A federal judge whose core opinion in a six-year legal battle began by quoting lyrics from a U2 song. A ruling that aligned with one side on the biggest claim, but ultimately went against that side, with somewhat of a stretch of the English language. A defendant who alleged that he was a victim of “free alcohol served by only the most curvaceous and voluptuous females in the industry.”
And those are but a few of the unique twists and turns in the Borgata vs. Phil Ivey saga that finally came to a preliminary end this summer when the two sides reached a settlement with undisclosed terms. The deal was finalized earlier this month.
In Part I of our postmortem published on Friday, we laid out in detail — mostly in Borgata’s own words — the stunning series of concessions made by Borgata that enabled Ivey and his playing partner to win $10 million in four visits to Borgata in 2012 while playing a game of luck called mini-baccarat.
The intrigue hardly ended there, however — hence this Part II.
The opinion — and the musical references
Let’s start with that October 2016 opinion by U.S. District Court of New Jersey Judge Noel Hillman, and that quote from U2’s song “Every Breaking Wave”:
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
Elsewhere in the 30-page ruling, Hillman echoed country music star Kenny Rogers: “There is always lady luck. But the principle that the odds are against you is literally true and eventually wins out. This is something every gambler knows.”
In that opinion, Hillman dismissed Borgata’s claim that Ivey and partner Cheung Yin Sun had committed fraud in their edge-sorting scheme (civil fraud, that is; there were never any claims of criminality from their actions).
After all, Borgata agreed to give Ivey his own private “pit area,” to provide dealers who spoke Mandarin Chinese fluently, to use a single eight-deck shoe of purple Gemaco Borgata playing cards throughout the sessions, to use an automatic card shuffling device, and to permit Sun to ask the dealer to reorient each card in a certain way.
Mixed bag for both Ivey and Borgata
“In this case, none of the actual rules of Baccarat were broken, and nothing except for Ivey and Sun’s motivation for certain requests was hidden from Borgata,” Hillman wrote. “Over four days and dozens of hours of play, observed by Borgata staff in person and on video surveillance, Ivey and Sun performed their edge sorting technique without Borgata determining that Ivey and Sun were violating Baccarat or casino rules.
“Therefore, the ultimate question is whether Ivey and Sun committed fraud by misrepresenting their true reasons for their five requests and card turning, even while none of the game’s rules had been technically broken. The Court finds that the answer to that question is no.
“Ivey and Sun did not defraud Borgata in the legal sense, just as a football team that runs a pass play instead of a running play does not defraud the other team.”
So does this mean Ivey and Sun won? They did not.
In the same decision, Hillman wrote: “The Court finds that Ivey and Sun breached their contract with Borgata to play Baccarat in compliance with the [state’s Casino Control Act] when they knowingly engaged in a scheme to create a set of marked cards and then used those marked cards to place bets based on the markings.”
Wait, “marked cards?” — how can you mark a card that, all parties agree, you never touched?
No touching — but no need, for judge
Hillman conceded that “marked cards” traditionally means physical altering of playing cards. But the judge also ruled that the scheme by Ivey and Sun — more specifics in this link — was tantamount to the same thing.
“Even though Ivey and Sun’s cunning and skill did not break the rules of Baccarat, what sets Ivey and Sun’s actions apart from deceitful maneuvers in other games is that those maneuvers broke the rules of gambling as defined in this state. … Ivey and Sun breached their primary obligation.”
That unusual linguistic interpretation left at least one gaming law expert giving Ivey a good chance of getting the case overturned on appeal.
Pending that appeal that now will not come, Ivey had been stalling on paying out the required $10 million.
Even with that core legal victory, Borgata did not get away from Hillman unscathed in the opinion:
“Borgata casts itself as an innocent victim who altruistically provided Ivey with his five requests, including allowing Sun to play with him, because it trusted Ivey.
“Borgata, however, is a for-profit business whose commodity is gambling, and whose methodology is to use the odds of casino games in its favor, among other techniques, to win as much money from its patrons as it can.
“Ivey is a professional gambler whose business is to play high-stakes casino games to win as much of the casino’s money as he can. … Borgata and Ivey had the same goal when they entered into their arrangement — to profit at the other’s expense. Trust is a misplaced sentiment in this context.”
Borgata also sought an “edge” of sorts?
In his sworn deposition in 2015, Ivey also addressed the issue of casinos having their own clever gambits.
“Anything they can do to give themselves an advantage,” Ivey testified. “Everyone knows that alcohol impairs your judgment, and they offer that, and they have the pretty cocktail waitresses and they’re all very flirty. They’re talking to you. … I got quite a few [phone] numbers.”
In an 18-page filing in 2015, Ivey and Sun’s attorneys questioned Borgata’s effort to avoid having their food-and-beverage manager deposed regarding casino strategy of handling “whales” — big-money gamblers such as Ivey.
This was an effort to counter Borgata’s claim that the edge sorting by Ivey and Sun constituted “an unfair advantage.” Instead, Ivey’s side asserted that “each side … utilizes its own devices to gain advantage over the other.”
That allegedly included “‘Borgata Babes’ [as the servers were called] cozying up to Ivey serving him coffee and alcoholic beverages while wearing skimpy outfits.”
Ivey and Sun summed up the essential mission of Borgata’s casino operation as “to encourage patrons to lose money by orchestrating a plethora of deceptive practices, such as loud noises and flashing lights on slot machines, hiding the clocks, making exit signs almost impossible to find, having cocktail waitresses wear revealing clothing, and comping copious amounts of alcohol to ‘loosen up’ their patrons.”
A judge wonders — and a movie looms
Judge Hillman wrote of those claims in 2015: “There is no doubt that much of the defendants’ characterization of the casino milieu is accurate, as tangential a defense as it may be.
“And there is also the begged and largely ignored question inherent in Plaintiff’s allegations of why the casino — especially its own card dealer — took so long to figure out the defendants’ alleged scheme.”
At least someone in authority raised the question in our Part I story linked above: “What was Borgata thinking?”
But now the saga comes to a close — until 2021 or 2022, when Awkwafina, star of the hit movie Crazy Rich Asians, wraps up her planned lead movie role as Ivey partner Sun.
There is little doubt that Sun’s one-of-a-kind backstory will produce a compelling film — and maybe even a sequel focused on Jersey guy Ivey himself.