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Bhfs.comBrownstein Hyatt Farber Schreck, LLP Introduction to Gaming Jennifer L. Carleton Kate Lowenhar-Fisher Association of Corporate Counsel Luncheon.

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Presentation on theme: "Bhfs.comBrownstein Hyatt Farber Schreck, LLP Introduction to Gaming Jennifer L. Carleton Kate Lowenhar-Fisher Association of Corporate Counsel Luncheon."— Presentation transcript:

1 bhfs.comBrownstein Hyatt Farber Schreck, LLP Introduction to Gaming Jennifer L. Carleton Kate Lowenhar-Fisher Association of Corporate Counsel Luncheon June 29, 2010

2 bhfs.comBrownstein Hyatt Farber Schreck, LLP 2 A Very Brief History of Gambling in the United States  Gambling has been popular in the United States since colonial times (esp. racehorses, dice, card games and lotteries)  The original 13 colonies used lotteries to raise revenue and build some of the nation’s finest universities  For most of the 18 th and 19 th centuries, commercial gambling was illegal in the U.S., but it flourished anyway (esp. in the West)  Casino gambling was legalized for a brief period (1820’s-1830’s) in New Orleans  Nevada, which became a state in 1864, legalized commercial gambling operations in 1869, but there was no real regulation  In 1909, anti-gambling forces succeeded in outlawing commercial gambling. Just two years later, social games were legalized again

3 bhfs.comBrownstein Hyatt Farber Schreck, LLP 3 The Modern Era of Gambling  In 1931, construction on Hoover Dam begins, and Nevada legalizes commercial casinos. The modern era of casino gambling begins  There is no real regulation. Local officials issue licenses in exchange for fees paid per game. The fees are split among municipal, county and state coffers  In 1945, the first state license is required, and fees are based on the percentage of gaming win estimated by the Nevada Tax Commission

4 bhfs.comBrownstein Hyatt Farber Schreck, LLP 4 Unsavory Elements  Many of the first casinos in Las Vegas are financed by mobsters  Perhaps the most famous is the Las Vegas Flamingo, which Bugsy Siegel opens in Despite his extensive criminal record, Bugsy receives a gaming license  The Flamingo helps to make Las Vegas the destination for high rollers

5 bhfs.comBrownstein Hyatt Farber Schreck, LLP 5 The 1950’s: Criminal Crackdown  The Kefauver Committee (U.S. Senate) holds hearings to investigate the criminal influences on the gambling industry  The committee finds widespread evidence of criminal elements and “skimming”  The nation is on the verge of a federal prohibition on gambling  The committee’s findings lead to a crackdown on and cleanup of the casino industry

6 bhfs.comBrownstein Hyatt Farber Schreck, LLP 6 Nevada Regulatory Framework  Nevada creates the State Gaming Control Board in Licensing of a casino owner is a privilege revocable by the state  Nevada creates the Nevada Gaming Commission in The NGC is independent of the Nevada Tax Commission, and its primary function is to establish and administer gaming regulations. The NGC and GCB (the NGC’s enforcement arm) develop extensive application and investigation procedures to screen gaming license applicants  1967 and 1969: Nevada passes corporate gaming laws to eliminate obstacles to the direct involvement of corporations in the casino industry. Casino operators now have greater access to capital through legitimate debt and equity markets. Public companies may acquire casinos  1973: Harrah’s Entertainment is traded on the NYSE

7 bhfs.comBrownstein Hyatt Farber Schreck, LLP 7 State Regulation of Gambling  Up until 1976, the law governing commercial casino gambling in states outside Nevada is the criminal law  In 1976, a referendum passes in New Jersey to legalize casinos in Atlantic City. New Jersey becomes the second state to legalize casino gambling. The New Jersey Casino Control Act passes in 1977, and the first New Jersey casino, Resorts International, opens in 1978

8 bhfs.comBrownstein Hyatt Farber Schreck, LLP 8 Regulation Regulation Regulation  About 10 years later, many other states follow...  Every state has its own, unique regulatory framework  All state regulatory frameworks have in common the objective of ensuring the integrity of the gambling games and the suitability of those who control and operate commercial casinos  Rigorous internal controls (operational, accounting, etc.)  Comprehensive personal and financial background investigations of individuals associated with gaming  Local license required for gaming (and liquor)

