of your honors the defendants in this case argued at the time of the twelve b six motion in the very beginning in march of two thousand and fifteen that there was illegality which prohibited the complaint to move forward it is absolutely the war in new jersey that d all gambling is illegal believe it or not this statute is to a forty dash one and he wager any bets any gambling whatsoever is prohibited in the state of new jersey yet there is an exception and the exception under the new jersey statute is the casino control act and back in the casino control act it is statute five colin twelve bashed one hundred and twenty four and i submit that that statute lays out precisely what law is applicable to this case in that statute the didn't ask you just to clear up something and i think it's clear from the record the parties agree that there is a contract that correct sort to play those terms went to the conduct of the game itself phil ivey requested only the use of a daks of purple jamaica applying cards he requested a private pit he requested the presence of a that spoke mandarin chinese so the requests made by phil ivey were all granted by the borgata to that extent there was an agreement other than the agreement and there were other terms for example that were gonna require it if you're don't like the creation so where's the sword here the only sort of comes in the fact that every time somebody walks into a casino or gaming house in plays there is a contract but the contract is clearly one governed by the rules of the game the contract is statutorily imposed in created so the only real the contract is statutorily imposed and created i don't understand what you mean i mean under the rules of the casino control act every game be played pursuant to the rules of the division and if it's not it's a breach of contract yes you argued in your brief in this case that to say that would be creating a private right of action under the casino control act if you your brief said that it can't be that that think that the rules are part of a contract or else you are saying there's a private right of action and i was that's in your brief that's now you're you're saying something different you're saying that it is the pick that the rules are part of the contract so that there can be a breach of contract suit maintained to crisp respectfully was what i said in the brief was with regard to whether or not there's a private cause of action i argued as the law has been clearly established that if the breach we're talking about of the violation of the use of the rules and regulations of the game that it is seeking a civil cause of term of the contract i believe it's an implied term there are people who walk into the casino i play a game and somehow the game violates the the casino control act i can be sued for and i  do that i can be sued for breach of contract no big question would become whether or not you are suing in order to correct would you feel was a violation of yeah ok if i did that then but doesn't that then create a private attempting to create a private cause of action and the law and you said on page twenty the law doesn't and graft common law contract rules on gates of chance that's just in your brief i'm just going i'm just very curious as to your change of view well judge i don't believe in changing view i believe what i'm saying is this i'm saying obviously in the contents of a casino game it is a contract but what i'm also saying the parties are not free to contract to whatever degree they wish on the terms of that contract the contractual terms governing gambling are present and the contractual terms present or the rules of the game mean you cannot simply agree or were god and i view breed here to play this game with only eight backs of purple cards and use an automatic shuffling machine aren't that's a different that's a different issue now getting into the authorization of the case but not i mean when i have a contract i contract with reference to existing drools obviously if i'm doing something that renders what i'm doing invalid by law but the fact that you're saying that these rules are incorporated as part of the contract is is news to me i'm simply saying what i think the statute sads which is if a game is going to be authorized in the state in new jersey an exception to the general rule galaxy the game itself must be an authorized game and the game must be played in an authorized manner all right that's a different issue and then you're saying this wasn't played an authorized manner because they used a text when they're supposed to use twelve and therefore there's a statute of limitations of six months that where you're going with this that's why i'm going with that's i'm going with this is the same place this case the regulation that issue is plain and clear in that regulation it says shall is says shall when you're using an automatic shuffle machine there's no dispute of the facts the facts here are quite simply phil ivey requested for go agree there's only one licensee in that equation the licensee was the borgata the regatta was required to follow the regulation of the game with regard to any baccarat clearly unauthorized game but that regulation required particular terms she was an identified at the time you made a request by did your argument is part of the contract great if you guys have a contract that included the terms of the casino control act because they're implied into every contract that touches upon the subject of gaming and then you offer tom that were inconsistent with casino control act and that's what leads to the statute of limitations well that's exactly what happened whether or not phil ivey knew the particular regulation governing mini baccarat the number of blacks