BetMGM Appeals Pre-Trial To Higher Court In Alleged Fraud, Breach Of Contract Case

In a New Jersey court case in which a BetMGM customer claims the company allowed a VIP to join a promotional contest late and without alerting other participants, BetMGM has essentially jumped the line by filing a brief with a higher court before a jury trial takes place.

Arguing that a decision by a superior court judge is so out of the norm that it “calls into question how a casino and almost every other New Jersey business with an internet presence interacts with consumers,” BetMGM filed “Motion to Leave to File Interlocutory Appeal,” which is, in essence, a brief that asks for the right to appeal.

The case, Murk vs. BetMGM et al, is set for trial in New Jersey’s Superior Court, Atlantic County, on Jan. 26.

Larry Murk filed his lawsuit in 2022. BetMGM claims Murk signed the contest’s terms and conditions, which include a section reading that it can “suspend, modify, remove, or add any Gaming Service” to any promotion for any reason at any time. BetMGM argues that Murk signed off on these terms and conditions before joining the competition. But Murk says he never signed the contest terms and conditions, as they were not available.

In October, New Jersey Superior Court Judge Danielle Walcoff declined to dismiss the case. BetMGM’s lawyers in late November filed their brief with the appellate court, calling into question two parts of Walcoff’s decision. They wrote that she “manufactured a disputed fact as to whether Plaintiff accepted the NJ Party Casino [a BetMGM product] terms and conditions,” and questioned her interpretation of “ascertainable loss.”

Murk’s lawyer, John Donnelly of Donnelly Law LLC, responded by writing that BetMGM did not present in the brief “the possibility of some grave damage or injustice” and further did not “meet any of the standards governing their request for extraordinary relief.”

Winner would have been who bet most

At issue is a promotion Murk entered in 2021 in which casino bonus dollars and spins would be awarded to the player who bet the most on a specific digital slot game each week in May 2021. The winner of the contest was to be determined by how much was bet over the length of the contest, not how a player fared during it.

Per court records, the prize was “$500,000 worth of ‘Casino Bonus’” and 100 free spins per day for one month. Murk determined how much he would need to bet to win. In the first 10 days of the contest, Murk was at or near the top of the leaderboard. On the 11th day, he discovered that not only was he not the leader, but that a new player, whose name hadn’t been on the leaderboard prior, was listed on top.

“MJBroker11969,” referred to in court documents as “Broker,” showed up in first place, having bet $800,000 to that point versus Murk’s $350,000.

Murk and his lawyer contend that BetMGM changed the rules of the promotion and did not inform participants. They also say that Murk did not sign the terms and conditions of the contest, but he did sign the terms and conditions to play on the BetMGM’s Party Casino.

Murk is seeking $2.5 million in damages under New Jersey’s Consumer Fraud Act. Walcoff will not preside over the trial. At the last hearing, she indicated that due to docket loads, the case is being shifted to Judge Benjamin Podolnick.

Contest T&C in question

While BetMGM’s lawyers press forward ahead of a jury trial, the question of whether or not Murk did sign the contest terms and conditions remains at issue. All players using the platform are required to sign the general terms and conditions or they cannot use the platform. Per a deposition, a BetMGM employee said that the general terms and conditions are also the terms and conditions for the promotion, but that specific contest terms and conditions should have been hyperlinked. It’s not clear if they were.

Donnelly argued in his response to the appellate court that BetMGM “did not provide the court with an exhibit or image” of the pop-up or hyperlinked terms and conditions.

BetMGM’s lawyers argue in the appellate brief that projected “ascertainable losses” are not “recoverable” under the state’s Consumer Fraud Act, and that removing the Consumer Fraud Act from the complaint would “streamline” the case.

The lawyers maintained that Walcoff’s belief that Murk’s “expectation of winning the Top Prizes represented ‘a quantifiable and measurable loss that is not hypothetical, it’s not illusory.’ (Da. 14.),” and called that interpretation “incorrect. Plaintiff’s subjective disappointment cannot be objectively verified and thus cannot constitute an ascertainable loss under the CFA as a diminution in value or benefit of the bargain.”

The contest prize involved only free play and spins, not cash.

Donnelly wrote in his response that BetMGM’s argument that “free slot play can never have legally recognizable value” would mean that a casino could “do or say anything it chooses with impunity — even engage in the most outrageous false promises, contract breaches, and fraudulent behavior — and avoid any liability if the promised prize is free slot play.”

As of Tuesday, the appellate court had not issued a ruling.