Clonie Gowen’s lawsuit of course, was the first of what would prove to be many against various Full Tilt entities — at the time dismissed not just by a Las Vegas judge, but by the “poker world” and industy as a whole. Since then the belief that Full Tilt could do no wrong has definitely reversed itself … in American courts as well as the court of public opinion.

Clonie was seeking $40 million as a part-owner of Full Tilt. But my how times have changed … If she does finally get her day in court, certainly the valuation would have to be reassessed … and these days, were an American court to way declare that yes indeed you are an owner of Full Tilt, would that be a win?

Read below for a summary of the decision by the Ninth Circuit Court of Appeals, based in San Francisco:

GOWEN v. TILTWARE LLC

CYCALONA GOWEN, Plaintiff-Appellant,
v.
TILTWARE LLC; POCKET KINGS LIMITED; POCKET KINGS CONSULTING, LIMITED; KOLYMA CORPORATION; TILTPROOF, INC.; RAYMOND BITAR; HOWARD LEDERER, Defendants-Appellees.

No. 10-15468.

United States Court of Appeals, Ninth Circuit.

Filed June 9, 2011.
Before: KOZINSKI, Chief Judge, N.R. SMITH, Circuit Judge, and BLOCK, District Judge.**

MEMORANDUM*

Because the district court dismissed all of Gowen’s claims, we must accept the factual allegations in her complaint as true. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

1. The district court correctly dismissed all claims against Pocket Kings Ltd., Pocket Kings Consulting Ltd., Kolyma Corp. and Tiltproof, Inc. Gowen didn’t allege that these companies were alter egos of Tiltware, nor did she plead facts establishing personal jurisdiction in Nevada. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801-02, 807 (9th Cir. 2004); Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1156-57 (9th Cir. 2006).

2. The district court correctly dismissed the claims for breach of contract and breach of the implied covenant of good faith and fair dealing against Bitar, Lederer and the individual members of Team Full Tilt because Gowen failed to allege any facts showing that they’re alter egos of Tiltware. The court correctly dismissed the breach of fiduciary duty, fraudulent conveyance and declaratory judgment claims against all defendants because Gowen didn’t allege facts sufficient to state a plausible claim for relief. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). For the same reason, the court correctly dismissed the unjust enrichment and fraud claims against the individual members of Team Full Tilt. See id. Amendment of the above claims would be futile, so the court didn’t abuse its discretion in denying leave to do so. See Fed. R. Civ. P. 15(a).

3. The district court erred in dismissing the breach of contract and promissory estoppel claims against Tiltware. Gowen alleged that Tiltware promised orally to provide her with a “1% ownership interest” and make distribution payments based on that interest once the company became profitable. She promised to join Team Full Tilt. Taken as true, these allegations are specific enough to survive a motion to dismiss. See Khoury v. Maly’s of Cal., Inc., 17 Cal.Rptr.2d 708, 710 (Ct. App. 1993). The terms of the contract don’t preclude performance within one year, so an oral contract is valid. See Foley v. Interactive Data Corp., 765 P.2d 373, 381 (Cal. 1988). Because Gowen alleged an enforceable contract, the district court shouldn’t have dismissed the claims against Tiltware for breach of the implied covenant of good faith and fair dealing, specific performance and an accounting.

4. Gowen alleged that Tiltware used her celebrity status to promote the Full Tilt Poker brand, and that she was entitled to compensation for such use. These allegations state a claim for unjust enrichment. See Day v. Alta Bates Med. Ctr., 119 Cal.Rptr.2d 606, 609 (Ct. App. 2002).

5. The district court erred in dismissing the fraud and negligent misrepresentation claims against Bitar and Lederer. Bitar promised over the phone to give Gowen an ownership interest in his company, and Bitar and Lederer discussed Gowen’s purported ownership interest with her at the Golden Nugget Casino. Gowen relied on Bitar’s and Lederer’s promises when she joined Team Full Tilt, but Bitar and Lederer knew that no ownership interest had been or would be given to her. These allegations meet Rule 9(b)’s heightened pleading standard. See Sanford v. Memberworks, Inc., 625 F.3d 550, 558 (9th Cir. 2010); cf. Fanucchi & Limi Farms v. United Agri Prods., 414 F.3d 1075, 1088 (9th Cir. 2005).