required i don't know he was record is the record so i guess we'll hear from the god if they contend that any of them were right as far as the record is concerned as the court knows the division of gaming enforcement investigated there's no gaming of who's been reviewed what the borgata had on what reviewed the game review because it was never any finding by anybody d g or otherwise with regard to any request for modification this was the parties themselves coming to an agreement in the agreement they didn't say anything and what they said was ok great just give us a one million dollars in front line so the the point i believe in the point that i believe with the district court heard was that the question in the st instance  limitations issue and concluding for example that either it was authorized modification or that the regular can simply read to us it said that if the game is authorized the licensee is authorized that that's all that's of incorporation of the c c a and seem to be debating whether the c c a itself in fact prohibited edge sorting but if it were really looking at a breach of contract then isn't the question not what the c c a in fact covers but what the parties understand is allowed or not allowed as a as a term and condition of the contract in other words isn't the question whether both sides have stood that edge sorting was prohibited regardless of whether it's covered under the c c a or not i don't think there's even a question about what at all with regard to gaming in the regulations of the gay g that prevent a player from utilizing what is excluded visual acuity to looking at and determining whether one card is of a particular value or going back legality and what the c c a cover in my questions a little different yes when we're looking at it contract in breach of contract we're looking at the what was the meeting of the minds what did the parties understand and  if the casino was aware they were engaged in edge edge shorting that the game would be terminated and they would be thrown out of the casino my current see not understand that they'd be thrown out of the casino fred sorting but i believe  understand that yes then would you agree that there was a breach of contract if they did understand that i don't know that i can agree to that this is the conceptual problem i'm ha to sell your clients then i believe that edge sorting would be permitted if the casino was aware that they were engaged answered of course of course because as even the casino individuals testify it is legal there's no particular rule of the game there's no house rule there's no statute there's no nothing that prohibits edged sword and the casino could just put it put a block on the on the on the shoe i'm going to show they could difficulty with that is if i start with the proposition that we are not permitted in the state of new jersey to contract with regard to illegal gaming we're not permitted to contract with a great gaming period you and i are not permitted to make a contract about gaming put aside legality or illegality let's assume that it's legal nonetheless two parties with conduct that's legal can agree that it's not going to be conducted in a particular setting right yes i could agree to that yes so isn't the relevant question to for us whether the parties agreed to that here whether your client's understanding in expectation of this contract was that they were not permitted not because of the law but because of their agreement with again it's not about legal or illegal did they understand that a term of their agreement with the casino was that they couldn't engage in edge sword now they didn't understand that because neither party understood that well how how then do we understand the testimony of my son for example that she didn't want the dealers to know why she was flipping chords in a certain way and of course i didn't want them to know why because if they found out that i can't play they would take measures so why isn't that than if they had that understanding and nonetheless the in gauged in the conduct the understood was impermissible in their agreement with the casino why isn't that a breach of contract or that it's not conduct brandished it was impermissible its conduct they believed was permissible burghardt it agreed was permissible and yet conduct where if they can they take countermeasures they can't prohibit it but they can take countermeasures such as putting that the card in the shoe at a different location so they'll take countermeasures and there it would be that they would put something on the front of the shoe yes not that's exactly the hibbett cheating or intent to sheet or using devices is separate apart from the history no control act was the district court correct in saying well there's no fraud so rico goes goes out the window well i've been i believe it is  believe the waters of the judge specifically mentioned that what was going on here if anything was a breach of contract was not even did not even rise to the level of fraud and i believe he was saying that in the context of you can establish a predicate act there's no crime here there's there was no conduct which anyone ever has declared illegal there's no violation of the reg there's no one cheating for swindling or knowingly by trick  that's the marking conclusion yes yes i'm out of time countermeasures well they're bent it well beyond that that that was not the that was that is antithetical to the game of back or that in in the card counting occurs in games like poker and blackjack where there is this woman of strategy and very unusual but it's it's for a free country in reading st card knowledge which is antithetical to bacharach because the idea is that the random delivery of the cards is is it