MICHAEL BANDLER VS. LANDRY'S INC., GOLDEN NUGGET ATLANTIC CITY (L-0026-16, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5064-17T3
MICHAEL BANDLER,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, July 22, 2020
v. APPELLATE DIVISION
LANDRY'S INC., GOLDEN
NUGGET ATLANTIC CITY,
LLC, TILLMAN FERTITTA,
and TOM POHLMAN,
Defendants-Respondents.
_____________________________
Argued February 24, 2020 – Decided July 22, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-0026-
16.
Michael Bandler, appellant pro se.
Louis Michael Barbone argued the cause for
respondents (Jacobs & Barbone, PA, attorneys; Louis
Michael Barbone, on the brief).
Chanel J. Van Dyke, Deputy Attorney General, argued
the cause for amicus curiae Office of the Attorney
General (Gurbir S. Grewal, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Chanel J. Van Dyke, on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
The sole issue presented in this appeal is whether the Casino Control Act
(CCA), N.J.S.A. 5:12-1 to -233, which grants the Division of Gaming
Enforcement (Division) authority to regulate gaming-related advertising,
N.J.S.A. 5:12-70(a)(16), preempts plaintiff's consumer fraud and common law
action alleging a casino hotel falsely advertised a poker tournament. We
conclude the action is not preempted. We therefore reverse the summary
judgment dismissal of plaintiff's complaint on that ground, and remand for
further proceedings.
I.
We discern the following facts from the record, viewed in a light most
favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995). Defendant Golden Nugget Atlantic City,
LLC (GNAC) operates the Golden Nugget casino and hotel in Atlantic City.
GNAC advertised a "Grand Poker Series" tournament to be held at its casino in
January 2015.
Plaintiff, an experienced competitive poker player, saw one of the
advertisements. Although he did not retain a copy of the advertisement he
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viewed, he alleged it announced "$150,000 IN PRIZE MONEY." It listed
twelve "one day tournaments" to be held over ten days. The advertisement
posted various admission fees for each event.
The advertisement did not expressly state whether the prize money was
guaranteed or not guaranteed. An exemplar that GNAC produced in discovery
also stated in small print at the bottom, "Management reserves all rights to
change or cancel at any time." It also stated that the official rules were
available in "The Poker Room." However, plaintiff did not recall seeing that
disclaimer.
In response to the advertisement, plaintiff traveled from his Vermont
home to New Jersey to enter the tournament. He competed successfully in one
event. Then, GNAC cancelled the tournament due to the low number of
registered players. GNAC stated that, pursuant to the tournament rules, it paid
plaintiff a portion of the limited prize money generated by the entry fees that
the casino collected.
Plaintiff thereafter filed his complaint alleging a violation of the
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -224, as well as fraud,
misrepresentation, and civil conspiracy. He alleged the advertisement was
deceptive, and falsely induced him to attend the tournament based on the
promise that GNAC would pay out $150,000 in prize money. He alleged he
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incurred expenses for travel, lodging, and meals to attend the event and
suffered consequential damages.
In their answer, defendants denied that the advertisement was deceptive,
noting that it disclosed the tournament could be cancelled at any time. Among
other affirmative defenses, defendants alleged the court lacked jurisdiction to
hear the suit and the complaint was frivolous. Defendants purported to reserve
the right to seek fees under the N.J.S.A. 2A:15-59.1.
After a period of discovery, plaintiff moved for partial summary
judgment on the CFA claim, asserting the undisputed material facts
demonstrated the advertisement misled him to believe $150,000 in prizes
would be paid. Defendants cross-moved, arguing that absent an explicit
statement that prize money was guaranteed, the advertisement did not mislead
plaintiff to believe that it was, particularly since the disclaimer stated the
tournament could be changed or cancelled at any time.
The trial court framed the issue as whether the Division had exclusive
jurisdiction over plaintiff's claims. After soliciting additional briefs on the
issue, the court found it lacked jurisdiction. The court found that the CCA
expressly granted the Division exclusive jurisdiction over all gaming -related
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advertising.1 The court distinguished between non-gaming-related advertising,
like that focused on enticing people to visit casinos, and advertising that
related to the games themselves. The court concluded that the Division
exercised exclusive jurisdiction over the latter category, which the court found
included the advertisement about which plaintiff complained. Adhering to that
reasoning, the court denied plaintiff's motion for reconsideration.
