Vegas casino companies deny throwing their weight around

Jason Straziuso

Thursday, Aug. 2, 2001 | 11:24 a.m.

JACKSON, Miss. -- Two operators of Vicksburg casinos argued Wednesday before Mississippi's high court they didn't exert undo influence over regulators' consideration of a proposed gambling house along the Big Black River.

David Kaufman, a Jackson attorney representing Ameristar Casinos Inc. and Harrah's Entertainment Inc., both of Las Vegas, said the casinos did nothing more than exercise their First Amendment right to petition the government over a grievance.

In October 1999, a Pike County jury awarded more than $3 million to landowner E.L. Pennebaker of Warren County and Jim Belisle of Multi-Gaming Management.

The two had sued over claims that AmSouth, Isle of Capri Casino, Harrah's and Ameristar conspired to influence the Mississippi Gaming Commission to block Multi-Gaming from developing a casino in east Warren County.

The Isle of Capri settled for an undisclosed amount before the case was tried. AmSouth, former Deposit Guaranty National Bank, reached a settlement in October 2000. Terms of that settlement also were not announced. Harrah's and Ameristar appealed to the Mississippi Supreme Court.

Kaufman acknowledged the casinos contacted Gaming Commission officials in private. He said the contacts were legal and part of the commission's open door policy.

Presiding Justice Chuck McRae questioned whether the conversations should have been in public so both sides could have had the opportunity to respond. McRae said calling the policy "open door" was "an interesting way of putting it."

When McRae asked attorney Neville Boschert, also representing the casinos, if private conversations with Gaming Commission officials gives the public confidence in the process, Boschert responded that all commission decisions are made in open hearings based on facts presented in open hearings.

Attorney Bill Spell, representing Pennebaker and Belisle, said the court would determine whether the role of competition would be enforced in the state. Spell said his clients were working in support of competition.

"We were on the right side of that issue, they were on the wrong side," Spell said.

In their defense, the casino attorneys cited the Noerr-Pennington doctrine, a U.S. Supreme Court decision dating back to 1961 that said an effort to influence governmental decisions, even to gain an anticompetitive advantage, does not create liability under antitrust laws.

Spell said Noerr-Pennington was not absolute or complete and that the casinos' actions could be an antitrust violation.

Boschert noted after the proceedings that a "sham" clause in the doctrine exists, saying if action to influence a government is to cover an attempt to interfere with competitor relations, then antitrust laws apply.

Pennebaker owns land next to the planned site for a casino and race track on the Big Black River by Belisle's group. The site was rejected by the Gaming Commission in 1996 as unsuitable.

The Vicksburg casinos, the City of Vicksburg and business groups opposed the development 13 miles closer to Jackson as harmful to tourism.

The casinos originally argued they exercised their constitutional right to free speech in opposing the Big Black site, which they said was unsuitable for a variety of reasons including environmental and historical.

"This is a very important case because it deals with the right to petition the government," Boschert told the court. "Both Ameristar and Harrah's played by the rules."