A Blank Rome team comprised of lawyers from the firm’s Gaming, Sports & Entertainment industry team and Appellate Litigation practice group secured a significant victory for BetMGM and the gaming industry in the Third Circuit Court of Appeals (“the Court”). The Appeals Court ruled that Appellant Sam Antar failed to state plausible New Jersey Consumer Fraud Act (“CFA” or “the Act”) or negligence claims and affirmed the U.S. District Court for the District of New Jersey’s Order of Dismissal.
Antar originally filed a lawsuit against BetMGM and other defendants, alleging that that they enticed him to wager despite purportedly knowing about his gambling addiction. The District Court judge handed our client and the gaming industry at large a victory when she dismissed the case, finding that the New Jersey Consumer Fraud Act did not apply to Antar’s claims, and New Jersey law and regulations governing gambling do not create a common law duty of care for casinos towards compulsive gamblers.
Antar appealed to the Third Circuit, where the Court rejected his argument that BetMGM engaged in unconscionable commercial practices by offering him enticements to gamble because Antar never alleged that BetMGM misled him by offering bonuses, credits, and deposit matches.
The Third Circuit also found that Antar’s claim failed on the “ascertainable loss” element of a CFA violation. A loss under the CFA is ascertainable when it is “quantifiable or measurable.” Antar only pled that his total “gambling activity exceeded $24 million.” The Third Circuit rejected Antar’s claim because he could not explain how the Court would be able to differentiate the losses he claimed to have suffered as a result of BetMGM’s alleged unconscionable conduct versus ordinary losses that may be anticipated from playing a casino game.
This appeal also asked the Court to decide whether a casino had a common law “duty of care” owed to a known compulsive gambler. The Third Circuit declined to impose such a duty given the existing case law in New Jersey and the elaborate regulatory scheme adopted by the New Jersey Legislature over New Jersey’s casino and gaming industry under the Casino Control Act.
The Blank Rome team was led by Stephen M. Orlofsky, Timothy K. Lewis, Daniel E. Rhynhart, Stephen D. Schrier, Lauren E. O’Donnell, and Michael R. Darbee.
