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Player Lawsuit Against Borgata No Class Action—Yet

Wendeen H. Eolis

Wendeen H. Eolis

by Wendeen H. Eolis

It has been one full month since the New Jersey Division of Gaming Enforcement (DGE) ordered the Borgata Casino to cancel the opening event of its annual Winter Poker Open, but New Jersey regulators have yet to reach a conclusion to their investigation of bogus chips that were introduced into the competition. The extended delay has led to escalating agitation among players according to Bruce Licausi attorney for Jeffrey Musterel, plaintiff in a lawsuit filed last Friday against the Borgata.

Musterel is a recreational poker player from Egg Harbor Township, near Atlantic City. He is among the 4000+ players who participated in the tournament, but failed to cash in the tainted competition. The primary thrust of the legal papers is that the Borgata failed in its obligations to adequately protect the playing field, adequately.

Who's on First?

None of the final 27 players (all of whom were “in the money”), have been paid any portion of the allocated prize pool. Borgata officials have met with these players and have assured them of Borgata’s plans that they are treated fairly.

Almost all of the players “in the money” down to 27th place—the point at which the tournament was aborted--received their share of prize monies before the tournament was cancelled. By all accounts from players in this group, they have no gripes. Several lawyers consulted for this article say paid players have no worries as to their rights to keep the monies they have received. .  

A few players who reached the money did not pick up their winnings in a timely manner—notably including 28th place finisher, Men (“the Master”) Nguyen. They are expected to receive their monies as soon as the frozen monies are released for distribution, according to tournament officials.  

The rest of the Winter Open tournament series were permitted to go forward, once all of the chips were examined and found to be bona fide tournament currency. There were record breaking fields for many of the remaining events. The WPT Borgata Open Championship was the 2nd largest field in the Tour’s history.

The big question about the compromised event, these days, focuses on the 4000+ participants who did not cash in the event. Their fate as to possible refunds of buy-ins, buy-in fees, and incidental expenses has thus far been left in limbo by both DGE and the Borgata. The casino says it is precluded from responding to questions regarding money matters during the DGE’s active investigation and deliberations on the casino’s obligations.

From Tournament Cancellation to Player Lawsuit

At the time the tournament was cancelled, an estimated 1.4 million dollars in unpaid prize monies was frozen and placed in a trust on orders of the DGE, pending its further resolution. According to Licausi and several players the DGE’s unexplained and continuing delay, in reaching an ultimate resolution on the Borgata’s obligations, has amplified player outrage.

The complaint alleges that players were entitled to a properly protected tournament environment. Legal pundits raise questions as to whether bettors have the right to remedies as pleaded in Licausi’s papers, indicating such assertions could become hotly contested.

The case, if won (by the plaintiff or as a class action suit), would be unprecedented, say several lawyers who specialize in the gaming industry in different parts of the country. Licausi is not deterred in his pursuit of making things right for his client. He insists, he seeks justice for all players affected by “Chipgate.”

The Lawsuit: Musterel v. Marina District Finance Co. Inc.

The lawsuit notably accuses the Borgata of negligence and fraud, asserting among other forms of relief, that players have rights to full refunds of their buy-ins, fees and related travel and lodging disbursements.

The suit claims at its core that the "integrity of the event was compromised." On this point there seems to be no dispute between the parties. A key issue to be resolved, however, is that of liability on the part of the Borgata.

The complaint also alleges a panoply of other legal infractions. Licausi ticks off a list of them: violations of the New Jersey Consumer Fraud Act, breach of contract, unjust enrichment, breach of implied good faith and fair dealing, promissory estoppel, and equitable estoppel.

Additionally, as is customary in these types of cases, the suit also seeks compensatory damages, treble damages and attorney fees.

The action was filed in New Jersey State Court (rather than federal court where class actions are generally taken). Licausi believes the case should reside in Atlantic County. He seeks to obtain certification of a class action lawsuit on behalf of all Borgata patrons who bought into the “Big Stack No-Limit Hold ’em” two million dollar guaranteed competition. Licausi notes, “My practice is not just about money; I like intellectually challenging cases, and matters with social value.”

