I thought this was an interesting and smart counterclaim on the part of Phil Ivey. The Borgata may have chosen the wrong person to mess with.
Law360, New York (July 27, 2015, 4:20 PM ET) -- A pair of professional pokers players accused of exploiting defective playing cards to cheat Atlantic City’s Borgata Hotel Casino & Spa out of $9.6 million, told a New Jersey federal judge last week that the casino knew the cards were defective and intentionally destroyed evidence.
Professional poker player Phil Ivey and a partner allegedly used a technique known as “edge-sorting” to gain the unfair advantage over Atlantic City’s Borgata, raking in $9.6 million. (Credit: AP)
Phillip Ivey and Cheng Yin Sun filed an answer and counterclaim against the casino July 22, seeking to have the claims against them dismissed and to be awarded damages and attorneys' fees for the defense of what they claim is a “frivolous” lawsuit. The players, who are accused of using inconsistent markings on the backs of cards to cheat at baccarat, said the casino knew the cards contained defects but chose to use them anyway.
“Plaintiff’s claims against defendants were waived knowingly, intelligently and voluntarily by the plaintiff, given plaintiff’s knowledge that each deck of playing cards contained industry tolerances with regard to the design backs of its playing cards, and plaintiff did nonetheless and with complete knowledge of those variances place those cards into play on each and every trip of defendants’ play,” the answer and counterclaim said.
Ivey and Sun also said the casino inspected the cards used during the games they allegedly won by cheating, but rather than preserve the decks for evidence, the casino intentionally destroyed the cards.
“Notwithstanding plaintiff’s absolute legal obligation and duty to maintain, preserve and present that evidence in the instant litigation, knowing that defendants could not reasonably obtain access to that very evidence from any other source, plaintiff has intentionally destroyed all such evidence for the purpose of obstructing, disrupting and eviscerating the defendants’ ability to prove the lack of any defective cards utilized by the plaintiff from April through July of 2012,” they wrote.
The pair included counterclaims against the casino for fraudulent concealment by way of intentional spoliation of evidence and negligent spoliation of evidence. The players also wrote that if anyone should be held liable for the claims made by Borgota, it should be Gemaco Inc., the company that makes the cards and is also named as a defendant in the suit.
“While defendants Ivey and Sun deny any and all liability, obligation or damage to the plaintiff, and deny any negligence in any regard to the plaintiff, they assert that their negligence, if any, was passive, vicarious and imputed, whereas the negligence of co-defendant Gemaco Inc., was active and primary.”
According to the complaint, Ivey and Sun — a professional gambler who has been banned from several casinos around the world and who accompanied Ivey during all four sessions — used a technique known as “edge-sorting” to gain the unfair advantage over the casino. Because the Gemaco cards were not cut symmetrically during the manufacturing process, Ivey and Sun were able to exploit the manufacturing defects to “mark” the cards without actually touching or defacing them.
Mini Baccarat is a game of chance in which players bet on the relative value of two hands of two cards each before the hands are dealt or the cards are revealed, according to the complaint. The game is generally played with six or eight decks of cards placed into a dealing “shoe,” and its object is to bet on the hand that will have a total value closest to nine. If a player knows the value of the first card in the shoe before it’s dealt, the player has a significant advantage over the house, the complaint said.
The casino says Ivey negotiated special arrangements to play the game during four sessions in 2012, under the pretext for some of the requests that he was superstitious. The pair used the accommodations — including using an automatic card shuffling device, having Sun as a guest at the table while Ivey played and being provided with one eight-deck shoe of purple Gemaco Borgata playing cards — to “turn” strategically important cards so that they could be distinguished from other cards in the deck, Borgata said.
Their manipulative scheme changed the overall odds of the game from about a 1.06 house advantage to about a 6.765 advantage for Ivey, Borgata said.
The suit survived a dismissal bid earlier this year.
An attorney for Ivey and Sun could not be reached for comment Monday. Gemaco and an attorney for the Borgata could also not be reached for comment.
Ivey and Sun are represented by Edwin J. Jacobs Jr. and Louis M. Barbone of Jacobs & Barbone PA.
Borgata is represented by Jeremy M. Klausner of Agostino and Associates
So is Ivey permanently done with playing in non poker games in the casino? During all this legal shenanigans he was forced to admit that he was an AP. Now all the casinos know.
Oct 19, 2009
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spoliation of evidence is a rather weak claim as destruction of the cards is the industry standard and the court and experts can easily be supplied with other decks from the manufacturer at that time all identical to the decks in question.
the main thrust of the argument is that the casino actively made major changes to the game whereas he merely took advantage of a well known in the industry condition.
Have never understood why the casino(s if we include the one in London) allowed the dealer to turn the high value cards when requested.