Gamblers to appeal ruling on marketing of slots

Tuesday, July 16, 2002 | 11:12 a.m.

Attorneys for a group of gamblers have sought permission to appeal a recent decision by a federal judge in Nevada that denied class action status to a potentially damaging lawsuit against the casino industry.

The lawsuit -- which names three gamblers as plaintiffs and dozens of casinos and their suppliers as defendants -- alleges that slot machines misrepresent their true odds of winning.

A few weeks ago, U.S. District Court Judge Roger Hunt denied a motion for class action status, saying there wasn't enough evidence to determine whether each potential member of the class shared the same claim. That would require proof that the allegedly fraudulent marketing of the slot machines led class members to play them, Hunt wrote in his denial.

In a legal procedure similar to that of used in litigation against the tobacco industry, plaintiffs attorneys last week filed a petition with the 9th Circuit Court of Appeals in San Francisco for permission to appeal the denial.

The petition rejects the denial on legal grounds, arguing that other courts have ruled differently on such matters.

"If that were the case, you could never really have a class action in a case where consumers have been defrauded," plaintiffs' attorney David Barrett said Monday. "Whenever you buy something, there are lots of reasons why you buy it."

Should the petition for appeal be rejected, the firm will weigh whether to move ahead with separate lawsuits against the casino industry by the three individual plaintiffs, Barrett said. Such action could be economically infeasible, yet would still be considered an option, he said.

Dennis Kennedy, a partner with Lionel Sawyer & Collins in Las Vegas and co-lead defense counsel, said he will respond to the request by filing a rebuttal with the court stating that the plaintiffs should not be allowed to appeal.

Barrett is a partner with Boies, Schiller & Flexner LLP in New York City, a law firm specializing in class actions against corporations. Senior partner David Boies represented the U.S. government in its antitrust case against Microsoft and later, represented the Internet music service Napster against efforts by the recording industry to shut it down. Partners also pursued a class action suit on behalf of art buyers against auction houses Sotheby's and Christie's for alleged price-fixing.

"These are good lawyers," Kennedy said of Boies' pedigree. "We expected to see what was in (the petition)," however, he said. "Our opposition will be a good piece of work."

The U.S. Court of Appeals has no deadline to make a decision.

The legal action stems from a suit filed in 1994 by a gambler in Florida. The complaint, amended to include additional plaintiffs and claims, was transferred to the U.S. District Court in Nevada that year. Plaintiffs filed a motion for class certification in 1998.