Mr. Alfieri: I have no idea.
[A defense statement inserted here then asserts that Alfieri was unprepared for the deposition.]
Mr. Jacobs: All right. Now, while we’re talking about that, have you prepared for this deposition?
Mr. Alfieri: Besides meeting with Jeremy [Borgata corporate counsel Jeremy Klausner], no.
. . .
Mr. Jacobs: Will you turn to Tab 1. This is a three-page notice for the deposition of a corporate representative, turns out to be you. Have you ever seen it before?
Mr. Alfieri: No, I don’t think I did.
The latest Ivey filing then cites testimony with a second Borgata corporate exec, James Bruno, who also failed to provide any specifics about the “Food and Beverage Service” at the heart of the deposition dispute. Bruno named the Borgata’s current Food and Beverage Manager, Preston Patterson, regarding the nature of the Borgata Babes and other possibly customer-distracting incentives.
However, according to the latest filing, the Borgata has refused to provide Patterson or any other food-and-beverage staff for testimony in the case, claiming the entire line of questioning is irrelevant to the matter at hand. Ivey’s counsel continues its heated pursuit of those employees and specifics on those established casino distractions, continuing to assert that the Borgata is far from the victim in this case that it claims to be.
This update continues later with information of the Cheng Yimn “Kelly” Sun portion of the case, including new revelations on the established print allowances on the cards actually used at the Borgata’s mini-baccarat tables.