No Class-Action For Canadian Self-Excluders II

In Ontario, the Court of Appeal has affirmed earlier rulings that gamblers who self-excluded, but who were not effectively kept away from continued casino gambling, can not pursue a class action lawsuit against the casino operators, the Ontario Lottery and Gaming Corporation. The court upheld the trial judge's reasoning that potential liability was dependent on personal circumstances, so that the members of the would-be class were not sufficiently similarly situated to justify class certification. Individual lawsuits can still proceed, of course, and many in the past have led to substantial settlements.

Self-Exclusion noted the trial court ruling back in 2010, followed last year by the Court of Appeal's announcement of its willingness to hear the appeal. Here's a short video (with links to two more videos) on self-exclusion provided by the Ontario Lottery and Gaming Corporation.

The Ineffectively Excluded Win the Right to Sue as a Class

Back in August, 2012, Self-Exclusion noted that the Ontario (Canada) Supreme Court was willing to hear an appeal from self-excluded gamblers as to whether they could proceed with a class-action suit. The class would consist of gamblers who placed themselves on the excluded list, but who subsequently broke their exclusion order by returning to a casino to gamble.
 
But Ontario is not the only province in Canada that is facing this issue. The British Columbia Supreme Court now has spoken on a similar case, ruling that the gamblers may indeed proceed with their class-action suit. In this instance, however, the class is not simply those who continued to gamble after self-excluding. Rather, the class is a subset of those stealthy gamblers who at some point were not allowed to collect a jackpot that they had won, once it was learned they were on the excluded list.

One of the complicating factors in this case is that originally, the forfeiture of winnings was not an element of the self-exclusion system in British Columbia. This feature was added on April 1, 2009, as a method of increasing the deterrence of gambling for those on the excluded list. The named plaintiffs in the current case self-excluded before jackpot denial was an element of the exclusion plan, but won their jackpots after the implementation of the scheme. (Though they won a few (denied) jackpots, in overall terms, both of the gamblers lost quite a bit of money gambling while excluded.)

The court decision re-iterates that the British Columbia exclusion system was constantly being tested by excluded gamblers. (Self-Exclusion noted this issue some years ago.) One of the plaintiffs was caught attempting to gamble in breach of his order some 15 times. Here is the section of the Court opinion entitled "Enforcement of the VSE Program":

[39]         As of October 2011, there were approximately 6,300 persons enrolled in the VSE program.

[40]         Until mid-June 2009, BCLC’s primary means of enforcing the VSE Program was to rely on the ability of security staff at gaming facilities to recognize VSE Program participants by sight.

[41]         In June 2009, BCLC started using license plate recognition to identify VSE Program participants. Since its introduction, this technology has led to almost 4,000 entry denials or removals of VSE Program participants.

[42]         From 2007 until October 2011, VSE Program participants were denied entry or removed from gaming facilities on more than 36,750 occasions.

[43]         Between April 1, 2009, and June 3, 2010, Jackpot Prizes were withheld from 105 VSE Program participants on 113 different occasions.

[44]         Between June 4, 2010, and July 4, 2012, a total of 187 Jackpot Prizes were withheld from VSE Program participants.

Incidentally, the jackpots that are withheld from excluded gamblers are not kept by the casino; rather, they are donated to a third party.

Note that the recent court decision remains a far cry from requiring that the old jackpots be given to excluded gamblers; it only allows them to form a class to try their luck in court. They still must show that the British Columbia Lottery Corporation breached a contract with the excluded gamblers, or behaved in an unconscionable fashion.

Class Action Back in Play for Ontario's Self-Excluders

A couple years ago Self-Exclusion noted that a Canadian court had refused to certify Ontario's self-excluded casino gamblers as a class for the purpose of a suit against the Ontario Lottery and Gaming Corporation (OLGC). The claim is that the OLGC neglected a duty of care to prevent the self-excluded from violating their order by returning to casinos and gambling. (The significant revenue emanating from self-excluded gamblers who continue to gamble certainly could be a spur to mixed motives on the part of casinos or taxation authorities.) The court ruled that individual lawsuits could go forward (and some have been successful, in terms of monetary settlements), but that the circumstances of the self-excluded gamblers were sufficiently diverse that class status was inappropriate. That decision from two years ago was upheld once on appeal -- but now Ontario's highest court has agreed to hear an appeal of the earlier rulings.

