Borgata to File Cross-Motion for Summary Judgment in Phil Ivey Edge-sorting Case

The lead counsel for New Jersey’s Borgata Hotel Casino & Spa has filed advance of his intent to file a cross-motion for summary judgment against defendants Phil Ivey, Cheng Yin Sun, Gemaco Inc., and a “Jane Doe” Gemaco employee in the Borgata’s ongoing lawsuit in the mini-baccarat-based “edge sorting” case.

phil-iveyAttorney Jeremy Klausner of New Jersey legal firm Agostino & Associates, P.C., which has represented Borgata parent company Marina District Development Co., LLC throughout the case, filed the notice on Monday, December 7th.  The filing notifies all parties involved that the actual cross-motion for summary judgment will be filed on Monday, December 21st.  The defendants, including Ivey, are currently within a requisite seven-day filing window for opposition papers to the motion.  That window expires tomorrow, December 14th.

The filing comes after a motion for summary judgment in the matter by co-defendants Ivey and “Kelly” Sun, his partner in the extended edge-sorting scheme, was dismissed earlier this year by presiding judge Noel L. Hillman.  This latest motion for summary judgment mirrors a similar cross-filing by the Borgata’s counsel in a countersuit action brought by Ivey and Sun in the extended legal battle; that separate motion was announced in October by Klausner and filed early last month.

The planned motion for summary judgment in the Borgata’s favor also comes only a few days after the Borgata scored a minor legal win in the ongoing battle.  On December 3rd, US Magistrate Judge Ann Marie Donio ruled in favor of the Borg and against Ivey and Sun in shielding the Borg’s Food and Beverage Manager from being deposed.  Ivey had sought to force the manager’s testimony and information about other alleged marketing inducements practiced by the casino that, according to Ivey’s counsel, were and are designed to distract gamblers from the general fact that they are most often losing at house-favored games.  That side topic bears into the cross-claim brought by Ivey and Sun — and may well imperil that claim — but has a lessened impact on the main action brought by the Borgata in the $9.6 million case.

Klausner referenced that claim in his latest filing, which also includes extensive excerpts from earlier depositions and a handful of new case exhibits made public here for the first time.  The preliminary statement in the brief accompanying the advance notice of the summary-judgment filing shows Klausner and the Borgata attempting to club Ivey and his attorney’s legal claims into nothingness.

That introduction:

Although the Motion for Summary Judgment by Defendants Ivey and Sun (collectively “Defendants”) rehashes arguments this Court rejected in deciding their Motion to Dismiss, Plaintiff (“Borgata”) agrees this case is ripe for summary judgment. The material facts are uncontested, allowing this Court to address the only real issue remaining: whether the Defendants’ elaborate edge sorting scheme is fraudulent, unfair, or actionable under any of the theories presented in Borgata’s Amended Complaint. Borgata says it is all three. Defendants’ Brief mischaracterizes or simply fabricates many facts, and their hyperbole, while forcefully presented, does not aid the Court’s inquiry. Rather, it is another diversion intended to cloud the real issue. Notably, Defendants have dropped some of their prior attempts at distraction, such as complaints about Borgata’s cocktail staff and complimentary beverage service, as well as the alleged “spoliation of evidence,” which they once claimed were “critical” and “highly relevant” issues. Those (now abandoned) allegations are replaced with equally irrelevant and distracting window dressing. However, when the dross is swept aside, the undisputed facts demonstrate that the Defendants’ edge sorting scheme was a complex, premeditated, and fraudulent plan to obtain an unfair advantage in the game of Baccarat.

Later, Klausner and the Borgata characterized the scheme as having all the earmarks of a classic, multi-faceted con game.  Wrote Klausner:

Defendants’ edge sorting scheme was admittedly ingenious. Like any good confidence scam, Defendants’ scheme exploited the personality of its victim to gain and then violate its trust. Indeed, the common factor in all confidence scams is that the victim relies on the good faith of the con artist, and that is exactly what happened in this case. Defendants’ scheme was all the more deceptive because it also exploited well-known casino practices and cultural aspects of Baccarat to their advantage. The first stage of the edge sorting con is “laying the foundation.” This includes the preparation work. Defendants openly admit the preparation work they did. Sun developed the technique of edge sorting at Baccarat. In about 2007, she observed some individuals edge sorting in a casino at Blackjack. Sun developed the technique of edge sorting at Baccarat, and both Sun and Ivey testified she is the only known person who can do it. It took Sun 2-3 years of practice to perfect the technique.

Klausner went on to detail the step-by-step flow of the con as allegedly engineered by Ivey and Sun, complete with references to con-game buzzwords and the scheme’s reliance on Asian gambling superstitions (which we’ll detail here in an entertaining follow-up post).

Klausner’s summary to his 4o-page brief does more of the literary wood-laying, while specifically making the allegation that Ivey and Sun are nothing, once all the window dressing has been stripped away, but cheats.

Wrote Klausner:

Despite Defendants’ attempts to divert attention from the true nature of their conduct, we have come full circle to the beginning of this case. This issue is, and always has been a simple one: is edge sorting as specifically admitted to and practiced by Defendants fraudulent or unfair? The answer must be yes. Edge sorting is little more than a confidence game; a multi-step scheme involving deceit and deception designed to obtain an unfair advantage in casino gaming. Defendants’ entire theory of this case is that casinos deserve what they get because they are trying to make a profit. The fact that casinos are in the business of gaming has no bearing on the nature of Defendant’s conduct. Whether it was done in a casino or at a church social, this Court must call edge sorting what it is – cheating.


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