A.  In the prior post, we mentioned that the federal judge (who is Hon. Frederick P. Stamp, Jr.) in the Stevens v. MTR Gaming Group, Inc., et al., case has certified several questions to the West Virginia Supreme Court (which is actually called the “Supreme Court of Appeals of West Virginia”).  You might have wondered what those questions might be.  Wonder no more, for here they are (although you may want to read the entire 8/25/15 Order in case WDWVa. case no. 5:14cv104 to more fully understand the context of the 3 questions):

1. What duty of care exists as to each defendant given the
allegation that the slot machines or video lottery terminals are
designed through the use of mathematical programs and algorithms to
create the illusion of chance while instead fostering a
disassociated mental state, to protect casino patrons from becoming
addicted to gambling by using these machines or terminals?
2. Are the gambling machines or terminals and specifically
the software in them a “product” under West Virginia products
liability law?
3. What legal duties, if any, arise under Moats v. Preston
County Commission, 206 W. Va. 8, 521 S.E.2d 180 (1990), given that
the suicide of Scott Stevens was a possible intervening cause?

The state’s high court has accepted the certified questions and established a briefing schedule, with the plaintiff’s initial brief due on November 2, 2015.

B. In a commercial gambling-related case not mentioned in the prior post, but which the PGLP has been watching, the Idaho Supreme Court issued a ruling last week. In a writ of mandamus case, Coeur d’Alene v. Denny, case no. 43169, the court ruled that mandamus should issue to compel the state’s Secretary of State to certify as law that the state legislature’s enactment of a statute to repeal its earlier authorization for so-called “instant racing” machines (which are also sometimes called “historical racing” machines or “horse slots”).

The case, ostensibly, relates to state-specific procedural issues and time-period-related responsibilities of the state’s executive branch; however, the events underlying the case appear to be that the commercial gambling industry misrepresented these EGMs to Idaho legislators as something different than addictive slot machines.  After the gullible legislature authorized these machines and they were brought into the state, it was quickly seen that any purported differences between horse slots and regular slots were immaterial.

Feeling tricked, the state’s legislators repealed the authorization, but the Governor and Secretary of State perhaps felt more loyalty to the commercial gambling industry than to the law and took steps to preclude the newer statute’s effect, but their true duty was rather clear, according to the Idaho court–and the attorney arguing the case on the state’s behalf felt the court’s wrath, given the basically unsupportable position he’d taken and evasive (or worse) answers/argument’s he’d supplied the court. Here’s a link to the opinion:  http://media.idahostatesman.com/smedia/2015/09/10/13/00/105d6s.So.36.pdf#storylink=relast

In no particular order of importance:

1. NCAA v. Governor of N.J., et al., nos. 14-4546, 14-4568, and 14-4569 (3d Cir. Aug. 25, 2015). Third Circuit panel rebuffs NJ’s effort to authorize sports gambling; some commentators predict en banc review or appeal to the USSC.
2. Kaplan v. Comm’r., IRS, no. 14-2342 (7/29/15); Eighth Circuit affirms Tax Court ruling imposing $37 million income tax, interest, and penalties liability on Gary Kaplan, previously-convicted operator of the then-largest illegal online sports book. Added to nearly $50m in forfeitures, case shows these prosecutions pay for themselves many times over: Tell your US Atty!
3. Judicial Watch, Inc. v. U.S. Department of Justice, no. 1:15-cv-1132 (D.D.C.).  Judicial Watch has filed a FOIA-based law suit vs. DOJ re the department’s ongoing failure to produce records relating to the Office of Legal Counsel’s evident misinterpretation of the Wire Act, announced in Dec. 2011; the defendant’s answer is due Sept. 18th.
4. Kelley, et al. v. Star Markets Co., Inc., no. 1581-cv-01174 (Middlesex Superior Court, MA) Injunctive relief and nominal damages sought by plaintiffs, whose complaint reveals supermarket chain’s disregard of responsibility for ensuring lottery ticket vending machines are not used by minors. When vendors’ interests are to sell as many tickets as possible, their continued exploitation and abuses of children seem likely, nation-wide.
5. Stevens v. MTR Gaming Group, Inc., et al, no. 5:14-cv-11111 (NDWV). Widow of respected businessman and community leader, turned addicted gambler and driven to suicide, sues a casino and slot machine designer/distributor.  Recently, the NDWV federal court has certified 3 state law questions to WVa. S. Ct. and denied, without prejudice (awaiting the answers to those questions), the defendants’ motions to dismiss.
6. Soto, et al. v. Sky Union LLC (“Castle Clash” case) and Phillips v. Double Down Interactive LLC (“Double Down” case) (both pending in Cook County, IL, Circuit Court). Plaintiffs identify unlawful gambling elements built into popular social media games.  Defense motions to dismiss pending.
7. Justin Curzi, On Behalf of Himself and All Other Similarly Situated Individuals v. Oregon State Lottery, IGT (Inc.), GTECH USA, LLC, and WMS Gaming Inc., case number 14CV20598 (Circuit Court for the State of Oregon, County of Multnomah).  The suit alleges the “auto hold” feature of video poker games is represented to players as implicitly providing the best possible playing strategy, but that the feature, in fact, does not maximize the players’ odds of winning and actually impairs those odds.  The suit seeks in excess of $134.0 million in monetary damages.  Appeal of the case’s dismissal is expected.
8. The Family Trust Foundation of Kentucky, Inc., d/b/a The Family Foundation v. Kentucky Horse Racing Comm’n., et al., no. 2010-CI-1154 (Franklin Circuit Court, Commonwealth of Kentucky).  Plaintiff seeks an advisory opinion regarding legality of so-called “instant racing machines,” also known as historical racing machines, which operate substantially as slot machines and are believed to present similar dangers. Case has been to Ky. S. Ct. already, which ruled plaintiff is entitled to discovery. Industry defendants appear to be non-compliant, which may suggest they have something to hide.  (In 2006, in a somewhat similar context, in Wyoming Downs Rodeo Events, LLC v. State, 2006 WY 55, the Wyo. S. Ct.  saw through the euphemistic “…racing” labeling of these electronic gambling machines (EGMs), saying “…[W]e are not dealing with a new technology here, we are dealing with a slot machine that attempts to mimic traditional pari-mutuel wagering. Although it may be a good try, we are not so easily beguiled.” Later, the state’s legislature was easily beguiled, however, and passed legislation authorizing these EGMs.)