GA Court to Rule on Suit over TV Show Interactive Element

Text messages, cell phones, TV game shows, Howie Mandel ' none of these could have been contemplated by Georgia's colonial lawmakers when they first passed a law allowing gamblers to recover their losses through lawsuits. The current version of the law, found at Georgia's Office of Contract and Grant Administration Sec.13-8-3, is at the center of a case against NBC Universal and the producer of Mandel's hit show, 'Deal or No Deal,' now being considered by the Georgia Supreme Court. Hardin v. NBC Universal, S08Q0323.

The justices have been asked to interpret Georgia law for a federal judge overseeing a case filed by a group of Columbus, GA, lawyers on behalf of a proposed class of people who participated in the 'Lucky Case Game,' an interactive feature of 'Deal or No Deal.' The plaintiffs lawyers say the game ' in which viewers, like the contestants on the show, try to pick a lucky suitcase ' ran afoul of Georgia law because participants were charged 99 cents to play through their cell phones.

NBC Universal and the other defendants say they are not obligated to return the 99-cent fees because viewers could play for free on the Internet. The defendants also argue that they weren't winners in a gambling contract. The winners, they say, were the participants who picked the right suitcase and were then chosen from a random drawing to get at least $10,000. (At press time, the 'Lucky Case Game,' according to NBC's Web site, was 'taking a short break.')

The federal judge overseeing the case, Senior Judge William C. O'Kelley, has suggested that 'probably' tens of millions of dollars are at stake in the case. It was brought in the U.S. District Court for the Northern District of Georgia by Forsyth County residents Michael and Michele Hardin, who say they're regular viewers of 'Deal or No Deal' and have played the 'Lucky Case Game' multiple times. The Hardins want to represent a class of Georgians who played the game from Georgia cell-phone numbers 'as well as those who played other games promoted on NBC. The Hardins allege that there are similar legal problems with games that have been televised as part of NBC's '1 vs. 100' game show, 'America's Got Talent,' and the Kentucky Derby and Preakness Stakes horse races.

Represented by the Columbus, GA, firms of Buchanan & Land and Daughtery, Crawford, Fuller & Brown, the Hardins are relying on OCGA Sec. 13-8-3. Along with voiding gambling contracts, the statute provides that '[m]oney paid or property delivered upon a gambling consideration may be recovered from the winner by the loser by institution of an action for the same within six months after the loss.' Later suits also can recover money but have to share the proceeds with county-education funds.

A lottery is considered gambling under Georgia law, say the plaintiffs in their filings, and only the state can operate one. The 'Lucky Case Game' is a lottery because people pay money ' the 99 cents text-message fee ' for a chance to win a bigger prize, they say. 'If NBC had not charged Georgians premium text-message charges to play,' explained one of the plaintiffs' lawyers, J. Clay Fuller, 'there would have been no lawsuit.'

A set of similar cases challenging the 'Lucky Case Game' and other NBC games is pending before a California federal judge. Most of the named plaintiffs in those cases also are Georgia residents, and Atlanta lawyers William A. Pannell and Kevin T. Moore are among the plaintiffs' counsel team that includes lawyers at Milberg Weiss' Los Angeles office.

NBC Universal, show-producer Endemol USA and game-administrator VeriSign moved in August to dismiss the suit pending before Judge O'Kelley in Georgia federal court. Represented by lawyers at King & Spalding in Atlanta and Arnold & Porter in Washington, D.C., NBC cited several problems with the plaintiffs' theory. In considering the motion, O'Kelley indicated he wasn't ready to buy the defendants' argument that the game was just an advertising promotion ' and therefore exempt from the state law's definition of a lottery. He noted that the games likely generate millions in revenue.

But the district judge punted a 'looming, unresolved question' to the state high court: whether the loser of an illegal lottery can sue to recover his losses. Two Georgia Court of Appeals decisions from the 1940s concluded that the statute under which the plaintiffs are suing didn't apply to lotteries, O'Kelley noted, but the statute since has been revised. He also asked the state supreme court to look at the question of whether the defendants can be considered 'winners' of the 'Lucky Case Game' under the civil recovery statute.

NBC says in its appellate brief that the changes to the civil recovery statute don't help the plaintiffs. Moreover, say the defendants, the game wasn't gambling because the defendants took no risk ' regardless of the outcome, they had to award the prize at a predetermined amount. They say they're not the 'winners,' either. 'In fact,' say the defendants in their brief, 'the true 'winners' of the Lucky Case Game received prizes every time that the promotion was aired.'

The plaintiffs say that NBC and the other defendants are the winners. 'Where Defendants constructed a game to make huge profits by retaining money paid to play,' says the plaintiffs' appellate brief, 'they have obtained, earned and won that money.'

Jerry A. Buchanan of Columbus, GA's Buchanan & Land argued for the plaintiffs' in a hearing held by the Georgia Supreme Court at Emory University School of Law. Fuller said his firm, Daughtery, Crawford, Fuller & Brown, is teaming up with Buchanan's firm. L. Joseph Loveland Jr. of the Atlanta office of King & Spalding, who argued the case for the defendants before the Georgia Supreme Court, declined to comment for this story.