Plaintiff appeals from the summary judgment dismissal of his complaint
on jurisdictional grounds. As the case involves the interplay of two statutes
implemented within the Department of Law and Public Safety, we invited the
Attorney General to seek participation as amicus curiae. The Attorney General
urges us to reverse the trial court's order. 2
1
The CCA was amended in 2011 to modify the responsibilities of the
Division and the Casino Control Commission (Commission). L. 2011, c. 19.
The Division acquired responsibility for overseeing casinos' daily operations,
including reviewing gaming-related advertising – a power previously vested in
the Commission. Id. at § 26. Many of the cases dealing with the CCA were
decided before the amendment and refer to the Commission's jurisdiction, as
opposed to the Division's. Also, the parties and the judge sometimes referred
to the Division and Commission interchangeably. For consistency and clarity,
we refer throughout to the Division as the entity with jurisdiction over gaming -
related advertising.
2
In November 2019, plaintiff informed us that he filed a bankruptcy petition
and questioned whether the pending appeal was stayed under 11 U.S.C. 362.
In a sua sponte order, we exercised our concurrent authority to determine the
applicability of the automatic stay, see In re Bona, 124 B.R. 11, 15 (S.D.N.Y.
1991), and analyzed the parties' respective claims and defenses, see Maritime
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II.
We review a summary judgment order de novo, applying the same
standard as the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405 (2014). Summary judgment shall be entered if the motion record
shows "there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c); Brill, 142 N.J. at 540. In this appeal, the issue is a purely legal one,
pertaining to the court's subject matter jurisdiction. Santiago v. N.Y. & N.J.
Port Auth., 429 N.J. Super. 150, 156 (App. Div. 2012). We review that issue
de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
Both the CFA and CCA bar false, misleading, and deceptive advertising,
including advertising that is misleading by omission. The CFA declares
unlawful "any unconscionable commercial practice, deception, fraud, false
Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir. 1991) (stating
that "[a]ll proceedings in a single case are not lumped together for purposes of
automatic stay analysis"). Noting that section 362(a) forbids continuation of
an "action or proceeding against the debtor," 11 U.S.C. 362(a)(1) (emphasis
added), we determined that plaintiff's affirmative claims were not stayed,
because they were asserted by the debtor. But, defendants' potential frivolous
litigation claim was stayed because it would be against the debtor. See Action
Drug Co. v. Overnite Transp. Co., 724 F. Supp. 269, 278 (D. Del. 1989)
(where a plaintiff-debtor enters a bankruptcy, defendant may not assert a
counterclaim against the plaintiff), aff’d, 902 F.2d 1558 (3d Cir. 1990).
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pretense, false promise, misrepresentation, or the knowing, concealment,
suppression, or omission of any material fact with intent others rely upon such
concealment, suppression or omission, in the connection with the sale or
advertisement of any merchandise." N.J.S.A. 56:8-2 (emphasis added).3 The
CFA authorizes the Attorney General to promulgate regulations to enforce this
provision, N.J.S.A. 56:8-4, and authorizes private enforcement actions in
court, and recovery of treble damages and attorneys' fees, N.J.S.A. 56:8-19.
The CCA directs the Division to promulgate regulations "[g]overning the
gaming-related advertising of casino licensees, their employees and agents,
with the view toward assuring that such advertisements are in no way
deceptive[.]" N.J.S.A. 5:12-70(a)(16).4 The regulations require that
"[a]dvertising shall be based upon fact, and shall not be false, deceptive or
misleading" and "no advertising shall . . . [u]se any type, size, location,
lighting, illustration, graphic depiction or color resulting in the obscuring of
any material fact; or . . . [f]ail to specifically designate any material conditions
or limiting factors." N.J.A.C. 13:69C-14.2(d). The CCA does not expressly
authorize a general private right of action to enforce its provisions and
3
"Merchandise" is broadly defined to include services, N.J.S.A. 56:8-1(c),
and no doubt covers gaming entertainment.