is inherent in the game of back or at the only choice somebody ma right is to decide where to bat and how much if there's no issue about drawing additional cards there's something called the rd card rule but that's a that's a that's not a choice by any of the players the rules determine when every card is drawn s ivey had gone in the night before it covertly somehow gained access to the shoe and turned every card by hand and then was able to execute the scheme the next day i think everyone would say that's obviously cheating an impermissible or concrete contract what happened here was that they managed to enlist an unknowing unwitting accomplice to turn the cards and that doesn't change the result that still the conduct both breached an implied term and breached the party's understanding of what was going to happen because that is the nature of fact it's not like poker it's not like it's like coin flipping with a rigged coin or god it is an accomplice with as much access to knowledge about this  as anyone nothing was hidden why isn't bored out of barred from saying you did this and you shouldn't have well let me have got it was the one who agreed we didn't agree we did agree but you know because we agree to lots of things that don't x affect the integrity of the game there is a lot of superstition surrounding back of that which which they exploited precisely because it's really kind of a passive game it's coin flipping and so we allow people to peek at the card before it's turned over hidden from you well just as much access to what was going on you know as is anybody it wasn't really like pointing well it wasn't in plain view because the no one had ever seen it before that that was the testimony wasn't that everyone testified that it was lawful your honour's right that they were talking about could you identify specific d g e rag and they couldn't but they said no we this is not something which which is which has been done before yes it's a skill but frankly under the sen kind of characteristics of the game well here and at the it what's the end of that so that that person knows that no one else does correct correct but that's that's always the case with card marking a pipe like a magic marker and wrote on a card it wouldn't change th allowed her it's true nobody else had that visual acuity has to be in a way that it's not known by anyone else or could not be known by anyone else and here you have equal access well i don't see that in the statute your honor honestly it says also buy this core indicates that the common law survives the tea cia but it i do think that if you are if your honor wanted to say there's no contract at all then you reach the same result the district court here did not impose and expectancy damages it just restored the parties to the status quo ante in the complaint which the district court didn't reach certain counts of the complaint the equitable counts about mistake rescission all of the race the contract from the beginning claims and it footnote eighty four  our brief we preserve the argument that if you want it that we should be if there's any issue on appeal about the contract claim then we preserve all the equitable claims and i think the district court would be reach exactly the same result depend green that there was a violation of the well no i don't because i think your honor has it down to the parties understanding as a separate basis i think the contract includes both an implied term and the party's understanding  it would the district court didn't consider that and whether it's a trial or summary judgment issue i don't know but if your honour's think that the implied the district court relied an implied term theory if your honour's think that the parties understanding is a unnecessary issue in the case then yes there have to be every man for the district court to examine that issue and but we don't think you should we think that either you should affirm on the ground stated by the district court or you could affirm on the grounds that if there were no contract at all there are equitable claims which lead to exactly the same result because just record implied or applied a rescission remedy which is exactly the remedy you would get under like section three hundred and seventy seven of the restatement of thirteen coal and sixty nine dash one three d in special cases and for good cause shown the g e may relax or permit deviations from the rules and so they looked at this very closely and they may well have sad that y right talks about twelve dax into shoes here there were eight backs in one shoe and that's what the parties requested in agreed to that is we don't think that that's a material issue  after the fact they did but i think the question is about whether there was authorization to make these modifications before they were made and whether there was compliance with other conditions like posting signs for example and we can verify  happen i can't represent one way or the other whether it happened or not what happened is because this case was a little gate on the assumption that there was compliance with all the regulations i mean the plaintiffs have said over and over again that the that there was regulation would prove it any of the terms or conditions including relating to a particular color and number of decks or cards there's no rule or regulation making any of it independently or in combination on lawful so in a district court they said the same thing over and over again and we can submit a letter  discovery there's no decision on twitter in the district court or briefing on the issue of compliance with the regulation we do it and we don't think frankly that the court should be deciding for itself whether there was compliance for the rag because