Consumer protection – Casino – Win/loss information

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Where plaintiffs have brought a consumer class action against a defendant that operates a casino, there are facts sufficient to demonstrate that the plaintiffs have suffered an injury caused by the defendant’s failure to provide win/loss information, so they may proceed with their claim under G.L.c. 93A, §9.

“Plaintiffs bring this consumer class action, alleging that Blue Tarp Redevelopment, LLC, which operates a casino under the name MGM Springfield (‘MGM’), violated G.L.c. 93A, §2, by failing to send statements to its rewards card holders to notify them of their bets, wins, and losses and by failing to send notices to its rewards card holders to let them know how they can access their win/loss information (together, ‘win/loss information’), as required by G.L.c. 23K, §29, and 205 C.M.R. §138.13(4). They contend that, after MGM should have provided them with the win/loss information, they gambled from a less informed position than they would have otherwise. Plaintiffs do not seek actual damages. They seek declaratory and injunctive relief, and statutory damages under G.L.c. 93A, §9(3).

“MGM moves for summary judgment. It argues that plaintiffs have not suffered an injury separate and distinct from the alleged violation of G.L.c. 93A, §2, and cannot prove that MGM’s act or omission caused their alleged injury. They also seek summary judgment on an issue that would clarify the availability of statutory damages in a case of this type. For the following reasons, defendant’s motion for summary judgment is allowed in part and denied in part. …

“Plaintiffs are not merely claiming injury from not receiving the win/loss information. If that were the case they would define the class as all MGM rewards card holders who did not receive win/loss information, including those who never returned to gamble after acquiring a rewards card. … But that is not plaintiffs’ case. Plaintiffs claim that (i) after they should have received win/loss information, they returned to gamble; and (ii) if they had had the win/loss information, as they did at other casinos, they would have reduced their gambling, not put as much at risk, and reduced their losses. The requirement that gambling establishments provide rewards card holders with their win/loss information on a monthly basis was designed to put before gamblers information that might affect their choice about whether to gamble and, if so, how much.

“Gambling involves risking something of value for the chance of a reward. The odds of winning always favor the casino. So, as is implicit in the parties’ papers, over the long haul, a gambler is likely to lose money, although on any particular occasion she may go home a winner.

“One could look at this situation, as defendant suggests, as requiring proof by plaintiffs that, after not receiving win/loss information, the plaintiffs gambled and lost. But gambling at all (i.e., choosing to take a chance by placing money at risk in the hope of recovering that money and then some), which is done with less than all the required information, is itself the noneconomic injury that the disclosure of win/loss information is designed to address. Such noneconomic injury has been recognized in the law. …

“This is not the kind of ‘risk of injury,’ which Bellermann [v. Fitchburg Gas & Elec. Light Co., 475 Mass. 67 (2016)] found did not support a claim under §9. …

“In contrast, here the win/loss information was designed to be shared with rewards card patrons specifically to influence their decisions about whether to gamble and, if so, how much they should gamble. And obviously, when they chose to gamble they incurred a substantial risk of loss. … Here plaintiffs have offered evidence that when win/loss information was supplied in other contexts, they made changes to their gambling behavior, which, as Judge Kazanjian found, was consistent with published literature. Because there are facts before me sufficient to demonstrate that plaintiffs have suffered an injury caused by plaintiff’s failure to provide win/loss information, plaintiffs may proceed with their claim under G.L.c. 93A, §9. …

“In consumer actions under G.L.c. 93A, ‘if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of’ G.L.c. 93A, §2. G.L.c. 93A, §9(3). Plaintiffs are not proceeding with a claim for actual damages. Their recovery is therefore capped at the $25 statutory penalty. Plaintiffs contend that the $25 statutory penalty should apply ‘per violation,’ and therefore $25 should be assessed for each month MGM failed to send the required win/loss information after which plaintiff gambled. MGM challenges plaintiffs’ ‘per violation’ claim.

“MGM is correct on this issue. The plain language of §9(3) only allows for payment of $25; it does not allow for ‘per violation’ statutory damages. The plain language of §9(3) is in stark contrast to the express authorization of a per violation recovery for claims brought by the Attorney General. … Had the legislature wanted consumers to be able to recover a statutory penalty ‘for each such violation,’ it certainly knew how to write a statute to accomplish that purpose.”

Katopodis, et al. v. Blue Tarp Redevelopment, LLC (Lawyers Weekly No. 09-025-25) (12 pages) (Krupp, J.) (Suffolk Superior Court) (Civil No. 22-1850-BLS1) (Feb. 26, 2025).

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