9 bhfs.comBrownstein Hyatt Farber Schreck, LLP 9 Gambling in the U.S. Today  Some form of gambling is currently legal in almost every state. Gaming tax revenue!  Forms of legalized gambling include commercial casinos, pari- mutuel wagering, Native American casinos, racinos, charitable gaming and lotteries  Gambling over the Internet is a hot topic in the U.S. Although some debate still exists regarding whether certain federal laws prohibit all forms of interstate Internet gambling, it is the current view of the U.S. Department of Justice that all forms of interstate Internet gambling are illegal

10 bhfs.com 10 Indian Gaming Case Study – Intellectual Property License Agreement ▪Representation of Nevada casino operator in negotiation of a License Agreement to rebrand the flagship resort property of a western Indian nation

11 bhfs.comBrownstein Hyatt Farber Schreck, LLP 11 Challenges  Negotiation with Tribal Subsidiary  Enforceability of Agreement  Federal Approval

12 bhfs.comBrownstein Hyatt Farber Schreck, LLP 12 Negotiation with Tribal Subsidiary  Corporation formed under Tribal law  The Tribe operates its hotel and casino through a corporation formed under Tribal law  The authority of the Tribal Corporation to negotiate and execute the License Agreement with the Nevada casino operator was unclear  Both parties to the License Agreement needed to address the possibility that changes in Tribal law could impact their available rights and remedies  Applicable Law/Organizational Documents  Tribe’s Constitution  Gaming Compact between the Tribe and the State  Tribe’s Corporate Code  Tribal Corporation By-laws and Articles of Incorporation

13 bhfs.comBrownstein Hyatt Farber Schreck, LLP 13 Opinions of Counsel  License Agreement required Tribal Corporation’s General Counsel to opine that:  The Corporate Board had authorized the execution of the License Agreement  The Corporate Board possessed the authority to execute the License Agreement  Execution of the License Agreement did not require the consent or authorization of the Tribal Government  Execution of the Agreement and performance under the Agreement by the Tribal Corporation did not violate any Tribal laws, orders, or agreements  No governmental consents were necessary for the Tribal Corporation to execute or perform under the Agreement  The choice of State law to govern the License Agreement did not violate Tribal law  License Agreement required the Tribe’s Counsel to opine that:  There were no actions, suits, proceedings or investigations pending or threatened against the Tribe affecting the ability of the Tribal Corporation to perform under the License Agreement

14 bhfs.comBrownstein Hyatt Farber Schreck, LLP 14 Changes in Tribal Law - Options  Noninterference Agreement to be executed by the Tribe, pursuant to which the Tribe would agree not to take any legislative action that would have an adverse effect on the Tribal Corporation’s ability to perform its obligations under the License Agreement, or which would materially impair the Licensor’s rights under the License Agreement  Contract provision addressing the effect of a change in Tribal law that prejudiced the Licensor’s rights under the License Agreement, including the right to payments due

15 bhfs.comBrownstein Hyatt Farber Schreck, LLP 15 Enforceability of Agreement  Indian Tribes and their wholly-owned subsidiaries enjoy sovereign immunity from suit, unless that immunity is waived  In order for the provisions of the License Agreement to be enforceable against the Tribal Corporation, the Tribe must waive the Corporation’s sovereign immunity from suit  Applicable Tribal law  Is the Corporate Board empowered to act independently to waive the Tribal Corporation’s immunity?  Are there any limitations or restrictions on the ability of the Tribe to waive the immunity of the Tribal Corporation? (i.e. choice of law or venue restrictions)

16 bhfs.comBrownstein Hyatt Farber Schreck, LLP 16 Waiver of Sovereign Immunity  Tribal Court  The Tribal Corporation could not be sued, even in the Tribe’s own courts, without a waiver of its sovereign immunity  Does the Tribe have a well-established trial and appellate court, as well as published case law?  Federal Court  A waiver of sovereign immunity that would allow for claims to only be brought in federal court is not likely to be enforceable  A Tribe is not a “citizen” of any state for purposes of diversity jurisdiction; however, the incorporation of a Tribal entity pursuant to state law can create diversity for purposes of federal jurisdiction

17 bhfs.comBrownstein Hyatt Farber Schreck, LLP 17 Waiver of Sovereign Immunity (cont’d)  Governing Law. “The License Agreement shall be governed by general contract law principles and commercial law as adopted in the State. Any claims permitted to be asserted under the limited waiver of sovereignty provisions of the License Agreement shall be adjudicated in, and each party hereby consents to jurisdiction and venue of, any federal court located within the State and, in the event federal courts do not have jurisdiction, then any State court where venue is proper.”  Waiver Authority. “The Council of the [Tribe] has authorized ________________ to negotiate and execute a limited waiver of sovereign immunity of [the Tribal Corporation] and the [Tribe] as it applies to the License Agreement within the parameters set forth above.”

