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Plaintiffs in Fun 5’s Lawsuit File Their Brief on the Merits

Plaintiffs in the Fun 5’s lawsuit in Texas filed their Respondents’ Brief on the Merits  today.  In their 61 page brief, attorneys for the Plaintiffs argue that GTECH (now known as IGT) is not entitled to derivative sovereign immunity.  GTECH claims it was just following orders when it printed scratch-off lottery tickets with instructions that falsely represented to players that they would win five times the Prize in the Prize Box if their ticket revealed a Money Bag symbol.

In their brief, Plaintiffs point out that GTECH was hired by the Texas Lottery Commission (TLC) because GTECH was supposed to be the expert at scratch-off games.  GTECH had already run the Fun 5’s game in four other jurisdictions.  Although the TLC did request a change in the computer parameters for the game, GTECH conducted a review of the changed parameters and considered whether changes needed to be made to the language in the instructions.  GTECH’s employees who conducted that review made the independent decision to continue to use misleading language that GTECH later printed on the tickets.

GTECH has a deadline of March 6, 2019, to file a Reply Brief after which the Texas Supreme Court will take one of the following actions:

  • The Court may deny GTECH’s Petition for Review.  If that happens, the case will be remanded for trial to the state district court in Austin; or,
  • The Court may grant GTECH’s Petition for Review.  If that happens, the Court will do one of two things:
    1. The Court may issue an opinion without hearing oral argument.  This would be called a per curiam opinion; or,
    2. If the Court believes that oral argument will help it decide the case, it will send a notice to the parties setting a date and time for hearing oral argument. After the argument, the Court will prepare a written opinion explaining the Court’s final decision, including its reasons. On average, an opinion in a case is handed down by the Court about one year after oral argument.


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