Colin A. Young| State House News Service
BOSTON The Mass. Gaming Commission decided Wednesday to work towards filing an amicus brief in a lawsuit that alleges Encore Boston Harbor has been duping customers by paying out at less favorable odds for blackjack wins after commissioners previously agreed amongst themselves that weighing in could give the perception that the regulators were siding with the casino they are meant to oversee.
At issue is aclass action complaintfiled in U.S. District Court in 2019 alleging that the Everett casino "brazenly" stoleand will continue to stealfrom customers by ignoring "established rules of the game of Blackjack to increase its statistical advantage and lower the lawful payouts owed to its customers." The complaint takes specific issue with the Wynn Resorts casino paying out a blackjack -- when a player is dealt an ace and any card having a point value of 10 -- at 6-to-5 odds rather than at 3-to-2 odds.
"While this may not sound significant, an analysis using conservative estimates and assumptions suggests that the aggregate loss to Massachusetts consumers is astounding. Assuming an average wager of $50.00 per hand and 80 hands of Blackjack per hour, Encore's customers can expect to lose $35.60 per hour more than the losses they are already expected to incur in a fair Blackjack game that complies with Massachusetts law," the suit alleges. "This means Encore is stealing $85,440.00 from its customers each day, or well in excess of $30 million each year."
Encore Boston Harbor has said the lawsuit is without merit and an initial 2019 Gaming Commission investigation into the allegation found that the casino was not violating any Gaming Commission rules or regulations and the commission has not taken any enforcement action.
Because a similar case against MGM Springfield that was dismissed by the Mass. Superior Court is now before the Supreme Judicial Court on appeal, the parties in the U.S. District Court case "requested and the judge agreed to provide the question bearing on the central issue in the case to the SJC for review to help ensure that the matters are resolved on uniform legal grounds," Gaming Commission General Counsel Todd Grossman said Wednesday.
The justices of the SJC have since issueda requestfor amicus briefs on the question: "Did the February 11, 2019 version of the Rules of Blackjack that were published by the Massachusetts Gaming Commission and posted on its website ... permit a Massachusetts casino to pay 6:5 odds to a player who was dealt a winning Blackjack hand, while not otherwise playing by the '6 to 5 Blackjack Variation' rules that were articulated in Rule 6a of the February 11, 2019 version of the Rules of Blackjack?"
The SJC is scheduled to hear arguments in the case against Encore Boston Harbor on April 7.
Grossman said he was approached weeks ago by lawyers representing the defendants in both cases who inquired about the commission's willingness to file a brief in either case and the four gaming commissioners discussed the matter in two January executive sessions.
At the time, commissioners agreed that they would not file a brief on their own, but would reconsider if a court made a formal request. Chairwoman Cathy Judd-Stein suggested commissioners were hesitant in January to get involved in the matter out of concern that it could be seen as forfeiting the commission's neutrality.
Now that the SJC has issued a general request for amicus briefs, the commission voted 4-0 Wednesday to begin the process of filing a brief. That process involves making a request to the attorney general's office, which makes the ultimate determination as to whether the brief will be filed. Grossman said briefs will be due around March 17.
The commissioners did not discuss Wednesday what the brief would say, but the commission's previous decisions and actions suggest that the regulators will tell the court that the 6-to-5 payout was in keeping with the rules as they stood at the time the suit was lodged.
"We were very confident in our earlier briefings that the licensee had complied with the rules of the game," Judd-Stein said Wednesday.
After the complaint attracted media attention in July 2019, the commission discussed the matter at a public meeting attended by casino officials and the attorney representing the plaintiff. Atthat meeting, Bruce Band, assistant director of the commission's Investigations and Enforcement Bureau, said that his team of investigators "reviewed the claims and have preliminarily found Encore to be in compliance with the commission's rules and regulations for paying out blackjack."
Band said the commission's rules for blackjack used "6-to-5" in two different ways: one to refer to a variation of blackjack that uses different dealing procedures than the standard game. That variation is authorized in Massachusetts but had never been dealt, he said. The other reference to "6-to-5" in the rules relates to standard blackjack and "includes options for the gaming licensee to pay out those wins at 3-to-2 or 6-to-5."
Band said the payout for a blackjack must be displayed on each table at the casino and that the IEB's preliminary investigation found that the payouts for blackjacks were properly displayed on Encore Boston Harbor's tables.
Executive Director Karen Wells, who led the IEB at the time the lawsuit was filed, said Wednesday that there were two things that "are important in establishing that there is information out there publicly demonstrating the integrity of the game at the Massachusetts casinos." She pointed out to commissioners Wednesday that "the IEB purposefully did not take enforcement action against either casino at the time these lawsuits were filed or since then."
Wells also reminded commissioners that theyapproved blackjack rules changesin October that Grossman said were "designed to ensure clarity."
All references to the "6 to 5 variation" of blackjack were removed from the commission's rules, which the commission said at the time would "remove the confusion between the game of blackjack using the option to pay blackjack at odds of 6 to 5."
"The changes ... address these concerns and clarify the meaning of 6-to-5 by eliminating the 6-to-5 variation from the game of blackjack and we think that that addresses the issues," Carrie Torrisi, the Gaming Commission's associate general counsel, said in October as she updated the commission on the two blackjack-related lawsuits and detailed the rules changes.
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