6. Gowen discovered her injury in 2007, when she saw other Team Full Tilt members begin to receive the promised distribution payments. She timely filed suit within two years of discovering her injury. See Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 921 (Cal. 2005); see also Cal. Code Civ. P. §§ 338(d), 339.

AFFIRMED in part and REVERSED in part. No costs.

1. that Tiltware breached its contract with him on a number of fronts;
2. that certain contractual covenants are over-broad, oppressive, and contrary to public policy; and,
3. that Full Tilt’s actions separate and apart from the contractual breach have damaged Ivey’s reputation.

For this, Ivey essentially wants in excess of $150,000,000 in damages and a declaration that the non-competition covenants in the contract are void. Ivey’s contract with Tiltware is not included with the filings, which isn’t unusual, but presumably a copy will come out if this action grinds on long enough; that should be a compelling read when it surfaces.

The complaint describes Tiltware as a supplier of “software and related support for the conduct of legal online poker.” Ivey endorsed Tiltware’s product with his name and likeness, and the software was then provided to Full Tilt Poker (not named – yet – in the suit). According to Ivey, then, he only endorsed the software, and not the site itself, although the upshot of the arrangement was that Ivey “became widely recognized as being associated with Defendant, with Defendant’s product, and with Full Tilt Poker.” Quaere whether Ivey’s endorsement was ever limited to the software produced by Tiltware, and not “Full Tilt Poker” itself, but let’s ignore that factual issue for now. (The use of “Defendant” in the complaint, though undefined – unlike “Plaintiff,” which is defined as Ivey - presumably means Tiltware, even though there are several defendants.)

Without a copy of the endorsement contract, it’s impossible to say whether or not Ivey’s claims have traction or not. According to Ivey, ”Defendant asserts that for the entire existence of the Company [again, presumably Tiltware], Plaintiff is prevented from owning, acquiring, assuming or participating in any investment or interest that is adverse or otherwise in conflict with the Defendant’s business or prospects, financial or otherwise, without prior written consent of the Board of the Defendant, which consent may be withheld in the Boards’ [sic] sole and absolute discretion.” If that’s what the contract says, then it may well be overly broad and contrary to public policy on its face. Non-competition clauses aren’t supposed to preclude one’s ability to earn a living forever.

However, the alleged contractual breach based on what Tiltware, Full Tilt, and Ivey apparently knew about the legality of the US poker market is potentially more interesting. Ivey claims that neither Tiltware nor Full Tilt advised him of the “repeated warnings and clear notice that their conduct was illegal in the United States,” nor “that Full Tilt Poker was allegedly using ‘fraudulent methods’ to avoid banking restrictions.” Ivey may very well not have known about the bank fraud alleged to have been orchestrated by Full Tilt and others. The “repeated warnings and clear notice” is also vague. The complaint recapitulates the US Attorney’s press release on this point, but from whence the warnings and notice? The Department of Justice? Full Tilt’s lawyers? The players themselves?

Setting that aside, it strains credulity that Ivey didn’t have constructive notice of the alleged illegality of Full Tilt’s conduct in the United States. (And, for now, that illegality is still just alleged. The purported illegality is what Ivey complains caused him the harm.) Full Tilt consistently took the position that offering Internet poker was not illegal in the United States (except in Washington state, which it eventually shut off). If Full Tilt believed that assertion but was just wrong about it, what does that mean for Ivey? Did he honestly have no view on the matter? Did he and his lawyers consider all of the arguments and also decide that Internet poker was okay in the States? Ivey’s a brilliant guy and one of the best poker players in the world. It’s hard to conceive of a scenario in which he wasn’t aware of the arguments that Internet poker wasn’t legal in at least some states and therefore potentially under federal law. It just seems like wilfull blindness.

At the same time, Full Tilt’s public response to the lawsuit was less than edifying. There are vague references to Ivey helping and enriching himself at others’ expense. Assuming without deciding that Ivey has a valid claim against Tiltware and others, it may be that Full Tilt has to pay back the players and its disgruntled pro, irrespective of their trying to spin the matter into a zero-sum game of “we can pay back the players or we can pay Ivey, but not both.”

It will be interesting to see how this case shakes out. At the time of writing, Ivey is still listed as part of Team Full Tilt on www.fulltiltpoker.com. One has to expect that to change soon. One theory about why this action was started is that Ivey simply wants to take steps to publicly distance himself from Full Tilt, which I think is rational on his part. If that’s true, then the merits hardly matter; what’s important is the display of Ivey getting his narrative into the public record.