4
The statute also provides that such regulations prescribe messages to combat
compulsive gambling. Ibid.
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regulations, Miller v. Zoby, 250 N.J. Super. 568, 573 (App. Div. 1991), and
our Court has declined to infer one, Campione v. Adamar of N.J., Inc., 155
N.J. 245, 266 (1998) (declining, in light of the "elaborate regulatory scheme,"
"to imply a cause of action when no such cause of action exists at common
law").
As the Supreme Court noted in Lemelledo v. Beneficial Management
Corp., 150 N.J. 255, 271 (1997), "regulation is frequently complementary,
overlapping, and comprehensive." To preserve the goals of overlapping
statutes, the Court set a high bar for preemption. "Absent a nearly
irreconcilable conflict, to allow one remedial statute to preempt another or to
co-opt a broad field of regulatory concern, simply because the two statutes
regulate the same activity, would defeat the purposes giving rise to the need
for regulation." Ibid.
To determine if there is such a conflict, we look first to the express
language of the statutes. Both the CFA and CCA address their intersection
with other statutes. "The 'rights, remedies and prohibitions' created by the
CFA are cumulative to any other rights, remedies, and prohibitions created by
the common law or other statutes." Id. at 264 (quoting N.J.S.A. 56:8-2.13).
On the other hand, the CCA provides that if any provision "is inconsistent
with, in conflict with, or contrary to any provision of law, such provision of
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[the CCA] shall prevail . . . ." N.J.S.A. 5:12-133(b). Furthermore, the
Division "shall have exclusive jurisdiction over all matters delegated to it or
within the scope of its powers under the provisions of [the CCA]." Ibid.
We are satisfied that N.J.S.A. 5:12-133(b) does not resolve the issue
before us. We construe this section of the CCA narrowly to avoid casting
aside other remedial legislation. See State v. Resorts Int'l Hotel, Inc., 173 N.J.
Super. 290, 296-97 (App. Div. 1980). With that principle in mind, we discern
no inconsistency or conflict between the CFA's and CCA's prohibition of false,
deceptive or misleading advertising, based on the provisions we have quoted
above. Second, the "exclusive jurisdiction" that is granted to the Division
pertains only to "matters delegated to it or within the scope of its powers."
The CCA delegates to the Division the authority to issue and enforce
regulations governing "gaming-related advertising," but it does not delegate to
it the power to adjudicate common law or non-CCA statutory claims, or to
award damages. Campione, 155 N.J. at 262. Acknowledging the Division's
authority "to establish the rules of licensed games" and "to investigate,
adjudicate, and punish regulatory violations," the Court in Campione noted
that "[n]owhere . . . does the [CCA] delegate to the [Division] the adjudication
of a patron's common-law [discrimination] claims," and concluded that
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Legislature had not granted exclusive jurisdiction over those claims or the
plaintiff's contract claims. Id. at 260-61.
Absent an explicit grant of exclusive jurisdiction to the Division over
plaintiff's claims, we must look to the general statutory scheme to determine
whether the Legislature intended to grant exclusive jurisdiction. See e.g., N.J.
Div., Horsemen's Benevolent Protective Ass'n v. N.J. Racing Comm., 251 N.J.
Super. 589, 601 (App. Div. 1991) (analyzing "whether anything in the
statutory scheme . . . evinces a legislative intent to confer upon the Racing
Commission exclusive jurisdiction to adjudicate all legal and factual disputes
involving control and disposition of the Fund).
"The language of the CFA evinces a clear legislative intent that its
provisions be applied broadly in order to accomplish its remedial purpose,
namely, to root out consumer fraud." Lemelledo, 150 N.J. at 264. In
Lemelledo, our Supreme Court rejected a lender's argument that a CFA claim
over "loan packing practices" was preempted by other statutes governing
lending activities. Id. at 266. The Court applied a "presumption that the CFA
applies to covered practices, even in the face of other existing sources of
regulation, [which] preserves the Legislature's determination to effect a broad
delegation of enforcement authority to combat consumer fraud. Id. at 270.