In 2011, Ontario rolled out facial recognition systems to help enforce self-exclusion bans.

The responsible gaming section of the OLGC website offers links to some valuable videos discussing self-exclusion, as well as videos aimed at combating common gambling fallacies.

Hey, I Am Not That Self-Exclusion Guy...

...I am a different self-exclusion guy. Recently, a man from Delaware wanted to remove himself from Atlantic City's gambling self-exclusion list, in part because he found that the privately-owned AC casinos also barred him from their establishments in other locales. There was a fair amount of media (and Vice Squad?) coverage of his case, which he lost, but the excluded gambler was identified only by his initials. It turns out that initials are not like fingerprints, one unique set per person. (Maybe fingerprints are not like fingerprints, either.) A man in Florida has same the initials as the fellow excluded from Atlantic City casinos -- and the Floridian is none too pleased about the publicity surrounding the case. Seems that people keep suspecting that he (the Florida man) is the current litigant -- though he is not. Those folks might be confused because, in addition to the eerie initial coincidence, the Florida man is a known gambler and a former self-excluder, having signed up for a one-year ban in 2003. How to end the confusion? The Florida man wants the court to release the full name of the litigant. But full names are not unique, either....

I like to think of myself as the Self-Exclusion Guy.

Sorry for disappearing under the blogoscope. My temporary relocation has made it hard to participate in Web 2.0.

Self-Exclusion is For Keeps in New Jersey

Vice Squad is a longtime fan of self-exclusion programs, those voluntary lists gamblers can join to be barred from entering casinos or collecting significant winnings if they do happen to sneak by. [Self-exclusion could profitably be employed for many vices, even the currently-illegal ones, I maintain.] Nevertheless, there are many ways in which existing self-exclusion programs can be improved, and lots of tricky issues concerning the details of their operation. Two issues concern the length of time over which an exclusion operates, and how to ensure that people do not self-exclude in a moment of intemperance. Both of these issues were under review in a recent New Jersey court case, in which a man was hoping to remove himself from Atlantic City's self-exclusion list. He signed up for a lifetime ban -- New Jersey also allows gamblers to choose one year or five year bans -- which he claims he joined impulsively. The erstwhile gambler was particularly distressed to learn (once he self-excluded) that those corporate Atlantic City casinos would not just exclude him from their Atlantic City locations, but from their casinos worldwide. This is a common practice. The court refused to remove him from the ban, which I think is probably the right decision.

Nevertheless, there are two obvious reforms that can help. First, people considering joining a self-exclusion list should be warned that their action might spillover to other jurisdictions. Second, long-term bans should themselves require a waiting period. A person who approaches a casino about self-exclusion should receive an immediate short-term exclusion, but for a lengthy term, he or she should have to take further action at a later date. (See the Blaszczynski, Ladouceur, and Nower suggestion noted here.) This action probably should be arranged to take place at a non-gambling locale, to reduce temptation.

Private Response to Problem Gambling

Many states in recent years have set up self-exclusion lists
for gamblers. People who sign onto the list are then barred
from casinos in the state. The idea is to help bolster the self-
control of problem gamblers.

The world's largest casino company, Park Place casinos,
intends to go one (or two) better. They will maintain a similar
list that folks who are concerned about their gambling problem
can join. One additional feature, however, is that Park Place
itself is also willing to take the initiative, and to bar people
whom it identifies as having a gaming problem. (Usually these
people are known by casinos as "our best customers".) The
second feature of the Park Place initiative is that to back up
their policy, people who are on the list will forfeit any jackpots
that they win -- i.e. they will be barred from winning any
substantial amounts, even if they manage to slip into the
casino. Sounds like a particularly effective way to take the
lure out of gambling.

It will be interesting to see the lawsuit that will arise when
the first person is involuntarily banned, and the one that will
follow the first denial of payment of a jackpot. Last month,
Overlawyered reported on a lawsuit filed by those who felt
that Detroit-area casinos were not enforcing strictly enough
the exclusion list that the plaintiffs had voluntarily joined --
the gamblers could have been jailed for up to a year for
going to a casino after they had joined the list!