US Poker’ Black Friday: More To Come
By Jeremy D. Frey, Pepper Hamilton LLP (freyj [at]
and Donald S. Richards, Investigations International, Inc (drichards [at]
This article first appeared on eGaming Review
It has been about a month since Black Friday. It seems just about everything that needs to be said about the meaning of the U.S. Black Friday Indictment has been said. Even so, we can’t agree with Patrick Fleming, counsel for the U.S. Poker Players Alliance, that it’s time to move on. For starters, what lies ahead in the court case alone promises to be a spectacle.

In the federal court proceedings in New York, the judge has tentatively scheduled the Black Friday case for trial in March 2012. This is probably not a realistic trial date, however, because none of the six principal defendants have yet appeared in court. With a month having passed since the unsealing of the superseding Black Friday Indictment, there are indications that prosecutors are getting anxious about the slow course of the case. The prosecution’s impatience with locating the Absolute Poker defendants was made apparent with reported recent searches of the corporate owner of Absolute Poker in Costa Rica.
In any event, March 2012 seems an unrealistic trial date because the Unlawful Internet Gambling Enforcement Act (UIGEA) counts in the Indictment threaten to turn this case into a hot mess. 

The UIGEA has had scant judicial review or interpretation to date. The law is so muddled that even the U.S. Attorney General, in comments before the House Judiciary Committee on May 3, 2011, seemingly invited Congress to revisit and clarify the statute.
Since UIGEA, and the related counts charging violations of the Illegal Gambling Business Act, incorporate state criminal law, questions abound about whether New York law and (in the vague phrasing of the indictment) “the laws of the other states” prohibit internet peer-to-peer poker. Under U.S. procedure, federal courts presented with issues of state law can certify the question to the respective state courts whose laws are at issue. 
Alternatively, the federal court can rule on the interpretation of the various state laws.
Regardless of the forum, all these procedures and hearings will take considerable time. The court (or courts) will need to determine whether internet peer-to-peer poker is a game of skill or chance under applicable state law standards, which vary. These issues will likely turn on expert testimony and elaborate statistical analysis. The Black Friday case has the prospect of turning into a multi-year thralldom. That is without even considering the delay that may occur as a result of potential extradition proceedings.
To use baseball vernacular, even though we have only had the first pitch, it looks like we are already heading for extra innings.