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The Court established a rigorous test for determining whether another
statute preempted the CFA:
In order to overcome the presumption that the CFA
applies to a covered activity, a court must be satisfied
. . . that a direct and unavoidable conflict exists
between application of the CFA and application of the
other regulatory scheme or schemes. It must be
convinced that the other source or sources of
regulation deal specifically, concretely, and
pervasively with the particular activity, implying a
legislative intent not to subject parties to multiple
regulations that, as applied, will work at cross-
purposes. We stress that the conflict must be patent
and sharp, and must not simply constitute a mere
possibility of incompatibility.
[Ibid. (emphasis added).]
See also Shaw v. Shand, 460 N.J. Super. 592, 610-11 (App. Div. 2019)
(applying the Lemelledo test). That test governs our analysis here.
We previously addressed the alleged conflict between the CFA and the
CCA regarding deceptive advertising in Smerling v. Harrah's Entertainment,
Inc., 389 N.J. Super. 181, 184-85 (App. Div. 2006). Invoking both the CFA
and CCA, the plaintiffs alleged that promotional advertisements that falsely
promised cash incentives induced them to visit a casino hotel. Id. at 184. The
trial court held that the Division had exclusive jurisdiction over the plaintiffs'
claims and dismissed the CFA claims under Rule 4:6-2(e). Id. at 185-86. We
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reversed, concluding the CCA did not preempt plaintiffs' CFA claims from
proceeding. Id. at 193.5
Referring to Campione, we noted that "[e]ven in the context of New
Jersey's highly regulated casino industry, the Court has held that the
Legislature 'did not intend to prevent patrons from seeking vindication of
common-law claims in the courts.'" Id. at 189 (quoting Campione, 155 N.J. at
260). Applying the Lemelledo test, we found the Legislature intended to grant
the Division "exclusive control of the regulation of the rules of casino games
and of the content of gaming-related advertising." Id. at 190 (emphasis in
original). By "gaming-related advertising," we understand the court to have
5
We noted that the trial court also erred in using the terms "exclusive
jurisdiction" and "primary jurisdiction" interchangeably. Id. at 187. We
explained that an agency may have "primary jurisdiction" without depriving
the court of jurisdiction to decide a matter; on the other hand, when an agency
has "exclusive jurisdiction," the court is deprived of decision-making
authority. Id. at 187. That is because exclusive jurisdiction is created when
"the Legislature has vested exclusive jurisdiction with an agency, which
preempts a court's original jurisdiction over the subject matter." Ibid. "Under
the doctrine of primary jurisdiction, on the other hand, 'the case is properly
before the court, but agency expertise is required to resolve the questions
presented.'" Ibid. (quoting Muise v. GPU, Inc., 332 N.J. Super. 140, 159 (App.
Div. 2000)). The primary jurisdiction doctrine is designed to utilize the
agency's expertise and to promote uniform interpretation of an agency's
regulations. Id. at 188. In this case, as the court did not address whether the
Division has primary jurisdiction, we limit ourselves to the issue of exclusive
jurisdiction.
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referred to advertising related to the technical aspects of gaming in which the
Division's expertise was essential, and uniformity was intended.
Smerling noted two cases holding the Division had exclusive jurisdiction
over a claim regarding signage placed directly on a slot machine. Id. at 190-91
(citing Marcangelo v. Boardwalk Regency Corp., 847 F. Supp. 1222, 1224-25
(D.N.J. 1994), aff'd on other grounds, 47 F.3d 88 (3d Cir. 1995), and Decker v.
Bally's Grand Hotel Casino, 280 N.J. Super. 217, 222 (App. Div. 1994)). We
observed that the federal court relied in part on the CCA's grant of exclusive
authority to the Division "to pre-approve all aspects of a slot machine,
including program, odds and signage, even before the slot machine is installed
on the casino floor . . . ." Smerling, 389 N.J. Super. at 190.
