Borgata Phil Ivey

Borgata, Phil Ivey Spar Over Appellate-Bond Stay Motion

There’s more legal action in the high-profile “edge sorting” case pitting Phil Ivey and co-defendant Cheng Yin “Kelly” Sun and New Jersey’s Borgata Hotel Casino & Spa. The latest topic of dispute is another attempt by counsel for Ivey and Sun to have the appeal of the $10.13 million judgment in favor of the Borgata formally certified as “final” (and moved on to the appellate level), without Ivey having to post the amount of the bond.

To date, Ivey and his lawyer have resisted all efforts by counsel for the Borgata’s parent company, Marina District Development Co. LLC, to get that $10 million and change into the legal system, to be awarded to whichever side prevails upon appeal. The most recent memorandum in the case, filed by Borgata counsel Jeremy Klausner, accuses the Ivey side of intentional foot-dragging and much more in an attempt to keep that money out of the legal reach of the Borgata, come what may at appeal.

This latest brief on behalf of the Borg is a response to a motion filed by Ivey lawyer Louis M. Barbone in late July. That motion asked that the late-2016 ruling be declared final — the Borgata response agrees with this — but asks that the financial element, that $10.13 million in owesies, be stayed pending the “strong showing of likelihood of success on appeal and the substantiality of loss upon defendants.” That later means that, yes, $10.13 million is a lot of money, and Ivey, Sun, and possibly Sun’s backers would rather not have to put that money up as bond, which is normally the case.

If it all sounds like we’ve been here before, we have. The two sides have been arguing about the appellate bond since at least February of 2017. Back then, that question was deemed unripe, since Gemaco was still a defendant in the Borgata lawsuit. The Borg has since dropped its claims against the Kansas City-based cardmaker, thus removing that legal technicality.

Both sides have resorted to classic legal fuckery in making their arguments, which is admittedly part of what’s made the lengthy circus so entertaining. Nonetheless, it’s hard to see how Barbone’s latest motion on behalf of Ivey and Sun was anything other than a delaying tactic, as Borgata’s Klausner asserts. Stating “likelihood of success on appeal” is legalese for “you’ve fucked up,” which no judge is likely to take well.

And further, the argument that having to post the $10.13 million is financially damaging to Ivey and Sun is… well… moot. Whether one believes that the 2016 ruling in Borgata’s favor was correct or not, or whether Ivey cheated or not, the standard legal precedent is that one has to post the ruling’s adjudged amount is a part of being able to make that appeal. There are exceptions, but not wanting to ’cause it’s a lot of money generally isn’t one of them.

As Borgata’s Klausner wrote, “There is no testimony or evidence in this case that Defendants will be prevented from pursuing their careers as professional gamblers if a stay is not granted. Defendants’ brief does not even try to make the argument; it just cites Minard [an earlier case regarding an appellate bond] in an attempt to get this Court to infer that Defendants are in danger of ‘shutting down.’ To the extent that professional gambling even can be compared to the businesses in Minard, publicly available facts show Ivey is a very long way from going out of business. First, let us not forget that Ivey has Borgata’s $10 million. As early as October 2012 (immediately after the fourth trip to Borgata), Ivey knew that his edge sorting scheme was unmasked, with Crockford’s publicly withholding about $12 million in alleged winnings. There is no indication that Ivey did not prudently sock away Borgata’s $10 million, figuring that was the next shoe to drop.”

Klausner’s filing than goes on to detail Ivey’s recent activity on the high-stakes poker scene, by way of inferring that Ivey has plenty of wealth and is flaunting judicial process.

From the latest brief: “Ivey returned to play tournament poker this past May. He placed third in the Triton Series Short Deck Event in Montenegro, staking the $127,000 entry and taking home $2.2 million. In June 2018, Ivey claimed a late seat in the aptly named Super High Roller Bowl at the Aria Casino in Las Vegas. Although he did not place in the money, he had no problem coming up with the $300,000 entry. This month, Ivey was back at the World Series of Poker in Las Vegas, the poker world’s most prestigious series of events. His first event was the $100,000 No-Limit Hold’em High Roller (Event #5), which carries an entry fee of $100,000. He also participated in the $50,000 Poker Players Championship (Event #33), posting the $50,000 buy-in and winning $111,447, as well as the Main Event, posting the $10,000 entry fee and taking home $23,940.”

Klausner’s reply brief, which asks for a summary dismissal of the Ivey motion, then fires a healthy broadside: “Entrance fees for other poker tournaments are far less than $10,000 and one can play online poker with initial deposits of under $100. He is not in danger of being prevented from playing poker.”

Later, Klausner writes, “This case is about money, nothing more and nothing less. Ivey already has Borgata’s $10 million and he is clearly not in danger of going out of business. Defendants did not and cannot demonstrate irreparable harm as a matter of law. They are not entitled to a stay pending appeal.”

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