For many years, I have been proud to call myself a poker player. This great sport has taken me to places I only imagined going and I have been blessed with much success. It is therefore with deep regret that I believe I am compelled to release the following statement.

I am deeply disappointed and embarrassed that Full Tilt players have not been paid money they are owed. I am equally embarrassed that as a result many players cannot compete in tournaments and have suffered economic harm. I am not playing in the World Series of Poker as I do not believe it is fair that I compete when others cannot. I am doing everything I can to seek a solution to the problem as quickly as possible.

My name and reputation have been dragged through the mud, through the inactivity and indecision of others and on behalf of all poker players I refuse to remain silent any longer. I have electronically filed a lawsuit against Tiltware related to the unsettled player accounts. As I am sure the public can imagine, this was not an easy decision for me.

I wholeheartedly refuse to accept non-action as to repayment of players funds and I am angered that people who have supported me throughout my career have been treated so poorly.

I sincerely hope this statement will ignite those capable of resolving the problems into immediate action and would like to clarify that until a solution is reached that cements the security of all players, both US and International, I will, as I have for the last six weeks, dedicate the entirety of my time and efforts to finding a solution for those who have been wronged by the painfully slow process of repayment.

I think Wicked Chops said it best in their article on the subject: Holy shit. Not only was it not expected, but the strength of the words from someone that is in that category of “legally bound not to speak” adds extra weight to it. No doubt Ivey has, as @taopauly put it in his daily recap, “titanium balls.” That said, nothing escapes radar without some further reflection and critiquing, so here goes:

Point 1: How the word got out

Word of the statement first got out on twitter after Phil Ivey’s public page had a series of status updates from the man himself. At first, it seemed like it was a fake account, but even a quick glance proved that this was Phil Ivey’s actual page (his twitter account linked it), so the only possible alternative was that it was hacked. That question was soon answered when Wicked Chops initially confirmed the statement, followed promptly by independent confirmations from Bluff and Pokernews (amongst others certainly). This led to the simple question, why do it as facebook status updates? Did Ivey’s PR person go to the same clown college as FTP’s and AP’s? In short, no, I don’t think so. The initial statement over facebook was, in reality, the fastest chance for it to get out quickly and publicly. Not only that, but its going to reach the fans first.

Some in the media gave Ivey’s team flak for going through unorthodox channels to get this info out, but it was really more well thought of than people realize. OK, I will grant they should have used a note and not a status update, but the status updates could have been considered a better way for people to view it without having to click through to the note. Not only that, but they definitely planned it, if you read the status updates from top to bottom its the actual statement, which means they posted the last paragraph first, so it was clearly intentional. I would have to disagree with my colleagues superiors those that took issue with this statement, it simply worked. It may or may not have been “Phil Ivey”-esque, but I really think this was meant to get out to his fans first, and the press second. There was an eventual press release on his site that cleared up the ordering of the updates, but I almost think that was reactionary to the media outcry for something “official”, not necessarily a planned event. (For instance, as of 2:30PM PT, the word immediate is spelled “immediaye”)

Point 2: The Lawsuit

I think  the media has learned, if nothing else than in the wake of the “Full Tilt Account Unfrozen…er…not really” saga, that we need more than a pretty statement from a news site or a “source” to confirm a story. In the wake of Ivey’s initial statement, there has been a continuous lookout for the lawsuit filed either in federal or Nevada court, and can be found here (credit goes to Oskar Garcia from AP for the find). While others can provide a more detailed legal analysis, there are a few questions that need to be answered right away:

• What is Tiltware being sued for? – A whole host of things, ranging from branch of contract to “tortious interference with prospective economic advantage”. Essentially, Ivey is saying that Full Tilt abused their relationship with Phil Ivey by damaging his reputation. This reputation was damaged when it was discovered that Full Tilt was engaging in illegal practices within the United States.
• What damages is Ivey seeking and how does this help get money back to the players? – In the end, Ivey is seeking injunctive relief, declaratory relief, and damages.Here’s the kicker, Ivey values all this at over $150 million. This could be an educated guess as to how much money is owed to US players, but while its reasonable to assume this money is intended for the player pool, at first glance the lawsuit does not suggest this.
• What jurisdiction will the suit be filed in?  – The suit was filed in Clark County District Court, so its just at the state level for now.