Licausi, “Renaissance Lawyer”

Licausi is from Raritan New Jersey. He has more than 30 years of legal practice under his belt. At lawyersattorneysguide.com he is listed as a personal injury lawyer with a practice that promises “no fee unless we settle your case.”

A class action suit (which is his intention in this case), typically operates under this protocol for payment of lawyers’ fees. (Clients are sometimes surprised to learn of substantial expenses for which they have responsibility during or at the end of the case).

According to lawyers.com, Licausi’s “peer rating” is “BV Distinguished” 4.4/5.0. “(The highest rating is “AV Pre-eminent which reflects a score of 4.5/5.0 Licausi lists himself as experienced in commercial and corporate law matters as well as litigation. He does not provide an individual or professional website to describe his practice.

The Musterel v. Marina District Finance Co. Inc. (Borgata) case would surely put his name on the map in the gaming industry if he scores significant points in his pleadings. A victory could tilt licensed public casinos on their collective head.

Licausi-Peach Team

Licausi is working on this case with Randall J. Peach of Bridgewater, New Jersey. Peach is also a seasoned solo practitioner. He earned his JD degree from Seton Hall University where he was elected to Law Review. After working for others for approximately a decade, he founded the Law Offices of Randall J. Peach in 2005. His practice involves business law and litigation with additional expertise in family law /individual rights.

The two lawyers have paired up previously. In a notable child pornography case last year, New Jersey v. Blaine F. Scoles (which landed up in the New Jersey State Supreme Court), the Licausi/Peach team appealed a trial court decision that had allowed prosecutors to limit their access to certain evidence. The prodigious duo succeeded in convincing the high court to vacate a protective order that hindered the defense. The case was remanded back to the trial court for further proceedings.

Complications

Musterel’s lawsuit has a docket number, but it is quite a trek to retrieve the complaint through the New Jersey Court System’s public access website. Licausi discussed the complaint in an hour long interview. He has provided PPN with a copy for further review. Additional analysis will be provided online later this week.

According to Licausi the casino “knew their security and preventative measures to be inadequate to detect, let alone prevent, even an unsophisticated attempt by a player to compromise the event by introducing substantial numbers of counterfeit chips into play.” This allegation as well as others in the complaint will undoubtedly be refuted vigorously by the Borgata.

One area of dispute that is sure to intrigue all players is the matter of the time line in the events that unfolded. Based on differing news reports and clarifications of others, including this reporter, the renditions of the bizarre caper, even among sources close to the investigation, vary.

Particularly fuzzy are reports as to which player(s) turned over to tournament officials any suspicious chips that were ultimately determined to be counterfeits.

Conundrums Abound!

Synthesizing all of the reports received by this reporter, it would appear that the Borgata’s suspicions of a tainted tournament evolved into a well-informed conclusion the morning of the third scheduled day of play. The DGE suspended the tournament that day and cancelled it a day later.

Last Friday following the filing of the lawsuit by Musterel, the DGE said it expected to complete its investigation, shortly. For now, it is a continued guessing game.

As the litigation moves ahead, casinos and poker players may be given much food for thought about the duties of poker management and the efficacy of a casino taking responsibility for insuring a risk –free tournament environment for their bettors.  

Editor’s Note: Wendeen Eolis is CEO of EOLIS International Group, a legal consultancy with a specialty in the gaming space. She was the first woman to cash in the main event at the World Series of Poker. Her wikipedia listing, and press clip index set forth her credentials in business, politics and gaming. This article is her exclusive property. She can be reached at:eolis@eolis.comTwitter Facebook and LinkedIn or at the website: www.eolis.com.

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Wendeen H. Eolis

World Series of Poker


September 4, 2014 - 10:31am
August 28, 2014 - 9:45am
August 25, 2014 - 9:44am
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