Judge Considers Motions to Dismiss in Postle Hearing
The US District Court civil case against Mike Postle regarding poker cheating allegations became more real yesterday in a hearing before Judge William B. Shubb. The hearing on the defendants’ motions to dismiss illuminated some of the primary arguments in the case and a bit of an uphill battle with regard to the complexities of poker.
Recent Motions to Dismiss
The defendants have been filing motions to dismiss since the case began. That is the nature of such cases and the jobs of attorneys.
When the case began with its first filing on October 8, poker player Veronica Brill and two dozen other plaintiffs alleged that Mike Postle cheated at poker games livestreamed from Stones Gambling Hall in Northern California. Mac VerStandig represented Brill and the other plaintiffs in filing a civil suit against Postle, Stones, and poker director Justin Kuraitis, complete with nine charges.
It took several months to serve Postle the papers, as he evaded document servers through the holidays and into 2020. Upon finally putting the charges into Postle’s hands and moving forward, the defendants filed their first motions to dismiss in early March. Postle followed several weeks later.
The plaintiffs responded by gathering more players and more counts. The amended complaint against the defendants brought nearly 90 players into the mix and a total of 11 charges. That happened on March 25.
Of course, the defendants then filed new motions to dismiss, lawyers doing so for Stones and Kuraitis and Postle attempting to do so for himself. (The latter resulted in the plaintiffs filing a motion for sanctions against Postle for seemingly using an attorney to help with his motions but claiming to represent himself. That motion remains before the court.)
As this month began, VerStandig filed formal oppositions to the motions to dismiss.
As the Postle/Stones litigation continues, we filed a brief in opposition to the casino’s motion to dismiss, earlier today. I’ll refrain from substantive comment other than to note I’ve long awaited an opportunity to quote George Devol in a brief. https://t.co/3QTPbyZAnS pic.twitter.com/Sau9IttTfG
— Mac VerStandig (@mac_verstandig) May 5, 2020
Replies in Support of Motions to Dismiss
Getting deep into the weeds of civil court processes, Stones and Kuraitis filed their latest replies on May 11 in the form of replies in support of their own motions to dismiss. These were essentially replies to the plaintiffs’ opposition to those motions.
Hang with me…
These documents are important because they were the bases for the May 18 hearing. Senior Judge William B. Shubb heard oral arguments by video (due to ongoing coronavirus precautions) in the afternoon hours of May 18 to consider the motions to dismiss.
The attorneys for Stones and Kuraitis boiled those documents down to the most important points for their oral arguments. Where is Postle? He was there…but…I’ll get to that in a bit.
Three Primary Arguments to Dismiss Complaint
The May 18 hearing helped to boil down some of the legal jargon – only some – into three primary reasons that Stones and Kuraitis want the complaint dismissed. Mark Mao represented King’s Casino Management (doing business as Stones Gambling Hall), and Richard Pachter represented Justin Kuraitis.
Mao broke down the three main points of the motion to dismiss: plaintiffs’ choices of pleading, odds not a basis for policy decisions, and precedent against this case.
Pleading Choices
Mao argued this point with a focus on one plaintiff claim, which appeared in the final pages of the plaintiffs’ opposition to the motion to dismiss. The plaintiffs wrote that they are prepared to amend their complaint to “allege the identity of Mr. Postle’s chief confederate by name and position.”
Mao said that if the plaintiffs know John Doe’s identity and it isn’t Kuraitis, they must name that confederate. However, if they have no proof and can’t acknowledge that the confederate is a King’s employee, it nullifies some of the plaintiffs’ claims.
In addition, Mao pointed to the lack of evidence provided for most of the charges, as well as the decision to avoid a class action lawsuit.
Policy Decisions Based on Odds
The second major point from Mao for Stones centered on the idea that the plaintiffs are basing their case on the likelihood or odds of winning poker hands, for which he stated there is no legal precedent. He repeatedly cited the Kelly case from 1999 (Kelly v. First Astri Corp.).
The judge, however, repeatedly challenged that precedent in that the case took place more than 20 years ago, and gambling laws have changed significantly since then. Pachter interjected to support Mao by saying that the Kelly precedent against the judicial resolution of gambling debts still stands, and Mao then cited other cases from 2007 to 2020 that indicated the unwillingness of courts to settle such debts.
Judge pushing back on it saying it was rooted in the former public policy against gambling as a whole (not the case in California anymore). "Why are they saying Kelly is still good law when gambling is now not against public policy."
— Chad Holloway (@ChadAHolloway) May 18, 2020
Judge Shubb again countered that the laws have changed. Further, he noted that casinos have regulatory remedies if players cheat them. Shouldn’t players be allowed the same type of remedies?
Gambling Losses too Speculative
This argument was brief, as Mao tried to note that the plaintiffs have muddied the waters with too many claims and ways to explain the players’ losses. He said the losses are too speculative for the lawsuit.