More details are being unearthed as the document is being analyzed, but that is the core of the complaint as a far as a first glance could tell. Thanks to Black Friday and last Monday, the media has gotten very good at asking for court documents. The filing occurred at 8:30 AM PT today, so this is in line with Ivey announcing that he had filed in the press release last night.

Point 3: What’s in it for him?

Yea, definitely going there. Nobody does this for purely altruistic reasons, certainly not Phil Ivey, so what does he stand to gain? Admittedly, there is an angle that helps him. We don’t actually know how much a lawsuit will speed up the process, but there is a pretty good idea that if cashouts occur with ANY amount of speed it might look like Ivey had something to do with it. A fair assumption? Don’t know, and might never know. One of the PPA’s reps took things one step further, and arguably that didn’t help the PPA’s position with the players very much. (Not getting into his statements about Quadjacks being the Fox News of Poker, that is it’s own Pandora’s Box.) One thing is for certain, Phil Ivey is trying to rebuild a reputation damaged by Full Tilt’s inability to pay.

Secondly, and this is not an opinion that I’m alone on, but Ivey might simply not want to deal with the heckling associated with wearing a Full Tilt patch. The John Juanda/James Bord confrontation from yesterday’s $25k HU match was one such instance, and I don’t know if anyone has attached Juanda to the inner-workings of FTP. Phil Ivey just simply might not want to deal with the continued criticism he would face simply from showing up with a patch. And its not like he can just take off the patch and play. If he is indeed suing Tiltware, the last thing he wants to deal with is a countersuit that he’s breaching contract by playing events without the patch. So when there is a damned if you do/damned if you don’t situation, you simply don’t go. For certain players not being paid is a direct reason Ivey’s not playing, but its not as altruistic as he makes it sound.

In short, Ivey is looking out for himself. He probably sees the writing on the wall and is simply trying to get ahead in the game. One of the big unanswered questions is what that writing on the wall is. Is Full Tilt not going to be in a position to pay for months? Can they pay now and won’t? We obviously can only guess at this point, and hope it becomes clearer later. Phil Ivey is, by all accounts, an honorable person, so all that said I refuse to think he doesn’t believe what he his publicist wrote in that press release.

One thing that hasn’t been addressed is “why now?” Simply, at this time, there isn’t much to tell. There have been hints that this isn’t Ivey’s first brush against Full Tilt leadership but without actual evidence they are just rumors. As the story pieces itself together we are bound to find out more. Being the first Team Full Tilt pro to truly speak out against their own company takes an unbelievable amount of stones and we should definitely applaud him for doing so. But there is still more work to be done, and I don’t want to get bluffed by the world’s best poker player here. Let’s see where things go before completely buying into Ivey being our champion.

Full Tilt (specifically Tiltware, LLC, out of California) is not seeking money from her beyond court costs and attorney fees. But they do want a clear declaration that she does not have the 1 percent ownership interest she alleges.

Click here to read Tiltware’s compaint against Gowen, filed on Friday.

So why would they be doing this? Well according to the Nevada lawyers I’ve spoken to, that’s hard to say …

Essentially, they’re looking for the court to rule against her without having a trial. She goes to court again on February 1, for the third and last time, with the court deciding if her Third-Amended Complaint has merits to proceed. But if Full Tilt wins, and the judge says, yeah, sorry, we can’t waste a jury’s time with this … then maybe they don’t win enough?

Why? Because Clonie’s attorneys are also representing two similar breach-of-contract plaintiffs suing Full Tilt in Nevada state court: Jason Newitt … and one other guy we haven’t heard of before — Hilton Warmback.

So if Tilt’s lawyers can get the federal court to declare definitively that she did not have a 1 percent stake … well then obviously she’ll have never have a case in state court. And the grounds for that dismissal should help them in their cases vs. Newitt and Warmback. If she didn’t have ownership, then obviously they didn’t either … but if she did have ownership, then holy fugk, they probably did, too!

Both Newitt and Warmback supposedly have written contracts for their ownership stakes (.0049 perent and .00143 percent, respectively). But according to the lawsuit against Clonie, no such records have been submitted to the court yet.

