Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

SpeakingThere is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting. 

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general  issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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In Lawsuit Over Allegedly Defective Baccarat Cards, Casino’s Damages Capped At Little More Than One Green Chip

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Chips (pd)The running battle between the Borgata and world renowned poker player Phil Ivey (among others) continues, and, fortunately, continues to be interesting. As I wrote about here and here, the Borgata sued Ivey and an associate, Cheng Yin Sun, after the two men won more than $9.6 million playing Baccarat at the casino. The Borgata claimed that the two men used an impermissible "edge sorting" scheme  to win the money, and therefore breached their implicit contract with the casino to abide by the terms of the Casino Control Act. The scheme relied, in part on an alleged defect in the playing cards, which Ivey and Sun knew about and exploited. The Third Circuit described it as follows:

The scheme is called "edge sorting," where Sun would identify minute asymmetries on the repeating diamond pattern on the backs of the playing cards to identify certain cards' values, and would have the dealer turn those strategically important cards so that they could be distinguished from all other cards in the deck. Ivey and Sun would then be able to see the leading edge of the first card in the shoe before it was dealt, giving them 'first card knowledge,' and Ivey would bet accordingly.

The Borgata successfully moved for summary judgment against Ivey and Sun, and was awarded more than $10 million in damages.

In addition to suing the players, the casino also sued the manufacturer of the cards that were used in the edge-sorting scheme. Both moved for summary judgment, and both motions were initially denied without prejudice. After the district court's decision on the casino's summary judgment motion against Ivey and Sun, both renewed their motions. The district court again denied both, but in doing so, threw cold water on the casino's claims against the manufacturer, including holding that the most the casino could recover against the manufacturer was $26.88, the cost of the allegedly defective cards.

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Phil Ivey Ordered to pay Borgata $10 million (presumably not in chips) for “Edge-Sorting” Scheme

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Chips and cardsA few weeks back, I wrote a post about a lawsuit between the Borgata Casino and world renowned poker player and gambler, Phil Ivey. In the lawsuit, the Borgata accused Ivey and a partner, Cheng Yin Sun, of engaging in an "edge sorting" scheme, which allowed them to shift the odds of Baccarat in their favor and win more than $9.6 million over several visits to the casino. The U.S. Court of Appeals for the Third Circuit described their actions as follows:

The scheme is called "edge sorting," where Sun would identify minute asymmetries on the repeating diamond pattern on the backs of the playing cards to identify certain cards' values, and would have the dealer turn those strategically important cards so that they could be distinguished from all other cards in the deck. Ivey and Sun would then be able to see the leading edge of the first card in the shoe before it was dealt, giving them 'first card knowledge,' and Ivey would bet accordingly.

The Borgata successful moved for summary judgment against both men. It held that casinos and players enter into an implicit contract to, among other things, abide by New Jersey's Casino Control Act ("CCA"). The court determined that, by employing the edge-sorting scheme, Ivey and Sun were using marked cards to play the game, which is prohibited by the CCA. As a result, they breached their contract with the casino. After finding in the casino's favor on liability, the court ordered supplemental briefing on damages. After considering those briefs, the court awarded the casino $10,130,000.

The court held that the appropriate method to assess damages was to restore the status quo ante — i.e., to return the parties to their positions prior to the formation of the contract. It held that Ivey's and Sun's use of marked cards violated the CCA and voided the contract between them and the casino. Because the contracts were void, restoring the parties to their pre-contract position was the appropriate remedy. The casino was, therefore, entitled to the return of all of Ivey's winnings, including the money he won playing craps because "those winnings were directly traceable to his prior Baccarat winnings — i.e., he used Baccarat winnings to play craps."

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“Marking” Cards At A Casino = Breach of Contract

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Casino (pd)If you have ever watched ESPN's coverage of the World Series of Poker then you have probably heard of Phil Ivey. For the uninitiated, he is, according to Wikipedia, "an American professional poker player who has won ten World Series of Poker bracelets,  one World Poker Tour title and appeared at nine World Poker Tour final tables . . . [and is] . . . regarded by numerous poker observers and contemporaries as the best all-around player in the world." He is also a party in an interesting lawsuit — Marina District Development Co., LLC v. Ivey — in which it was alleged that he "marked cards" during several Baccarat binges at the Borgata in Atlantic City, during which he won more than $9.6 million.

Before turning to the facts and law at issue in the Borgata case, a few comments on the opinion itself. First, Judge Hillman began his opinion by quoting from a relatively obscure U2 song, "Every Breaking Wave." The lyrics are appropriate — "Every breaking wave on the shore/Tells the next one 'there'll be one more'/Every gambler knows that to lose/Is what you're really there for" — but I thought it was an interesting choice given all the other possible gambling quotes from music and popular culture that were available to him. (I went for a much more obvious choice in my post the other day.) Second, the opinion begins with a succint explanation of gambling: noting that it is illegal, likely because of a "Judeo-Christian doctrine [] that gambling is an immoral vice;" but, "like most vices," states "allow, regulate, and tax some versions of it" under the theory that "[s]tate sanctioned gambling will be cleansed of its most unsavory elements and the games will be conducted under a defined set of polished rules overseen by an administrative body;" and finally that, under these "polished rules," the house always wins, "something every gambler knows." 

With this history in mind, the court turned to the facts of the case. Defendants were Ivey and Cheng Yin Sun, "high stakes' professional gamblers." In April 2012, Ivey contacted Borgata to set up a visit to play high-stakes Baccarat. He made five requests in advance of his visit: (1) a private "pit"; (2) a dealer who spoke Mandarin; (3) a guest (Sun) to sit with him at the table; (4) one 8-deck shoe of "purple Gemaco Borgata playing cards" to be used during the entire session; and (5) an automatic card shuffler to be used instead of a hand shuffle. Borgata agreed and Ivey wired a "front money" deposit of $1 million to the casino. After this initial visit, in which Ivey won $2.4 million, he and Sun came back several more times and played pursuant to the same conditions.

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A Look At What The Occupy Wall Street Protesters Are Really Occupying

by: Peter J. Gallagher

The Wall Street Joural Law Blog had an interesting article — "Private Owners Of Public Spaces In 'Occupy Wall Street's' Wake" — on the property that the so-called 99%ers are actually occupying in the Wall Street area. Parks like Zucotti Park are known as "privately owned public spaces" or POPS, which are "part of New York’s incentive zoning program, under which buildings are granted additional floor area or related waivers in exchange for providing these spaces."  (Zucotti Park, formerly known as Liberty Plaza Park, is actually named for the chairman of the entity that now owns the park.)  The owners of Zucotti Park claim that they have not been able to clean the park since the day before the protests began.  This has led some to call for the Department of City Planning to create new rules for POPS that would allow the private owners to close the parks at a set time, which Stephen Spinola, head of the Real Estate Board of New York, claims would “add to security and allow maintenance.”  As a practical matter, the article notes, this might be difficult because each of the 516 POPS in New York City has its own contract with the City and its own rules.  Moreover, changing the rules governing the City’s POPS to allow the private owners to control access, even for seemingly benign purposes, would surely spark protests of its own.