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Hardin, et al. v. NBC Universal Inc., et al.

Plaintiffs filed a class action lawsuit in federal district court in Georgia against NBC Universal and the organizers of the Lucky Case sweepstakes that is tied to the television show Deal or No Deal. The plaintiffs alleged that the sweepstakes is an illegal lottery because viewers who enter by sending a text message are charged a text messaging fee of 99 cents. Plaintiffs filed suit under a Georgia anti-gambling statute (Ga. Code Ann. 13-8-3(b)) that allows the loser of a gambling contract to collect his or her losses from the winner. The plaintiffs were seeking restitution of the text messaging fees they and all other Georgia residents paid to enter the sweepstakes.

The defendants filed a motion to dismiss for failure to state a claim. Before ruling on the motion, the federal district court certified two questions to the Georgia Supreme Court: whether §13-8-3(b) authorizes a suit to recover money paid out or lost an account of participation in an illegal lottery, and whether plaintiffs could recover money paid out or lost from the lottery’s organizer or promoter.

Without saying whether or not the Lucky Case game is an illegal lottery, the Georgia Supreme Court held that the game does not violate §13-8-3(b) because there is no gambling contract between the plaintiffs and those offering the chance to win the game. Prior case law in Georgia has held that no gambling contract exists unless the parties contracted to gamble against each other and one party lost. The court, quoting the district court, determined that this case “does not involve a bet or wager, neither defendants nor any participant is certain to lose, and the contract’s consideration [the 99 cent text messaging entry fee] never hangs in the balance.” Because the statute does not authorize a civil suit against the promoters and organizers of an illegal lottery, the court did not answer the second question of whether the plaintiffs could recover money from the lottery’s organizer and promoter.