there are lots of there are hundreds of pages of regs and bacharach for example the st person to the table gets to inspect the cards not the nd not the rd but the st and so if you were to say that a compliant with a rag means that gaming is unauthorized and that that that there will be a cause of action for a return of losses then anybody who loses it bacharach will be able to go to court and say i was the st person at the table i beat that person by one two seconds the game is an authorized on my losses back and by the way i got to whine on the c c a in order to prove that there was a breach of contract or some sort of a lawful entity and he does sound like you're trying to have it both ways very well i think we're only having it both ways because i think  was correct but there's also the issue of what did the parties understand and i think that it's clear that the parties that any reasonable person would would have understood that there couldn't be edge sorting because it's antithetical to the nature of facts that support exactly what the terms of the contract or whether everybody had this understanding but you know we have this case because the casino control commission has said you go yes go for it we're supposed to be the authorities but we don't want to talk about this and we have a lot of ways we could go that could impact the industry in new jersey the only real case that helps us decide what to do in this case is not it which says specifically that an unauthorized game and there was a matter of whether they've been shuffled or you wouldn't think that that's a huge deal but it was and they said it was unauthorized doesn't that dictate to us that we need to to look at this with respect to the cards that were  t number of decks or maybe certify this issue of whether the fact that you played with eight purses twelve decks means it was unauthorized and therefore the statue of limitation applies i mean under new jersey law it looks like this case shouldn't shouldn't regs and there was a finding that is different from this case where d g even looked and did not find that and i think that your honour's should not tread and find a violation where b g e has not but it's pretty clear on to the regs that  relax or permit deviations from the rule if they're asked but you didn't even ask if you're supposed to notify if you change the game you have to notify the division of the rule change the gaming table where it will be implemented in the time that it will become effective well that's one the if your if your honour's directly if your honour's think the courts would be deciding this then as i pointed out background cases will become anyone from philly hugo's the atlantic city will claim diversity of citizenship and you're going to have a lot of federal cases saying at that point to say whether the violation or not they're not acting d g acts to administratively enforce its own regs for its own purposes i don't think they're thinking too much about well plaintiffs six months and all that their job is to make sure that the casino are safe and  reputable and promote the purposes of the whole casino legalization which is to ensure that there are safe proper gambling in gaming in new jersey and so that's their ministry of authority and i do think separately that the notion that a game is suddenly unauthorized because it is a violation of a rag that's one hundred and one dollars hyper technical detail in a large set of hundreds of pages of regs i think is a misreading of the statutory scheme i mean my friend on the other side refer to section one hundred and twenty four which exams because you know industry in general from the criminal prohibitions against gaming and the new jersey both the new jersey courts and this court i read that as a categorical exemption like if you look at miller division and this court has already crossed that bridge frankly in the tows case judge greenberg's opinion bad involve the gambler who again alleged a violation of a rag that he had been served while visibly intoxicated and he alleged a counterclaim and this court did not say oh there's a there everything's on authorizing you have six months it gave him six years he gave him a six year common law statute of limitations rather than six months and so i booked both this court and the new jersey appellate courts have looked at this as a can't work out just why doesn't it just mean that a six month statute of limitation applies if the casino engages in unauthorized plane right now elation of the rules and then the casino is turning around and and asking  would be the if there's a if there is a violation of a rag the the transaction is void the contract is void that's what section three says forty dash three so say if there's been a legal gambling gambling transaction a contract or agreement is it's unauthorized play that is reverting back to the illegality of that gambling that you can bring an action you know a person who lost money can sue for and recover such money in a civil action as long as they do so within six months it does say that it doesn't say that it's displaces all rules of equity it doesn't say that that is the exclusivity even if you viewed it as a as a robbery it clearly is a cause of action i don't deny that but there's but if there's another the same statute which says well the grammys are just going to be void then that allows someone to bring cause of action based on equity and frankly and golden nugget if you look at page three hundred and forty five dollars of the appendix which is the golden nugget decision golden nugget just doesn't bother actually doesn't cite the six month provision was forty days five limited by its terms to breach of contract action versus equitable actions it says if a