SALEM, Ore. (CN) – A man who claimed the Oregon Lottery’s video poker machines were rigged didn’t produce a viable class action, the state appeals court held.
Plaintiff Justin Curzi sued the Oregon Lottery and three companies that make its video poker machines in December 2014, seeking class action status and $134 million in damages.
He claimed the video poker machines’ “auto-hold” feature misleads players about how to increase their odds of winning a hand.
The auto-hold feature recommends playing strategies, and allows players to automatically discard and draw new cards with a single button, according to the complaint filed in Multnomah County Circuit Court.
“[R]elying on the auto-hold feature is the easiest and fastest way to play video poker, and the player must actively elect not to rely on the auto-hold feature in order to avoid following its recommended strategies,” Curzi claimed.
Both the lottery and the manufacturers moved to dismiss, arguing that Curzi didn’t raise any viable tort claims against them.
Finding that Curzi did not file his tort claim against the Lottery within the required time frame, State Court Judge Judith Matarazzo dismissed all of his claims with prejudice.
On appeal, Curzi took issue with the state court’s characterization of what he knew and when.
Prior to filing the lawsuit, Curzi had sought information about the auto-hold feature. In February 2014, the Lottery responded to Curzi, telling him that the feature does not necessarily recommend optimal playing strategies.
“The strategy to get to a winning hand is programmed by the terminal manufacturer, not the Oregon Lottery. In your case, the terminal did advise a strategy – granted not the only strategy – for you to have an opportunity to win with the cards you were dealt,” a representative of the Lottery wrote Curzi in an email.
But Curzi couldn’t prove that the Lottery had engaged in any sort of ongoing wrongdoing, an appellate court panel held Wednesday.
“The Lottery’s alleged wrongful conduct is substantially different from a continuing tort where either no single act gives rise to the tort claim or the plaintiff’s harm can be determined only at the end of a series of alleged wrongful acts based on the cumulative effect of the wrongful behavior,” Judge Scott Shorr wrote in the panel’s 20-page opinion.
The panel also upheld the state court’s dismissal of Curzi’s unjust enrichment claim and rejected his argument that the state waived sovereign immunity.
However, the lower court should not have granted prevailing party fees to the poker machine manufacturers, IGT Inc., GTech Canada ULC and WMS Gaming Inc., the panel held.
Because Curzi filed a class action, the companies could not recover those fees, even though the lawsuit was never certified as such, Shorr wrote.
Curzi’s attorney Jay Zollinger declined to comment, saying he was evaluating options.
Attorneys for the Oregon Lottery and the poker machine manufacturers did not respond to emailed requests for comment by press time.