Unites States v. Pokerstars, et al

Filing 286

MEMORANDUM OF LAW in Support re: 281 MOTION to Dismiss DEFENDANT AND CLAIMANT HOWARD LEDERER'S NOTICE OF MOTION AND MOTION TO DISMISS THE VERIFIED SECOND AMENDED COMPLAINT'S IN PERSONAM CIVIL MONEY LAUNDERING CLAIM AND FIRST AND SECOND IN REM CLAIMS.. Document filed by Christopher Ferguson. (Withers, Julie)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
Plaintiffs,
- v. -

11-CV-2564(LBS)

POKERSTARS, et al.,
Defendants,
ALL RIGHT TITLE AND INTEREST IN THE
ASSETS OF POKERSTARS, et al.
Defendants-In-Rem.
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CHRISTOPHER FERGUSON’S MEMORANDUM OF LAW JOINING
HOWARD LEDERER’S MEMORANDUM OF LAW IN SUPPORT OF
HIS MOTION TO DISMISS THE VERIFIED SECOND AMENDED COMPLAINT

Christopher Ferguson joins in Howard Lederer’s Motion to Dismiss the Verified Second
Amended Complaint (the “SAC”) and Mr. Lederer’s Memorandum in Support thereof for failure
to state a claim under Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. The
deficiencies in the SAC and the legal arguments asserted by Mr. Lederer, including the recent
decision in United States v. DiCristina, No. 11-CR-414, 2012 WL3573895 (E.D.N.Y. Aug. 21,
2012), apply equally to Mr. Ferguson. The factual allegations against Mr. Ferguson are
strikingly deficient.
The Government still fails to state a single specific allegation — new or otherwise — that
could give rise to a claim against Mr. Ferguson or his in rem property. The sum total of the
factual allegations in the SAC against Mr. Ferguson are: (1) he was a founder and member or
chairman of the board of Full Tilt Poker (SAC ¶¶ 8, 30); and (2) he received distributions from

the company (in a significantly lesser amount than allocated to him in accordance with his
ownership interest) (SAC. ¶¶ 115). Mr. Ferguson readily concedes these facts. Neither of them
come close to establishing liability. Indeed, the Government’s only real theory against Mr.
Ferguson seems to be that he should be held strictly liable for the actions of a company in which
he owned an interest and for which he served as a director. This is no theory at all.
As for allegations of specific wrongdoing by Mr. Ferguson, there are none. In 189
paragraphs of factual allegations, nowhere does the SAC allege that Mr. Ferguson made any
misstatements to anyone, was involved in any scheme to defraud towards anyone, was involved
in any wrongful conduct toward players, or any wrongful conduct involving payment processors.
Nor does the SAC allege that Mr. Ferguson had any knowledge of the conduct regarding
payment processing or the segregation of player funds of which the SAC makes much.
It is not enough to allege claims of purported wrongdoing against the company, and then
say Mr. Ferguson was a director. It is not enough to allege claims of purported wrongdoing
against the company, and then say Mr. Ferguson received distributions from the company. The
company has settled. It is no longer a defendant. And, the allegations of the SAC, as to the in
personam claims against Mr. Ferguson, do not come close to meeting the exacting pleading
standards of Rule 9(b) of the Federal Rules of Civil Procedure or even the lesser standards of
Rules (8) and 12(b)(6). See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)
With respect to the in rem claims, Mr. Ferguson joins in the arguments asserted by Mr.
Lederer.

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For the reasons stated above and those presented in Howard Lederer’s Memorandum of
Law, the SAC as to Mr. Ferguson should be dismissed.

November 16, 2012

Respectfully submitted:
/ s / Julie Withers
Jonathan Harris
Julie Withers
Harris, O’Brien, St. Laurent & Houghteling LLP
111 Broadway, Suite 1502
New York, New York 10006
Tel. [phone]
Fax [phone]
[e-mail]
Ian J. Imrich
Law Offices of Ian J. Imrich, APC
10866 Wilshire Blvd., Suite 1240
Los Angeles, CA 90024
Attorneys for Christopher Ferguson

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