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Litigation: Is poker gambling? One decision may answer that question

Judge looks at analysis of skill vs. chance in poker

You may have seen the stories in The New York Times, “Poker Is More a Game of Skill than of Chance, a Judge Rules” or the Wall Street Journal, “Poker is Not Gambling Under Federal Law.” So is this right? Have the courts really determined that poker is not gambling? Can your client open up that back room? No, not really.

In U.S. v. DiCristina, Mr. DiCristina was charged with operating an illegal gambling business including poker in Richmond County, N.Y. (Staten Island in New York City) under the Illegal Gambling Business Act (IGBA) for running No-Limit Texas Hold   ’em games.

The court also considered an amicus curiae brief submitted by the Poker Players Alliance, which cited a study finding that the majority of poker hands end when one player induces his opponents to fold. Since the cards are never revealed, the court concluded that the players decisions’ determined the outcome in the majority of hands.

The prosecution called Dr. David DeRosa, an economist, who generally had no “personal experience with poker;” nor had he “independently analyzed the game,” who nonetheless was qualified to give an opinion. His testimony was somewhat more sobering for those considering testing their own poker skills. He testified that since everyone who played poker played to win, and 95 percent of people who played were losers; therefore, poker had to be a game of chance—skill did not predominate for the average run of the mill player (or as they are known in poker argot, “suckers”).

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Neil Merkl

Neil Merkl is a partner in the New York office of Kelley Drye & Warren LLP. He focuses on complex commercial litigation. Some of the...

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Contributing Author

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Clifford Katz

Clifford Katz is an associate in the New York office of Kelley Drye & Warren LLP, in the litigation department.  He focuses on complex commercial...

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