person shall do such money in other equitable remedy that imposes limitations period of six months for that cause of action so why isn't why isn't the work on this action then time heard because we're not suing under that provision if you were to say that everything is void a and the party should be left to equitable remedies then i don't think you can read section five is precluding a simple rescission action under the restatement and those are the if the very least those are the claims that exist now in the district court if your honor had that concerned i think the proper answer would be to remain for the record to let the district court in the st instance decide whether at the equitable claims survive and the rico claims frankly rico claims rico a totally separate cause of action the rico applies to impromptu games outside of the casino completely on authorized games or sick a sweet sight in the brief called joseph's joseph from the th circuit which is a case about just existence of and enterprise will write new jersey they don't because the jersey doesn't have the distinctiveness requirement but the enterprise that we alleged was a enterprise in fact involving the combination of ivy and sun that these skills and so the two of them together were in enterprises beyond each of them as defendants we admit that under the federal law cedric cushion or the enterprise in the defendants have to be distinct they don't have to be distinct under new jersey law i'm not abandoning it i'm saying in fact i was trying to explain why because the whole is greater than the sum of the parts the enterprise can exist even though it is imposed of the two defend requires decision why isn't why was the district were correct that concer simply a gift there's not an expectation that they would be returned under any conditions right we don't think we weren't saying it was part of a con a contract that way thing that he breached a specific contract with regard to the cops it's set in unwinding the transit unwinding the events you would also over time the cops i mean i also got some money from winning craps and they just record award out to us as a refund because it said look we've got to imagine that this whole episode never happened because you would because if that was the way the district court and when did the remedy and so if if indeed that world that counter factual overstrong to status quo ante we would have paid make a conclusion about the violation or not violation of the rag i just want to go back to the nature of the contract in that the terms that you're asking us to imply in the contract  you just give us a clear answer is the argument that there was an understanding that this that the c c a was a term of the contract and the breach is the violation of the c c a or is  c c a not relevant and the argument is that there was it an expectation in term of the contract that edge sorting was not permitted and provision was is something which came you know came later the complaint contains a good breach of contract claim as well as equitable claims that i've mentioned before as well greta but i don't think the creating because you control access it would go back to a question we asked your adversary earlier is it your position now that the c c is an implied term of gaming in every relationship that if a seen a house with one of well certainly in this relationship every bit in every i think it's implied by law i mean that's what you know what my friend on the other side said in gold another five hundred and ninety six dollars of the appendix the implied contract between the parties included by legal necessity the terms and conditions which are required under new jersey law but let me also say that the party's understanding of bacharach is informed by things like even the english court understood this was cheating the foxwoods casinos in connecticut understood this was cheating because not because they operate in the new jersey law but because they understood the nature of the game of baccarat and so i do think that there is a separate argument based on any sort of the party's understanding premised on the nature of the game when you walk into a casino to play baccarat you are you are agreeing to a situation where you will not have st card knowledge and anyone who thinks otherwise has it is operating under you the lotto mistake and of course that wouldn't void the contract either now the words i walk into a casino with the mistaken understanding that i could cheat it baccarat to blackjack or anything that's not going complaining clued that theory then i think that this record is the one to resolve but i do think that the hate the way the case was litigated was that the that baccarat is inherently a game of chance it is not a game of i'm relying on that's the card marking staff no i think that the idea of the parties understanding what the nature of the game of baccarat is is separate from the c c act i think that's an argument that would just say awful regulation this nature of things that you keep referencing can you help me understand what that is and where that informs our our understanding of this what i was trying to do to couple it to judge kraus as you point about what did the parties understand part of the game and that's my point that the party understanding can be could be seen as a breach of contract theory separate from acquired contract we don't we don't have running from the district courts implied contract theory it's just that at the day i think that crowd did prohibits the parties understanding of what the c c a prohibited is with religion per preacher contract claim correct correct and what a reasonable person would have understood i think that's always the contract  place of the condition