Cardoom International LLC v. Mark Scheinberg, et. al. (Ferguson, Chris)

NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT CHRIS FERGUSON, TO PLAINTIFF’S FIRST AMENDED COMPLAINT

by Ian Imrich
Contact

Plaintiff’s lawsuit is nothing more than a base attempt to capitalize on an indictment and civil forfeiture action that is wholly unrelated to the claims alleged. Plaintiff, Cardroom International LLC (“Plaintiff”), claims to be a Florida company that has created software for online poker and that maintains a free play online website. Plaintiff sued Pokerstars and Full Tilt Poker, two competitors in the online poker industry, and anyone that Plaintiff can tie to these two entities for antitrust and Civil RICO violations based on what Plaintiff claims is anticompetitive behavior.

Defendant Chris Ferguson (“Ferguson”) filed the instant Demurrer to Plaintiff’s operative First Amended Complaint (“FAC”) because the FAC fails to allege facts that constitute a cause of action. The FAC contains three causes of action: (1) Civil RICO; (2) antitrust violations under the Cartwright Act; and (3) antitrust violations under Florida law. The claims are all based on legal proceedings in the Southern District of New York relating to alleged online gambling and payment processing issues. However, neither the criminal indictment of certain individuals nor the civil proceedings have anything whatsoever to do with Plaintiff or with anticompetitive conduct.

Defendant Ferguson demurs to all three causes of action set forth in Plaintiff’s FAC. The Demurrer should be sustained as to the claim under Civil RICO because Plaintiff cannot set forth facts tying the alleged predicate acts to actionable harm. The alleged harm to Plaintiff’s ability to compete is far too attenuated for Plaintiff to present a viable claim. Second, the FAC is bereft of the sort of specific allegations required in a RICO claim, particularly with respect to the alleged predicate acts. Third, Plaintiff fails to plead a RICO enterprise.

Plaintiff’s antitrust claims (both of which are based on state laws that are modeled after the Sherman Act) are equally meritless. First, Plaintiff’s claim fails because it is based on alleged harm in a market that Plaintiff simultaneously alleges to be illegal. Plaintiff avers that the real money online poker market is illegal. Plaintiff cannot recover, however, for alleged antitrust violations because Plaintiff also could not profit from an illegal market.2 Second, Plaintiff fails to aver an antitrust injury; the FAC merely alleges that Plaintiff itself was harmed. But that is not enough. Plaintiff appears to be primarily engaged in the business of providing software for the free online poker market. (See FAC ¶ 1.) Third, to the extent that the claim concerns the free online poker market, that market is thriving. Indeed, a company referenced in the FAC, Zynga, is the world’s largest online poker company and continues to thrive. Fourth, it is nonsensical for Plaintiff to claim that alleged anticompetitive conduct in the real money online poker market somehow impacted its ability to compete in the free play poker market. Fifth, Plaintiff fails to allege an antitrust conspiracy. Not only is the FAC wholly conclusory, but the allegations of conspiracy fly in the face of common sense because Pokerstars and Full Tilt Poker are competitors. Fifth, Plaintiff fails to allege an actionable tying arrangement. Finally, Plaintiff also fails to allege facts specific to the individual Defendants.

Accordingly, Plaintiff fails to state facts that constitute a cause of action against Ferguson and the Demurrer should be sustained as to all causes of action and without leave to amend.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info: Legal Memoranda: Motion Addressed to Pleadings | State, 9th Circuit, California | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ian Imrich, Law Offices of Ian J. Imrich, APC | Attorney Advertising

Written by:

Ian Imrich
Contact
more
less

Law Offices of Ian J. Imrich, APC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!