Two Sides Spar in CAW Lawsuit: Is It ‘Weaponization of Technology’ or ‘Smear’ Campaign Against Top Tracks?

[Wandering Eyes]

In the days leading up to and after Christmas, parties on both sides of the pending class-action lawsuit involving computer-assisted wagering (CAW) have sparred in federal court over whether allegations that the nation's biggest racetracks have conspired with “insider” high-volume bettors to rig pari-mutuel pools at the expense of average horseplayers constitute valid claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The defendants in the lawsuit-which include The Stronach Group (TSG), Churchill Downs, Inc. (CDI), the New York Racing Association (NYRA), AmTote International, United Tote and Elite Turf Club-have yet to submit legal responses to the litigation.

But those entities all filed letters with the court Dec. 19 that, taken together, described their CAW and rebating practices as neither “unfair” nor “fraudulent,” while purporting that plaintiff Ryan Dickey is using “hyperbole” and “rhetoric” to generate “headline-grabbing” attention designed to mislabel “common, lawful practices” as wrongdoing.

The defendants stated that they intend to lodge motions for dismissal in United States District Court (Eastern District of New York), alerting the judge to the fact that they believe Dickey's RICO claims are unfounded and should not be allowed to move forward.

Although the case aspires to be a class-action lawsuit (which would open it up to a theoretically unlimited number of aggrieved, small-scale bettors) it has yet to be certified as such in court, so Dickey stands as the lone David-versus-Goliath plaintiff at this point.

Dickey, a Colorado resident who stated in his complaint that he routinely wagered about $100 weekly for 15 or 20 years before quitting horseplaying about 18 months ago over what he descried as frustration over the “manipulation of the betting pools,” fired back with his own correspondence to the judge Dec. 29.

Dickey, via his attorney, responded to each of the letters submitted by the defendants 10 days ago, and his correspondence to the judge asserted that since the tracks and bet-taking companies “maintain meticulous, auditor-ready records, there is no question that Plaintiff can not only conceptualize their injuries but quantify them with precision.”

The controversy around CAW play has intensified and drawn growing criticism over the past several years. Two examples published in TDN in just the past week are here and here.

As TDN's Dan Ross reported when the lawsuit was first filed Oct. 24, complaints about CAW play typically surround the predatory edge those privileged players allegedly wield over smaller-scale “retail” customers thanks to their use of sophisticated technologies that allow them to precisely read the markets and to place massive bets across many pools in the final seconds of betting, as well as the attractive rates and rebates offered to them that are unavailable to the average horseplayer.

Although it's not surprising that a federal lawsuit eventually got initiated over the CAW and rebating, the RICO charges stand out.

RICO is a sweeping 1970 federal statute initially designed to combat the Mafia. But RICO has long since lost its “organized crime” stigma, evolving over the decades into a civil litigation component more often asserted by purported victims of white-collar crime.

Dickey's lawsuit alleged that as a result of the CAW “scheme,” betting pools are not being operated in lawful pari-mutuel fashion, and have thus become illegal gambling schemes.

“And the 'odds' presented to the average bettor at the time a bet is placed are false as a result of the manipulation of the bettors' pool,” the lawsuit stated.

Furthermore, “Because of the unfair advantages provided to members of the Insider Betting Group, they receive an inordinate share of the pools, taking profits that should rightfully should have been the property of Class Members,” the lawsuit stated.

The Dec. 19 letters from the defendants essentially told the judge not to buy that line of reasoning.

Jointly, TSG, AmTote and Elite Turf Club (described as “The Stronach defendants”) wrote that, “At bottom, the Complaint bemoans decades-old technology to attempt to allege a racketeering conspiracy to commit fraud where none exists-and in a licensed market tightly regulated on federal and state levels, including by the federal Interstate Horseracing Act…

“Plaintiff should not be able to smear the Stronach Defendants with a headline-grabbing, facially futile RICO suit,” the joint letter continued.

“Plaintiff takes issue with technologies and betting practices that, he feels, unfairly advantage a small set of bettors who leverage data and technology to place a high volume of bets on these platforms,” the Stronach defendants' letter continued.

“Trouble is, the conduct Plaintiff criticizes is nothing beyond variations on common, lawful practices, and on the very technology enabling Plaintiff and other bettors to remotely wager on races, enjoying some of the same advantages he complains high rollers receive,” the joint letter stated.

