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At the end of September, the Interactive Media Entertainment and Gaming Association (iMEGA) filed an appeal to the Third Circuit in its bid to overturn the Unlawful Internet Gambling Enforcement Act (UIGEA) by declaring it to be unconstitutional. It’s one of the several avenues that industry organizations have been pursuing to achieve legalized and regulated online poker in the U.S. The industry has been in flux ever since the UIGEA was signed into law just over two years ago on Friday, October 13, 2006 by U.S. President George W. Bush. iMEGA President Ed Leyden, who is also one of the main figures in the Kentucky internet gambling quarrel, sat down with PocketFives.com to review the Government’s response.

As you might expect in this type of case, the Government’s brief bit into one of iMEGA’s chief arguments, which was that the UIGEA is “unconstitutionally vague.” The response issued by the Department of Justice claims that iMEGA “did not advance its vagueness in the district court, and that claim is therefore waived.” It also states that the UIGEA is “perfectly clear” in that it forbids transactions involving illegal internet gambling.

According to Leyden, the unconstitutionally vague argument surrounds due process, which he believes iMEGA articulated clearly. He told Poker News Daily that lower court Judge Mary Cooper “recognized that we brought up due process. It’s in the way one’s due process laws can be violated, so we’re befuddled why the Government doesn’t recognize it. The Appeals Court will ultimately recognize that.” iMEGA Chairman Joe Brennan added in a statement posted on the organization’s website, “It’s hard to believe the government is making that claim, when Judge Cooper herself addressed our arguments regarding ‘void for vagueness’ in her decision.”

The Federal Government filed its brief about 30 days after iMEGA appealed. The organization now has 15 days to respond. A three judge appeals panel will then ultimately determine the outcome of the case. Leyden explained the process of creating a response to the Government’s brief: “You never know what the Government is going to do. In order to do this properly, you have to address respect to what came down the pipeline. The counterparty’s job is to point out of the foibles in our document. We don’t think they hit the mark, but it’s incumbent upon us, on behalf of our clients, to clarify what they brought up.”

Despite Judge Cooper granting iMEGA standing to sue, the brief filed by the Government disagreed with that assertion as well. It reads, “Appellant lacks standing to represent unnamed individual gamblers who are not parties to this lawsuit. Even if it did have standing, however, its privacy claims… lack merit.”

The vagueness of the UIGEA is also addressed by the government in several places in the 24 page brief. The UIGEA states that “unlawful internet gambling” transactions are prohibited. However, no definition of what that term meant was ever prescribed, instead deferring to existing laws. The Government’s claim states, “Even assuming that some state gambling laws are so vague as to make it impossible to ascertain which types of gambling they prescribe, that would indicate the vagueness of the state enactments – not the Act at issue here.”

Meanwhile, iMEGA is also one of the organizations heading up the fight against Kentucky Governor Steve Beshear in his bid to seek the forfeiture of 141 internet gambling domain names. A statement posted on its website ensures that neither front will be undermanned: “Despite devoting considerable time and resources in leading the challenge to block the commonwealth of Kentucky’s recent attempt to seize 141 domain names from their rights holders, iMEGA’s legal team feels they are more than capable of pursuing its UIGEA and Kentucky challenges at the same time.”

Jennifer Brislin, Director of Communications for the Kentucky Justice and Public Safety Cabinet, whose Secretary, Michael Brown, is heading the State’s arguments, told PocketFives.com, “We feel very confident in Judge Wingate’s ruling. We’ll see where we go from here. We’re prepared to go with whatever the court decides.” In Kentucky, a final forfeiture hearing is scheduled for December 3rd. However, both iMEGA and the Interactive Gaming Council (IGC) have separately filed writs to the state’s Court of Appeals to intervene. That three judge panel is slated to meet on November 18th.

Stay tuned to PocketFives.com for the latest from the front lines in Kentucky and the Third Circuit Court of Appeals. We’d like to thank Leyden and Brislin for taking time out of their busy schedules to talk with us.

To read the Government's brief, click here.


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