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 Posted: Mon Jan 07, 2008 5:05 pm Post subject: Sandia Resort and Casino - Is it payback time in New Mexico? |
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Cisneros II:
I-gambling ads resolve as Microsoft, search engines settle with DoJ in Missouri
| Quote: | Postcrescent.com
Reg Wydeven column
Internet's infiltration creates more ways to get swindled
Jan. 5/08
View the DoJ press release of Dec. 19/07 and settlement agreements.
| Quote: | ... As a result of the recent U.S. Justice Department (DoJ) investigation, however, the Internet's three high rollers lost a bundle to the house. Microsoft, Yahoo and Google agreed to a settlement with the DOJ where the companies must pay $31.5 million as restitution for allowing online gambling Web sites to advertise on their search engines. Microsoft must contribute $21 million, Yahoo $7.5 million and Google $3 million to fund public service announcements warning the youth of America that online gambling is illegal in the U.S. In addition, Microsoft also will contribute $9 million to the International Center for Missing and Exploited Children.
The U.S. Attorney's office for the Eastern District of Missouri initiated the investigation into online gambling sites. The settlement resolves the DOJ's allegations that the Internet juggernauts profited from promoting online gambling on their Web sites between 1997 and 2007. According to industry analysts, of the more than $10 billion in wagers placed online each year, $4.2 billion came from gamblers in the United States. In addition to the advertisers, the DOJ also targeted the gambling Web sites. On top of the recent settlement, the DOJ recovered more than $40 million in forfeitures and back taxes from operators of the offshore gambling sites. The investigation also resulted in federal and grand juries returning numerous indictments for the online gambling operations.
... While online gambling is illegal, legalized gambling is sometimes no safer. Gary Hoffman recently sued the Indian Sandia Resort and Casino located in New Mexico for failing to pay his apparent $1.6 million jackpot. Hoffman was playing a "Mystical Mermaid" nickel slot machine when the device indicated he hit a jackpot. The casino refused to pay, claiming the machine malfunctioned and has a well-posted maximum payout limit of $2,500. Hoffman may never get his day in court, as American Indian tribes, as independent nations, have their own court systems and can only be sued in state courts under limited circumstances. When asked if Hoffman will prevail, most legal experts say, "Don't bet on it." (emphasis added)
Reg Wydeven is a partner with the Appleton-based law firm of McCarty Law LLP. He can be reached at pcbusiness@postcrescent.com. |
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What's that? U.S. tribal gaming operations are immune to prosecution?
| Quote: | ... Hoffman's lawyer, Sam Bregman: "It's our belief that they cheated Mr. Hoffman out of $1.6 million and now they're claiming they're above the law and I think that that's outrageous."
Sandia's lawyer, Paul Bardacke (former New Mexico Atty General): "This is a bogus lawsuit. He knew at the time that this was a malfunction and that this was an absurd and unjustified result. While the casino respects its customers, it's not going to pay bogus claims any time anyone threatens a lawsuit." Bardacke says the state-tribal compact that governs gambling in New Mexico supports his point of view that Hoffman's case can't be heard in state court.
In the compact, approved last year, tribes waived their right to not be sued in other jurisdictions— known as sovereign immunity— in the case of personal injuries and property damages that occur in their casinos. "This is a limited waiver and does not waive the tribe's immunity from suit for any other purpose," the compact says. Bardacke knows the compacts well because he was hired by the state of New Mexico to negotiate their details with the gambling tribes. He said he doesn't see any conflict between that role and his current one representing Sandia. "I was representing the state, and the state has no involvement in this matter." (emphasis added)
Bardacke said a February New Mexico Supreme Court decision regarding claims against Isleta and Santa Clara pueblo's casinos upheld limiting state court lawsuits against the pueblos to personal injuries. "If this machine fell over and hit Mr. Hoffman, then we would have no argument about being in state court," Bardacke said.
Bregman said he has read the compact language but doesn't agree with it.
"We, as a nation, we have settled our disputes in a courtroom and to say that he cannot have the benefit of a courtroom despite the fact that this is not a Native American traditional activity, it's just simply not fair," Bregman said. "He certainly should be able to avail himself of the laws of the state of New Mexico." Bregman said courts have recognized a tribe's sovereign immunity defense in issues dealing with their lands and natural resources, but not in relation to nontraditional ventures. He also contends that it is unreasonable for the casino to claim exception from state or federal courts because it pays the state a percentage of its winnings and pays taxes to the federal government. "They can't now all of a sudden say that this is a complete sovereign issue when they are intertwined extensively with the state and federal government," Bregman said. (From MySpace post dated Oct. 22/07, quoting the story, Sandia Jackpot Fight Sets Off Legal Row, by Leslie Linthicum in the Albuquerque Journal) |
Here's the clause purporting to grant that immunity:
| Quote: | D. Specific Waiver of Immunity and Choice of Law.