Though I don’t know details, Newitt had a state court date on Monday, where the Judge was to consider a motion to dismiss. But to the best of my understanding, that motion got delayed pending some decision related to the Clonie case. Again, not all clear … but we’ll see if we can’t sort through it all in coming weeks.

Newitt, interestingly enough, probably has the strongest case against Full Tilt, imh-not-a-lawyer-o. But it’s the least interesting to Pokerati because, frankly, it’s just a contractual dispute that touches on no “issues” of bots, datamining, or Maxim photo shoots. Part of his case also gets into a personal divorce matter, where he was sued by his ex-wife, a Full Tilt contractor, who may or may not have made claims for her piece of her ex-husband’s (alleged) piece. Damn, that would have to raise a judge’s eyebrow.

Anyhow, blah blah blah … I’ve already said more about all these cases than I intended — because I’m cautious about saying too much since I don’t quite understand the nuances of Nevada legal procedure and wouldn’t want to be like others already declaring Clonie’s case dead.

It’s not. Her federal case may or may not be thrown out for good on February 1. Lawyers tell me it would be highly unusual for a breach-of-contract case to be dismissed at this stage, too … especially considering that at least some semblance of a relationship obviously existed all over the internet.

As suggested by Full Tilt’s most recent legal action … the American-friendly poker company hopes the other cases have to move forward with a declaration from a federal judge that Clonie’s case was thrown out because she definitively and clearly had no ownership shares of the company. But if you think about all the hubbub over pre-trial motions … you can imagine how juicy it might get should any of these causes ever get a full jury hearing.

And here’s the 2+2 thread from 2007 when the key plaintiff — Lary Kennedy (aka “pokergirl_z” on Full Tilt) — first spelled out her beefs that led to this lawsuit … mostly stemming from a series of heads-up matches against a Full Tilt player known as “TheComplainer”.

Kennedy is the real plaintiff. Greg Omoroy is just a guy who owned another account she used (which is a whole-nother issue altogether). And though they aren’t formally seeking class-action status, they do seem to be laying the groundwork for such a possibility — an aggressive legal play for sure.

Essentially, the allegations are that Full Tilt — with unfettered ability to label a player a bot, confiscate her money, and smear her name by calling her a bot — constitutes organized crime … being perpetuated by Californians against Californians, in violation of all sorts of California business and gaming laws.

They also say that “Playing Against the Pros” is tantamount to gambling against the “house” … there’s an added boogeyman with allegations that Full Tilt is running its own bots on the site … and a new-to-me company gets discussed, too: Verta Enterprises, out of St. Kitts.

On the surface, that seems less shakedown/extortion-y than other California lawsuits against Full Tilt. But the class-action possibilities suggest this suit is really looking for penalties in the hundreds of millions or more — you know, the kind of money the Feds have been collecting from longtime online gambling purveyors looking to get on the USA clean list.

If it turns out pokergirl_z was not a bot — and she claims to have video proof — it could be quite the expensive security goof.

Click below for further breakdown of the suit:

The defendants:
Full Tilt Poker
Chris Ferguson
Howard Lederer
Ray Bitar
Phil Gordon
Phil Ivey
Perry Friedman
John Juanda
Erick Lindgren
Erik Seidel
Mike Matusow
Allen Cunningham
Gus Hansen
Patrik Antonius
Tiltware LLC

The claims:
Fraud
Violations of the RICO Act
Violations of California Business and Professions Code
Unjust enrichment
Libel
Slander

Damages:
Without specifying an amount, they seek compensatory and punitive damages, to be determined by the court upon seeing the evidence of how much money Full Tilt makes.

1. FRAUD
Full Tilt misled her as a customer and did not deliver what they promised.

2. RICO
Racketeering=organized crime. They specifically finger Ferguson and Friedman for running an unlicensed card room.

3. BUSINESS CODE VIOLATIONS
In California, unfair competition and false advertising are illegal business practices … allegedly committed not just against Kennedy, but thousands of players in the state of California — and they’ll need to see the books to figure out just how much money Full Tilt has made from said illegal business practices. Or in other words, Full Tilt being Full Tilt violates the law and deceives the public.