"Preemptive intent" was also found in Doug Grant, Inc. v. Greate Bay
Casino Corp., 3 F. Supp. 2d 518, 536-37 (D.N.J. 1998), in which the plaintiff
complained about blackjack rules and related advertising to combat card-
counting. Smerling, 389 N.J. Super. at 191. We noted the federal court relied
on the Division's extensive regulation of the blackjack game in holding that
allowing a CFA claim to proceed would disrupt the CCA's regulatory scheme.
Ibid.
We observed that those cases "dealt with highly technical areas of the
rules of either casino games, casino gaming equipment, or gaming-related
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advertising, which are the subject of comprehensive regulation by the
[Division] . . . and consequently fall within the special expertise of the
agency." Id. at 192. The cases did not support preempting the court from
addressing the kind of advertising that Smerling and her co-plaintiffs targeted
in their complaint. Ibid. We add another ground for distinguishing both
Marcangelo and Decker: those cases pre-dated Lemelledo, and did not apply
the Court's rigorous test for preemption.
We held in Smerling there was no inevitable or direct and unavoidable
conflict between the CFA and CCA regarding the advertising involved. Id. at
192-93. Nor would "judicial construction . . . affect the uniformity of the
interpretation or application of the [CCA]'s statutory or regulatory
requirements." Id. at 193.
We noted that "[t]here is nothing highly sophisticated or technical about
[the] defendants' two promotional schemes." Id. at 192. There was "no
reference in either advertisement to the heavily regulated rules of the game or
gaming equipment." Ibid. Rather, "the challenged advertising simply involves
vouchers that resemble coupons used to promote casino visitation and
patronage, similar in type to those ads used to entice patronage of any other
business." Ibid. Therefore, the advertisements lacked content that "calls upon
agency expertise or prerogative to which a court need defer." Ibid. Rather,
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assessment of the advertisements fell well within the court's experience and
expertise. Id. at 193.
We concluded that the CFA and the CCA concurrently regulated the
advertisements in Smerling. Ibid. "[B]oth the consumer fraud and casino
control schemes regulate with a mutual view toward 'assuring that such
advertisements are in no way deceptive.'" Ibid.
We reach the same conclusion here. Like the advertisement in Smerling,
the advertisement involved here invited the public to visit a casino by offering
a prize or reward that plaintiff contends was falsely promised. The issue is
whether the statement "$150,000 IN PRIZE MONEY" was deceptive, where
the casino omitted stating it intended to pay $150,000 only so long as enough
people signed up, and the only indirect reference to that intent was the
disputed disclaimer in small print about official rules and the right to change
or cancel the event.
The advertisement itself does not pertain to arcane or technical rules of
the game. No special expertise vested in the Division is required to resolve the
question. There is no "direct and unavoidable conflict" between the CFA and
CCA provisions, let alone a "patent and sharp" conflict, as Lemelledo requires.
150 N.J. at 270. There is no significant risk that the CFA and CCA "as
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applied, will work at cross-purposes." Ibid. We discern no legislative intent
to preempt plaintiff's CFA or common law claims in Superior Court.
Our conclusion is supported by the Attorney General, who, through the
Division of Consumer Affairs and the Division of Gaming Enforcement,
implements both the CFA and CCA. We attach great weight to an agency's
interpretation of a statute it is charged with implementing, particularly those
that require technical expertise. N.J. Guild of Hearing Aid Dispensers v.
Long, 75 N.J. 544, 575 (1978) (stating "the opinion as to the construction of a
regulatory statute of the expert administrative agency charged with the
enforcement of that statute is entitled to great weight"); see also Waksal v.
Dir., Div. of Taxation, 215 N.J. 224, 231 (2013). That interpretation may
come to us in the form of an amicus brief. U.S. Bank, N.A. v. Hough, 210 N.J.
187, 200 (2012) (considering agency interpretation of statute in invited
appellate amicus brief, where agency was not a party to the trial court action).
The Attorney General contends that Lemelledo provides the guiding
principle for resolution of this case. He argues that absent a direct and
unavoidable conflict between the CFA and CCA, preemption is unwarranted;
and, as it pertains to the advertising involved in plaintiff's action, there is n o
such conflict. We agree.
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Reversed and remanded. We do not retain jurisdiction.
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