operated blah blah blah of which tends to result to which tends to alter the normal range of selection characteristics i think that was met here and then be as you would point out root privets you knowingly using any marked cards so i think both of them were violated here so when one possible reading is that applies to prohibitions on the casino and be on the player do you have any authority that one hundred and fifteen dollars a applies to players well because it applies did not simply things that ignited that a casino does like deal but carry on i think that the patron carries on as well as the casino and if the per the to and also exposes for play those are both things which the witch a witch of hatred dies as well as the casino it is do you have any authority in any case law from new jersey that applies  be that the difference was there was an actual decision by the d g a the fact of the matter was there was a letter from the division of gaming enforcements lawyer that was part of the gold nugget case however the court ruled that that was not a decision of the agency it was the opinion only of a lawyer and did not accept that it was actually irrelevant but more importantly with a gold nugget court found was look the events that occurred here were more than two and a half years ago the division of gaming enforcement investigated it and that was i'm not saying they understood it one of what i do say is on the st order of play with phil ivey the surveillance department suspected that he had st card knowledge it was part of the d hot sheets within the  a investigated is significant d g didn't do anything further when it comes to interpretation of what happened here interpretation of the rules and regs of the game there's no reason to send it back to the d g a the whole concept control act is this is a strictly regulated per business which is governed by rules and regulation the rules and regulations are in black and white there's nothing to send back there's no opinion the d g can give that varies from the regulations that were in place that is my point i think the question raised was not so much is sending it back to them as we offer that happen that the commission is very generous office of clearly declined but rather whether given that these are state law questions and if there's a lack of clarity in significance to the state depending on how we would come out on them whether it's something that should be certified to the new jersey supreme court of action based upon a violation of the casino control act that was the nd issue raised of this court one appeal and it was the issue raised by the district court in summary judgment and that's precisely what they're doing it would have can't be on them in the new jersey supreme court has already said that they can do that right it says that the legislature did not intend the c c a to prevent patrons from seeking vindication of common law claims in the courts yes but these came here and did bar private enforcement of the casino they're bringing common law claims that may depend in part on that being in clyde term for example but whether the claim you're bringing is a common law claim it's not stepping into the if it turns on a breach of regulations be the issue of a contract action falls like this at least in my opinion the game while it contains a requirement that both sides operate pursuant to the rules of the game if that game in and of itself is an authorized by the rules and regulations there's a remedy the remedy is to a forty dash one however if that is applicable and there's been a violation of the authorized rules and regulations we are not permitted to enforce a contract how can we bring a contract claim that is in essence in violation of new jersey public policy because the claim there would be the terms and conditions we agreed on are and common law contract they are independently enforceable those are the same terms and conditions that render again i'm authorized any illegal you can't have a common law kind of contract where your underlying quote contract action has been based on an illegal agreement to gamble that's my answer did you press that argument earlier in these proceedings as i'm not aware of where you were in that specific argument that this entire contract was illegal i believe it's point one of our brief talking about the fact that he entirety of the plaintiffs on that that the action in this case must be dismissed because they're relying upon iller galatea in the conduct of the game  six month statute of limitations well if you raise that argument not specifically now not specifically did not give you argument was raised only in the context of violation of rule or regulation translates into an authorized game which is illegal so in essence whether in my mind there are two paths to the same result after number one what the court noticed and the clerks notice there's a particular reg on decks and colors of cards also same result with regard to a finding of edge sorting if the court fan found as it did that there was a marking that the game was illegal and the court said that in the court came back and looked at the district who are gold nugget and said exactly the same thing as gold nuggets and an accepted that reasoning because the illegality was at the inception at the very beginning of this relationship there was an commit an illegal law apparently whether one looks sack the regulations and the number of jackson cards required or whether or not there was any sorting and if that's the case in the game as it began wasn't authorized because it did not comply with the strict regulations in place if that's the case they had the remedy the remedy was pursuant to the statute not in a common law contract action that's oregon