Professional poker player Phil Ivey and his gambling accomplice, Cheng Yin Sun, have filed a countersuit against the Marina District Development Co., LLC, parent company of the Borgata Hotel Casino & Spa, in conjunction with their defenses filed in the original “edge sorting” lawsuit brought against them by the Borgata.
The saga dates back to April 2012 when Ivey contacted the Borgata, telling the casino he was interested in participating in high stakes baccarat sessions there. He had a set of particular requests, though, that needed to be granted before he would commit to playing. Saying that he was superstitious, Ivey asked for a private gaming area, a dealer who spoke Mandarin Chinese, permission to have a companion with him (Cheng Yin Sun), an automatic card shuffler, and an eight-deck shoe of purple Gemaco playing cards. The Borgata accepted his requests and set the maximum bet at $50,000. Ivey deposited $1 million with the Borgata before he arrived.
On April 11th, Ivey won $2.416 million at the baccarat tables and won another $1.597 when he returned in May. He went back in July, having gotten the casino to double the max bet, and won $4.788 million more. Ivey returned for a fourth round in October 2012, winning $825,000.
As it turned out, Ivey’s requests were not based on superstition, but rather a specific plan devised in order to give him an advantage. Ivey knew that those purple Gemaco cards were often slightly miscut, making the pattern on their backs asymmetrical. After certain important cards were dealt, Sun asked the dealer to turn them 180 degrees before returning them to the deck. Because the automatic card shufflers did not change the cards’ orientation, Ivey and Sun were then able to spot the key cards before they came off the deck the next time because of how the patterns on the back looked. The differences in the card backs were subtle, yet perceptible to someone with a keen eye. This “edge sorting” gave Ivey and Sun a significant advantage.
The Borgata filed a lawsuit against Ivey and Sun in April 2014, accusing them of Breach of Contract, Breach of Implied Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Fraudulent Inducement, Fraud, and more. Gemaco was also sued. Ivey filed a motion to dismiss in July 2014, but in March 2015, a judge rejected that motion.
Now Ivey and Sun are countersuing the Borgata, saying the casino committed “fraudulent concealment” by intentionally destroying the cards that were used the baccarat games so that the defendants (including Gemaco) couldn’t prove that the cards met the pre-set standards established by the Borgata and the card manufacturer.
The specific wording in the countersuit includes the following:
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 the defendants’ ability to prove the lack of any defective cards utilized by the plaintiff from April through July of 2012.
Plaintiff’s intentional misconduct constitutes fraudulent concealment by way of evidence spoliation, and defendants have and are proximately damaged in the instant action by having to rely upon an evidential record that cannot duplicate or illustrate the actual playing cards utilized from April through July of 2012 which were in precise conformance with industry standards and tolerances known and accepted by the plaintiff.