VerStandig then interjected with his response, as he began to explain how the plaintiffs determined the amounts of their losses based on rake, hand replays, etc. This is where the judge’s comments became concerning for the plaintiffs.
Judge Confused by Poker Terms and Methods
When VerStandig began to explain poker software and RFID involved in livestreaming poker games and the mapping from the production booth to Postle’s phone at the table for cheating purposes, the judge sounded confused. He noted that it sounded more complicated than the Houston Astros cheating scandal of 2019.
VerStandig tried to break it down by explaining the software program and the simple way of sharing information via technology.
Judge Shubb said that a case can’t have so many gambling claims with so many factors involved, which seems to involve speculation. When VerStandig insisted that the plaintiffs have details for all of the players and hands, the judge indicated again that he didn’t understand how any of that worked.
Again, VerStandig patiently tried to explain that Postle’s level of winning simply wasn’t possible. He insisted that they have proof of egregious cheating with a large sample size – every hand for every player, in fact – to prove their points.
Later, the judge returned to the point that the RICO (Racketeer Influenced and Corrupt Organizations Act), which is one of the counts in the complaint, requires a specific layout of damages. VerStandig again said that the rake and hand details do explain all of the losses.
However, the judge remained perplexed about hand odds and analysis, about how anyone could determine that a particular hand of poker could be seen as cheating. He didn’t use those exact words, but his questions and comments indicated a deep sense of confusion.
VerStandig assured the judge that it would all be explained in the discovery process. In addition, he said that the plaintiffs in this case are, in a way, representing the entire poker community. He said that this case moving forward will show the poker community that they have rights and are taken seriously.
Judge Shubb admitted that it was a strong point and seemed to concede that more information will come out in discovery.
Judge, who seemed skeptical, wanted to know if the Plaintiffs would be able to go back and determine things (i.e. rake, players, etc.).
VerStandig brings up the live streams.
VerStandig: "Yes, we can absolutely go back and replay all hands."
Judge seemed to perk up.
— Chad Holloway (@ChadAHolloway) May 18, 2020
Libel and Other Claims
One claim that VerStandig defended vehemently was Brill’s claim of libel against Stones. He noted that she risked her reputation as a player by putting her allegations into the public sphere. When Stones tweeted that those claims were unfounded, it implied that Brill’s claims were unfounded, sparking ridicule.
Mao returned to the need to know the confederate’s name to ensure that the claim is even valid, but the judge responded that this information will come out in discovery. He also noted that even if VerStandig named that person in an amended complaint, the process would then continue with another motion, then an opposition, and then another hearing. He seemed uninterested in lengthening that part of the process.
Pachter tried to conclude by saying that the Kelly precedent should stand. Further, he asserted that the plaintiffs’ complaints belong in front of the California legislature, not the court.
Where was Postle?
He was there. Mike Postle was there to represent himself.
Judge Shubb had concerns from the start of the hearing. He questioned Postle as to his familiarity with the motion for sanctions and the entirety of all sides of the case. Postle replied with a flimsy answer, to which the judge replied that he would hold Postle to a high standard as his own counsel.
Postle’s bottom line was: “I’ll do the best I can.”
Reassuring, no?
At one point after Mao and Pachter explained their arguments in support of their motions to dismiss, Judge Shubb asked Postle if he wanted to say anything.
“No,” Postle said. “I’m good for now.”
That was the extent of Postle’s contribution to the hearing. He didn’t defend his own motion to dismiss the complaints against him, nor did he defend himself against VerStandig’s claims in the hearing.
Stone wrapped for now. The judge offered Postle opportunity to speak.
Postle: "I'm good for now, your honor. Thank you."
It seems he is going to defer to the motion in itself, and to be honest, given the level of legal professionalism in this court is probably the wise move.
— Chad Holloway (@ChadAHolloway) May 18, 2020
Plaintiffs Got Some ‘Splainin’ to Do
While those in the poker community understand the plaintiffs’ case quite clearly, the judge does not. And it will be VerStandig’s job to explain it in A-B-C form.
The judge will not only need to understand the basics of poker hands but the odds involved in winning or losing each hand. VerStandig will need to explain the case for poker as a game of skill via those odds. Further, he will need to paint a very clear picture of how livestreamed poker works in the most basic way possible.
This is all new to the judge. Without a crystal-clear understanding of the game and the role of livestreaming in its evolution, Judge Shubb may not understand why these claims are valid and serious and why/how the plaintiffs deserve remedies.
In conclusion: Lawyers for Stones & Justin Kuraitis made their oral arguments, VerStandig made his on behalf of Plaintiffs, & Postle checked his option and will allow his written motion to speak for itself.
Judge Shubb will take all into consideration and rule at a future date.
— Chad Holloway (@ChadAHolloway) May 18, 2020
Disclaimer: This author is not a lawyer and has virtually zero qualifications to analyze legal documents or arguments. Nevertheless, she persists.