“CAW lets users apply computer analytics to horse racing, just as high-frequency traders do in stock and bond trading and just as some gamblers do in sports betting. To the extent those analytics advantage CAW players, there is nothing unfair or fraudulent. CAW bettors access the same data as other bettors; they simply crunch it differently,” the joint letter stated.

“The rebates, too, are unremarkable. They are nothing beyond an incentive, like a free room at a Vegas casino or a frequent flyer's first-class upgrade, designed to keep high rollers' business and support the racing ecosystem,” the joint letter stated.

“Stripped of its hyperbole, the Complaint does not allege insider betting, bet rigging, or any other unfairness or fraud,” the Stronach defendants summed up.

“Rather, it alleges that frequent, high-dollar bettors use technology to improve their gameplay, and that tracks offer incentives to their best customers. That is no criminal conspiracy, let alone a RICO enterprise spanning a huge share of the Thoroughbred racing industry….”

CDI and United Tote responded together, continuing on the Stronach defendants' riff:

“Plaintiff's Complaint acknowledges a basic fact of pari-mutuel wagering: odds change. That is the system-every new bet alters the pool and shifts the odds,” CDI and United Tote wrote.

“Yet Plaintiff insists that this ordinary feature becomes a RICO violation when bettors using 'CAW' place late bets,” CDI and United Tote wrote.

“But even if CAW wagers have the potential to move odds more than do wagers placed without CAW, that does not make the posted odds 'false,' much less a predicate act under RICO,” CDI and United Tote wrote.

“No amount of rhetoric can transform a basic feature of wagering into racketeering. Plaintiff's claims should be dismissed,” CDI and United Tote wrote.

NYRA told the judge that, “Not only does Plaintiff fail to allege predicate acts constituting 'racketeering activity,' Plaintiff also fails to allege NYRA's involvement in any pattern of such activity or the existence of or NYRA's participation in the operation or management of any RICO enterprise.”

Dickey's Dec. 29 responses took on all three of the above-referenced missives.

“The central theme of Stronach's letter asserts-wrongly-that [Dickey] bemoans advances in wagering technology. But Plaintiff takes no issue with technological progress; what Plaintiff challenges is Stronach's deliberate use of that technology to confer unfair, concealed advantages on a privileged subset of bettors and to divert money away from ordinary players.”

“This case has nothing to do with resisting innovation. It concerns the weaponization of technology to siphon value from the Class and funnel it to members of Stronach-run Elite Turf Club, which, in turn, generate additional revenues for Stronach. Stronach pays lip service to the proposition that bettors are the 'financial foundation' of horse racing but participates in looting Class members to benefit their CAW customers…

“That the scheme has harmed Class members is beyond dispute. Stronach itself admits, in a filing with its California regulator, that allowing its CAW players to wager into the pools at California racetracks increases the effective takeout borne by retail bettors by 2.50%,” Dickey wrote.

“Stronach's own conduct further confirms this harm: its partial restrictions on CAW play-such as Santa Anita Park's ban on CAW wagers placed within two minutes of post time in the win pool-reflect an acknowledgment that CAW participation distorts the pools to the detriment of ordinary bettors,” Dickey wrote.

“The Complaint is explicit about the injury Plaintiff suffered,” Dickey's correspondence stated. “[Smaller bettors'] wagers are devalued.

“The resulting shift in odds and corresponding financial loss is directly traceable to the scheme described in the Complaint-facts Defendants do not contest,” Dickey wrote.

“NYRA's effort to minimize its conduct also fails as a matter of standing and jurisdiction. Plaintiff alleges direct, concrete economic injury arising from NYRA's own participation in a scheme that manipulated wagering pools at NYRA racetracks to confer concealed advantages on CAW partners. The Complaint is full of detailed allegations regarding NYRA's participation in the scheme and the injuries thereby caused to Plaintiff and the Class,” Dickey wrote.

“These allegations further establish that NYRA was an active participant in a RICO enterprise-working in concert with CAW platforms, other racetrack and betting pool operators and totalizer companies to manipulate pari-mutuel wagering pools through coordinated conduct that diverted money from Class members to NYRA's CAW partners.” Dickey wrote.

“NYRA urges dismissal of Plaintiff's state law claims, while not offering a shred of authority or analysis for any of these wished-for propositions,” Dickey wrote.

“Churchill's passing reference to arguments it elected not to brief should be disregarded, and it should not be permitted to engage in an ongoing, nonstop effort to seek dismissal through a rolling series of piecemeal motions,” Dickey wrote

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