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The cards came up lucky for dozens of casino owners Tuesday when the 9th U.S. Circuit Court of Appeals denied class status to video poker players who claimed their electronic cards were marked — by computer programmers. The court held that class status wasn’t possible because the nature of gambling made each claim of financial loss uniquely individual and, therefore, not based on any common misrepresentation by the casinos. “As the unique facts of this case demonstrate,” Judge M. Margaret McKeown wrote, “‘the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.’” Judges J. Clifford Wallace and Consuelo Callahan joined in the ruling. The decision was welcomed with relief in the gambling world because the proposed class would have encompassed nearly everyone who had played video poker or electronic slot machines at more than 60 casinos within the past 15 years. “We didn’t think the case should proceed as a class action when it was filed,” said Dennis Kennedy, a partner in Las Vegas’ Lionel, Sawyer & Collins who was co-lead counsel for the casinos. “It took a long time, unfortunately, to work its way through the system.” The proposed class representatives — William Poulos, Brenda McElmore and Larry Schreier — had sued both casinos and cruise ship operators, claiming that the odds of winning at video poker had been misrepresented. Unlike mechanical slot machines where winning is based on random chance, they argued, video poker and electronic slot machines can be computer programmed for a particular outcome. For that reason, they claimed, casino operators misrepresented the odds of winning. The 9th Circuit held that even if the allegations were taken as true, it doesn’t necessarily follow that the plaintiffs’ injuries are causally linked to the alleged misrepresentations. The individual plaintiff’s knowledge, motivations and expectations “bear heavily” on causation, the court said. “Gamblers do not share a common universe of knowledge and expectations,” McKeown wrote, with some playing to win money and others for “entertainment or a social activity.” “Indeed,” she held, “there may be no single, logical explanation for gambling — it may be an addiction, a form of escape, a casual endeavor, a hobby, a risk-taking money venture or scores of other things. “Consequently, we conclude that class-wide circumstantial evidence would not suffice to prove causation in this case.” The ruling was a big loss for a big name. David Boies — who took on Bill Gates and Microsoft on behalf of the U.S. Department of Justice, represented Napster in its Internet music fight, and litigated on behalf of Al Gore in the 2000 Florida election recount — was the lead plaintiffs lawyer. Boies, managing partner of Boies, Schiller & Flexner in Armonk, N.Y., couldn’t be reached for comment. The ruling in Poulos v. Caesars World Inc., 04 C.D.O.S. 7248, affirms a denial of class certification issued in 2002 by U.S. District Judge Roger Hunt of Las Vegas. An Associated Press report was used in preparing this story.

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