18 bhfs.comBrownstein Hyatt Farber Schreck, LLP 18 Federal Approval  Indian Gaming Regulatory Act (“IGRA”) - 25 U.S.C. §§  Congress vested the National Indian Gaming Commission (“NIGC”) with broad authority to issue regulations in furtherance of the provisions of IGRA  All agreements related to Indian gaming must be reviewed by the NIGC  The relationship between the Licensor and the Licensee cannot be deemed by the NIGC to be a “management contract” or create an “impermissible proprietary interest”

19 bhfs.comBrownstein Hyatt Farber Schreck, LLP 19 Management Contracts  A management contract is defined under the NIGC regulations as “any contract, subcontract, or collateral agreement between an Indian tribe and a contractor or between a contractor and a subcontractor if such contract or agreement provides for the management of all or part of a gaming operation.”  Management contractors are subject to a determination of suitability by the NIGC, which involves a time-consuming, expensive and thorough investigation  There are mandatory provisions and substantial limitations, including fee limits, on management contracts contained in the Code of Federal Regulations  Management contracts that have not been approved by the NIGC are void

20 bhfs.comBrownstein Hyatt Farber Schreck, LLP 20 Management Contract Terms  There is no definitive guidance on when an agreement that concerns the operation of an Indian casino is considered a management contract  Those provisions to be avoided include supplying operating capital, the establishment of operating hours, the hiring, firing, training, and promoting of employees, the maintenance of the casino’s books and records, and the preparation of the casino’s financial statements and reports  Management contracts have a fee cap set a 30% of casino net revenues or 40% of net revenues if the capital investment required and the gaming operation's income projections justify the higher fee  The NIGC has stated that any entity that provides planning, organizing, directing, coordinating, or controlling services to an Indian gaming operation is deemed to be "managing" those gaming operations

21 bhfs.comBrownstein Hyatt Farber Schreck, LLP 21 Impermissible Proprietary Interest  The NIGC has taken the position that no entity other than a tribe may possess a "proprietary interest" in the tribe’s gaming activity  This determination is fact specific and there is little guidance from the NIGC on what constitutes a proprietary interest  While there is no prohibition on compensation for services based on a percentage of tribal gaming revenues, agreements containing such compensation provisions are subject to a high degree of scrutiny by the NIGC  Development, financing, and operational agreements that meet or exceed management contract caps have been found by the NIGC to be “excessive”

22 bhfs.comBrownstein Hyatt Farber Schreck, LLP 22 Delayed Effectiveness  After the License Agreement was executed and submitted to the NIGC, the NIGC provided commentary and proposed revisions  The NIGC would not discuss or negotiate any of the provisions of the License Agreement with the Licensor  The License Agreement did not become effective until the date the parties received written confirmation by an authorized representative of the NIGC indicating that the Agreement was not required to be approved by the NIGC

23 bhfs.comBrownstein Hyatt Farber Schreck, LLP 23 NIGC Revisions to License Agreement  The NIGC required amendments to the License Agreement, including:  Deletion of most of the Licensor’s approval rights, such as approval of a third-party management contractor and any of the Licensee’s standard operating procedures related to gaming  Specific limitations on the ability of the Licensor’s personnel to consult, assist, advise or direct the Licensee in any way with respect to matters involving gaming  Deletion of any reference to gaming procedures or systems  Addition of representations and warranties by the Licensor that it would not require the Licensee to modify or supplement any of its gaming-related management decisions or gaming-related operational procedures

24 bhfs.comBrownstein Hyatt Farber Schreck, LLP 24 Federal Approval  After the License Agreement was amended to the satisfaction of the NIGC, it issued a “declination letter” stating that the License Agreement was not a management contract and consequently not subject to review by the NIGC pursuant to IGRA  This was only the second time that the NIGC has approved an intellectual property license agreement for an Indian casino

25 bhfs.comBrownstein Hyatt Farber Schreck, LLP 25 Our Contact Information Jennifer L. Carleton Shareholder Brownstein Hyatt Farber Schreck, LLP 100 North City Parkway, Suite 1600 Las Vegas, NV tel fax Kate C. Lowenhar-Fisher Shareholder Brownstein Hyatt Farber Schreck, LLP 100 North City Parkway, Suite 1600 Las Vegas, NV tel fax


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