Text messages, cell phones, TV game shows, Howie Mandel ' none of these could have been contemplated by Georgia's colonial lawmakers when they first passed a law allowing gamblers to recover their losses through lawsuits. The current version of the law, found at Georgia's Office of Contract and Grant Administration Sec.13-8-3, is at the center of a case against NBC Universal and the producer of Mandel's hit show, 'Deal or No Deal,' now being considered by the Georgia Supreme Court. Hardin v. NBC Universal, S08Q0323.

The justices have been asked to interpret Georgia law for a federal judge overseeing a case filed by a group of Columbus, GA, lawyers on behalf of a proposed class of people who participated in the 'Lucky Case Game,' an interactive feature of 'Deal or No Deal.' The plaintiffs lawyers say the game ' in which viewers, like the contestants on the show, try to pick a lucky suitcase ' ran afoul of Georgia law because participants were charged 99 cents to play through their cell phones.

NBC Universal and the other defendants say they are not obligated to return the 99-cent fees because viewers could play for free on the Internet. The defendants also argue that they weren't winners in a gambling contract. The winners, they say, were the participants who picked the right suitcase and were then chosen from a random drawing to get at least $10,000. (At press time, the 'Lucky Case Game,' according to NBC's Web site, was 'taking a short break.')

The federal judge overseeing the case, Senior Judge William C. O'Kelley, has suggested that 'probably' tens of millions of dollars are at stake in the case. It was brought in the U.S. District Court for the Northern District of Georgia by Forsyth County residents Michael and Michele Hardin, who say they're regular viewers of 'Deal or No Deal' and have played the 'Lucky Case Game' multiple times. The Hardins want to represent a class of Georgians who played the game from Georgia cell-phone numbers 'as well as those who played other games promoted on NBC. The Hardins allege that there are similar legal problems with games that have been televised as part of NBC's '1 vs. 100' game show, 'America's Got Talent,' and the Kentucky Derby and Preakness Stakes horse races.

Represented by the Columbus, GA, firms of Buchanan & Land and Daughtery, Crawford, Fuller & Brown, the Hardins are relying on OCGA Sec. 13-8-3. Along with voiding gambling contracts, the statute provides that '[m]oney paid or property delivered upon a gambling consideration may be recovered from the winner by the loser by institution of an action for the same within six months after the loss.' Later suits also can recover money but have to share the proceeds with county-education funds.

A lottery is considered gambling under Georgia law, say the plaintiffs in their filings, and only the state can operate one. The 'Lucky Case Game' is a lottery because people pay money ' the 99 cents text-message fee ' for a chance to win a bigger prize, they say. 'If NBC had not charged Georgians premium text-message charges to play,' explained one of the plaintiffs' lawyers, J. Clay Fuller, 'there would have been no lawsuit.'

A set of similar cases challenging the 'Lucky Case Game' and other NBC games is pending before a California federal judge. Most of the named plaintiffs in those cases also are Georgia residents, and Atlanta lawyers William A. Pannell and Kevin T. Moore are among the plaintiffs' counsel team that includes lawyers at Milberg Weiss' Los Angeles office.

NBC Universal, show-producer Endemol USA and game-administrator VeriSign moved in August to dismiss the suit pending before Judge O'Kelley in Georgia federal court. Represented by lawyers at King & Spalding in Atlanta and Arnold & Porter in Washington, D.C., NBC cited several problems with the plaintiffs' theory. In considering the motion, O'Kelley indicated he wasn't ready to buy the defendants' argument that the game was just an advertising promotion ' and therefore exempt from the state law's definition of a lottery. He noted that the games likely generate millions in revenue.

But the district judge punted a 'looming, unresolved question' to the state high court: whether the loser of an illegal lottery can sue to recover his losses. Two Georgia Court of Appeals decisions from the 1940s concluded that the statute under which the plaintiffs are suing didn't apply to lotteries, O'Kelley noted, but the statute since has been revised. He also asked the state supreme court to look at the question of whether the defendants can be considered 'winners' of the 'Lucky Case Game' under the civil recovery statute.

NBC says in its appellate brief that the changes to the civil recovery statute don't help the plaintiffs. Moreover, say the defendants, the game wasn't gambling because the defendants took no risk ' regardless of the outcome, they had to award the prize at a predetermined amount. They say they're not the 'winners,' either. 'In fact,' say the defendants in their brief, 'the true 'winners' of the Lucky Case Game received prizes every time that the promotion was aired.'

The plaintiffs say that NBC and the other defendants are the winners. 'Where Defendants constructed a game to make huge profits by retaining money paid to play,' says the plaintiffs' appellate brief, 'they have obtained, earned and won that money.'

Jerry A. Buchanan of Columbus, GA's Buchanan & Land argued for the plaintiffs' in a hearing held by the Georgia Supreme Court at Emory University School of Law. Fuller said his firm, Daughtery, Crawford, Fuller & Brown, is teaming up with Buchanan's firm. L. Joseph Loveland Jr. of the Atlanta office of King & Spalding, who argued the case for the defendants before the Georgia Supreme Court, declined to comment for this story.