At the request of the Texas Supreme Court, the appellate attorneys for the lottery players have filed a Response to Petition for Review. The Response outlines why the players believe the Supreme Court should not grant a review of the Austin court of appeals’ opinion in favor of the players.
Where do we stand?
By way of a recap, over 1,000 lottery players sued GTECH, the company that developed the Fun 5’s scratch-off game and sold it to the Texas Lottery. The plaintiffs contend that GTECH made the decision to use misleading language on the tickets that represented they would win five times the amount in the Prize Box if their tickets revealed a Money Bag symbol. In fact, this was not true. The players who are suing had Money Bag symbols on their tickets but were denied a prize.
GTECH argued to the local trial judge in Austin that it should be immune from being sued for fraud because it was merely doing what the TLC wanted it to do. GTECH asked the trial court to give it judicially-created “derivative immunity”. The trial court refused to do so.
GTECH appealed that ruling to the Austin Court of Appeals. In a scholarly and detailed opinion, the Austin Court of Appeals applied the legal test set forth by the Texas Supreme Court in the Brown & Gay Engineering v. Olivares opinion. The Austin court ruled that GTECH had failed to show that a judgment against GTECH would cause an unforeseen cost to the government’s budget. The court also found that GTECH failed to show that it had no discretion when it made the decision to keep language on the tickets that the players contend was misleading. The Austin court pointed out that GTECH is the expert in developing scratch-off games and the TLC was relying on GTECH to point out any problems that might be caused by the language GTECH decided to print on the tickets.
GTECH filed a Petition for Review with the Texas Supreme Court and argued that the Court should review the Austin court’s decision. The Supreme Court asked the players to file a Response which was filed today.
What happens next?
According to the Guide to Practice Before the Supreme Court of Texas, (pages 8-11), GTECH’s Petition for Review and the Response filed today will be presented to the Court for consideration on the first Tuesday after the Response is filed. That means both should be presented to the Court for consideration tomorrow, August 21, 2018. GTECH has 15 days to file a Reply to the players’ Response. The Court may wait to read GTECH’s Reply. It may deny GTECH’s Petition without waiting for a Reply. Or, if 3 of the 9 members of the Court decide they need more information, the Court may ask the parties for more detailed briefs. Only time will tell what the Court will do. As always, the best we can all do is remain patient and have confidence that the Supreme Court will agree with the players that nobody is above the law and that it would set a dangerous precedent to rule that the private contractor that operates the Texas Lottery and receives a percentage of all ticket sales cannot be sued for fraud.