The Tribe, by entering into this Compact and agreeing to the provisions of this section, waives its defense of sovereign immunity in connection with any claims for compensatory damages for bodily injury or property damage up to the amount of ten million dollars ($10,000,000) per occurrence asserted as provided in this section. This is a limited waiver and does not waive the Tribe's immunity from suit for any other purpose. The Tribe shall ensure that a policy of insurance that it acquires to fulfill the requirements of this section shall include a provision under which the insurer agrees not to assert the defense of sovereign immunity on behalf of the insured, up to the limits of liability set forth in this Paragraph. The Tribe agrees that in any claim brought under the provisions of this Section, New Mexico law shall govern the substantive rights of the claimant, and shall be applied, as applicable, by the forum in which the claim is heard, except that the tribal court may but shall not be required to apply New Mexico law to a claim brought by a member of the Tribe. (p. 17 of 31 of 2007 Amendments to the 2001 Tribal-State Class III Gaming Compact) |
According to the New Mexico Gaming Control Board,
| Quote: | | Quote: | 2005 The Pueblo of Pojoaque settles disputes with the State of New Mexico and enters into a 2001 gaming compact.
2007 Amendments to the 2001 Tribal-State Class III Gaming Compact are negotiated and approved by the New Mexico State legislature. Nine gaming tribes sign the 2007 amendments, including the Pueblos of Isleta, Laguna, Sandia, San Felipe, Santa Ana, Santa Clara, Taos and Tesuque, and Ohkay Owingeh. Two non-gaming tribes, the Pueblos of Nambe and Picuris, also sign the 2007 amendments. |
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So have I no means of enforcing the payout of my winnings at tribal casinos?
| Quote: | Casino gambling web.com
Seminole Hard Rock Casino Finally Gives Freddy Howard His Money
By Larry Rutherford
Sept. 20/06
| Quote: | Freddy Howard won more than $259,000 after he swiped his players club card on one of the Hollywood Seminole Hard Rock Casino slot machines.
The Hard Rock made a big deal the night Freddy Howard won the money. Bells and whistles flashed and rang and Mr. Howard was presented with a lifesize check worth more than $259,000. Then the casino claimed the swipe that said he won was actually a computer error, and they took away the large jackpot money from Freddy before he had a chance to cash the check. Freddy hired lawyers ... finally Freddy Howard received his life-changing check.
The casino announced in a press conference earlier today that Freddy actually did not win the money, but that they would pay him his money anyway. (emphasis added)
Via phone Freddy said he was happy about the Seminole's change of heart, but he was advised not to say anymore by his lawyers. |
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| Quote: | New Times Broward-Palm Beach
It's a Hard Rock life. Flush with American
dollars, the tribe either plays by U.S. rules —
or risks losing it all
By Thomas Francis
April 12/07
| Quote: | ... It turned out that the Player's Club Card he swiped was not his (Howard's) but his father's. The same computer screen that called him a "progressive winner" also named his prize as "$0." What's more, an independent firm, Gaming Laboratories International, analyzed the kiosk and confirmed the casino's ruling of computer error.
As (Howard's attorney Keith R.) Herbert tells it, the story became a phenomenon only through the artful efforts of Howard, who had learned a bit about media savvy during his career as a voice-over specialist. After Howard lost his jackpot, he told his story to friends in the Spanish-speaking media. From there, the story jumped to the English-speaking press, TV, and radio. "Before [Howard] went to the media, [the Seminoles] wouldn't even acknowledge our letters," Herbert says. And after the media got interested? "We went right to the top."
Herbert never made a single legal filing — he didn't have a case. "The only reason [the out-of-court settlement] happened here, I'm convinced, is that the media took the story," he says. .
With Howard's case, the Seminoles moved swiftly and shrewdly. Had the controversy lingered, it may have led to discussions about how, if it wanted, the casino could cheat any jackpot winner, legitimate or not.
Although the U.S. government's National Indian Gaming Commission has regulatory power over Indian casinos, it doesn't have nearly the manpower necessary to keep watch over the roughly 400 Indian casinos whose total revenue pushes $25 billion. So the commission entrusts the Seminole Tribe to be its own regulator. Casino officers operate under a fraction of the state oversight they do in Las Vegas.
No, the tribe doesn't cheat its gamblers because, ostensibly, a few big winners are good for business — they give hope to the majority, who lose. Rumors of cheating — like those created by Howard's experience — are nearly as disastrous to the casino's image as actual evidence of it. (emphasis added) |
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Link to this entry
http://pokerpulse.com/legal/viewtopic.php?p=515#515 |
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