4. UNJUST ENRICHMENT
See above. Claim is that Team Full Tilt got rich in ways they shouldn’t have.

5. LIBEL
Full Tilt postings calling her a bot are false statements that have done her harm.

6. SLANDER
Same as above, covering oral statements.

Jason Newitt
v.
Tiltware; Full Tilt Poker; Pocket Kings Ltd.; Pocket Kings Consulting Ltd.; Raymond Bitar; Howard Lederer
9/11/2009

Contract action. Plaintiff says he was unfairly fired, and that his distribution payments were unfairly ceased. Defendants then took control of his ownership.

Newitt was the former Tilt employee responsible for inadvertently forwarding Howard Lederer e-mail about Jimmy “Gobboboy” Fricke (the “freak and very weird dude”) — an “oops” that revealed a little something about Lederer and Bitar’s positions and powers within the Full Tilt money machine. Whether or not this had anything to do with Newitt’s dismissal and the subsequent lawsuit remains to be seen until we get our sneaky little hands on the court documents.

PokerNewsDaily followed suit:

With the majority of the case being dismissed with prejudice and only Tiltware, Bitar and Lederer eligible for any further action, Gowen’s lawsuit appears to be dead at this time.

And then PokerNews reported “Gowen Lawsuit Against Full Tilt Dismissed”.

These hedlines are for the most part inaccurate, and at a minimum misleading. Clonie’s lawsuit is still alive … the courts have simply stripped out some irrelevant defendants while considering motions for expedited discovery, and her team has 30 days to amend their complaints around the still relevant defendants, i.e. Tiltware, Howard Lederer, and Ray Bitar. These recent rulings may be considered setbacks, but it’s not like she has to start from scratch to “refile”.

Read the court documents for yourself:

Gowen Motions Denied
Gowen Hearing Vacated

Now granted, these are a little confusing, so Pokerati has made half-hearted attempts to contact attorneys on both sides of the case, and have received no response from either. We’ve also contacted insiders on both sides of the case, whom literally say the exact same thing: “It’s definitely not over”. To be sure, on both sides, no one’s celebrating nor stomping about wildly screaming “Appeal!” bemoaning these most recent decisions.

In the meantime, to help us understand, Pokerati has brought in an independent, poker-savvy legal expert from a neighboring state to help translate:

Let me break this down into 2 parts:

1. What was the precise order of the Court on the motion to dismiss? I don’t know. The docket only reveals as follows:

MINUTES OF PROCEEDINGS – Motion Hearing held on 4/27/2009 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: Robert Rosenthal; Def Counsel: Walter Cannon; Court Reporter/FTR #: A. Bareng; Time of Hearing: 10:35a.m.; Courtroom: 7D; The Court shares inclination to grant the dismissal and seeks arguments of counsel with respect to which parties the Court ought to allow amendment. Arguments of counsel are heard. The Court advises that it will issue its written decision GRANTING the 72 MOTION to Dismiss, and allowing amendment as to certain of the parties. (no image attached) (Copies have been distributed pursuant to the NEF – KXG) (Entered: 05/01/2009)

The written decision is not yet available (at least for me to review online). But that highlighted sentence — no matter how you slice it – clearly means the case is not over. The court said it was “allowing amendment as to certain of the parties.” Quote those Minutes of Proceedings – it’s docket entry 103 (enclosed; entered May 1, 2009)

2. What do I *think* was the Court’s order and why do I think that?

I think the Court’s order was to grant the motion to dismiss with prejudice as to everyone except Tiltware, Bitar, and the Professor, against whom the motion was granted without prejudice (and with leave to amend).

I think that was the order based on a combination of (a) the above reading of the minutes of the docket and, (b) trusting Gowen’s lawyers’ description of the ruling in their motion for reconsideration. The relevant part Gowen’s motion is the first sentence here:

Your hypothetical you write below is not unusual – you can sue defendants x, y, and z, and defendants x and y win their motion to dismiss with prejudice and are out of the case for good, but party z only wins the motion to dismiss without prejudice and with leave to amend. The case is not over as to party z – plaintiff gets another bite at the apple, so to speak, if a timely amended complaint is filed.

It is technically accurate to state that Gowen’s case has been dismissed. That’s true. The case was dismissed. But it is misleading to state that the case is over. The dismissal as to certain defendants was without prejudice and Gowen expressly has the right to try again against those defendants. And a smart plaintiff lawyer – given the defendants’ briefing and the Court’s decision – will often try to (if possible) plead around the issues that led to dismissal in the first instance. In other words, you don’t just get another bite at the apple; you get a bite at the apple *knowing* what the defendants’ and Court’s views are on the previous version of the complaint, which is helpful. ((We just wrapped up a case where prior counsel lost two rounds of motions to dismiss; we stepped-in; filed a new, third amended complaint, defeated the next motion to dismiss, and eventually settled; it’s all salvageable, depending on the facts))).

