Phil Ivey Countersues Borgata in Edge-Sorting Case
Two defendants in a multi-million-dollar lawsuit brought by the Borgata Hotel Casino & Spa over a controversial “edge sorting” system used to partially identify cards have fought back against the New Jersey casino giant and its parent company, Marina District Development Co., LLC. Professional poker player Phil Ivey and his gambling associate, Cheng Yin Sun, filed the countersuit on Wednesday in conjunction with the filing of their own defenses to hundreds of allegations made against them by the Borgata.
Citing the intentional destruction of decks used in the disputed mini-baccarat games, in which Ivey (with Sun as his assistant) won over $9.6 million, Ivey and Sun’s attorney has now filed a crossclaim against the Borgata. According to the claim, the Borgata committed “fraudulent concealment” by intentionally destroying the decks used in the games, which occurred in several special, high-end gaming sessions at the casino in late 2012.
According to the countersuit, the Borgata intentionally destroyed the decks so that Ivey and Sun — and co-defendant Gemaco, Inc., the manufacturer that produced the cards — would be unable to prove to the court that the decks in question did in fact meet the pre-establshed printing tolerances agreed upon in the contract between Gemaco and the Borgata.
The counterclaim on behalf of Ivey and Sun, filed by Ivey’s attorney, Louis M. Barbone, also alleges that all decks used in the games were inspected in advance by Borgata floor staff and were thus within the print tolerances. The sharp-eyed Sun, known throughout the casino-security world as the “Queen of Sorts,” was nonetheless able to deduce minute print variations on the cards. With that knowledge and through the employment of a complicated charade involving speaking in Mandarin Chinese to an unsuspecting dealer, who rotated some of the cards, Ivey and Sun were then able to profit more than $9.6 million over several days of play.
It should be noted that the co-defendant, Gemaco, has not filed a similar counterclaim as of this time. It is possible that potential business repercussions affecting not only the relationship between Gemaco and the Borgata, but possibly between Gemaco and all other live gaming venues, is one possible reason for the manufacturer’s hesitancy. However, the problem exploited by Ivey and Sun is due wholly to the suspect cards’ “full bleed” back design, and Gemaco is only one of several manufacturers who optionally provide such cards at casinos’ request.
Ivey and Sun, via their attorney’s filing, are also asking to be indemnified from any judgment should the final ruling in the case still go Borgata’s way. According to this part of the latest filing, the proximate cause, or fault, lies with Gemaco for having produced cards that were “defective” to begin with this — in this case, cards that could be identified from several feet away — whether or not the cards’ use was indeed approved in advance of the sessions by Borgata staffers.
The allegations that the Borgata intentionally destroyed the cards date largely to the first three of the four mini-baccarat sessions played by Ivey at the Borgata, in the spring and summer of 2012. It is not clear from the filing as to whether the actual cards used in the final mini-baccarat session of Ivey’s, from October of 2012, are still in existence.
About the alleged destruction of evidence, the counterclaim asserts:
…
Notwithstanding plaintiff’s specific inspection of all cards utilized by the plaintiff in April, May and July of 2012, plaintiff intentionally destroyed each and every card and deck of cards it produced for play to defendants Ivey and Sun for that entire five month period preceding defendants’ final play at the Borgata in October of 2012.
Borgata’s legal obligation was at all times, to maintain, preserve, sequester and disclose the evidence upon which it now prosecutes Ivey and Sun. Plaintiffs knew at all times relevant to this action that the actual playing cards utilized and which it held out to be in strict conformance with the rules and regulations of the game, were critically material evidence to defendants Ivey and Sun, in that the actual production of those playing cards would entirely eviscerate plaintiff’s claim that any cards were in fact “defective”.
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 defendants’ ability to prove the lack of any defective cards utilized by the plaintiff from April through July of 2012.
Attorneys for the Borgata have yet to respond to the crossclaim allegations put forth by Phil Ivey’s and Cheng Yin Sun’s attorney. The case is slowly moving forward to a probable jury trial, given the large amounts at stake.
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