This may or may not be connected to proposed legislation in California to allow players to gamble online within state lines.

Developing, obviously.

Click here to download and read the lawsuit.

UPDATE: Looks like this likely is a nuisance shakedowny kinda case … though personally I’m still suspicious that the proposed California intrastate online gambling bill might have something to do with it. From the Pokerati legal advisory team’s Cali branch:

This is really an attorney driven case under a California law called the “Unfair Competition Law” (UCL) that basically says, in part, that if any party is committing an act that is “unlawful” (i.e., violates a statute), that party can be enjoined from those unlawful acts and…..must pay the plaintiff’s attorneys fees. In other words, there probably is no harm to the plaintiff, but that may be irrelevant. This is really just a vehicle to get some attorneys fees paid.

Those interested in reading the case can read the amended complaint and her motion for expedited discovery over at Scribd.com:

Amended Complaint
Motion for Expedited Discovery

We all knew something fishy was going on with Clonie and Full Tilt, right? And we’ve always wondered how exactly Full Tilt operates — seriously it’s kinda a mystery, even to people who work for them — and now, with Clonie Gowen suing four different companies connected to the game so many play with the pros, we should find out quite a bit of interesting info.

As far as I know, this is the first time any online poker biz that operates in the grayish world of processing money from American players (really really light gray, but still … ) will have to show its stuff publicly. Even Ultimate Bet/Absolute, with all the audits and investigations hasn’t really had to show anything it doesn’t want to to anyone outside its own semi-corporate family.

Um, hole-card cameras in the courtroom?

Official court docs here.

Gowen v. Tiltware LLC, et al.,
Plaintiff: Cycalona Gowen
Defendant: Full Tilt Poker, Tiltware LLC, Pocket Kings Ltd., Kolyma Corporation, A.V.V., Raymond J. Bitar, Howard Lederer, Andrew Bloch, Phillip Ivey, Christopher Ferguson, John Juanda, Phillip Gordon, Erick Lindgren, Erik Seidel, Jennifer Harman-Traniello, Michael Matusow, Allen Cunningham, Gus Hansen and Patrick Antonious

Case Number: 2:2008cv01581
Filed: November 14, 2008

Court: Nevada District Court
Office: Las Vegas Office [ Court Info ]
County: Clark
Presiding Judge: Judge Robert C. Jones
Referring Judge: Magistrate Judge Robert J. Johnston

Nature of Suit: Contract – Other Contract
Cause: 28:1332 Diversity-Other Contract
Jurisdiction: Diversity
Jury Demanded By: Plaintiff

They’re talking about it on 2+2, and the summary of her allegations below comes from the Hendon Mob:

In the complaint, she alleges the following —

In 2004, Clonie was offered (and accepted) 1% ownership of Tiltware and FTP in exchange for being a celebrity representative…

Has worn FTP merchandise and promoted FTP in exchange for that ownership interest (no other compensation)…

In May 2007, all Team FTP members received distribution checks but her…she demanded distribution owed to her, refused…

Nov 6, 2007, Lederer offered to pay her $250k for her past performance on behalf of company, she refused cuz only fraction of what was owed to her…

Clonie estimates company worth $4 billion…

Despite not being paid, continued to work and promote company until November 11, 2008, when she was informed that FTP would issue a press statement informing public she was no longer a Team FT Pro…

Still has not been given reason all other Team FT pros given distribution but her…

Claims against all defendants:

1. Breach of Contract — claiming damages of $40 million…
2. Breach of Fiduciary Duties
3. Breach of Covenant of Good Faith and Fair Dealing
4. Unjust Enrichment

5. Fraud/Intentional Misrepresentation (alleges Bitar contacted her in 2004 and told her they wanted her to be “the FTP female pro”…then in May 2004, attended meeting at Golden Nugget in Ivey’s Suite…majority of Team FT was there, and Lederer led the meeting…He informed group that their ownership interests were not only in FTP but also in Tiltware, and Tiltware would charge FTP a high leasing fee.

Go Batfaces!