The first expert, Ronald Butters, Ph.D., was previously identified by the Plaintiffs months ago. Dr. Butters is former chair of both the Linguistics Program and the Department of English at Duke University. A summary of Dr. Butters’ expected testimony was provided as follows:
“2) Dr. Ronald Butters will draw upon his knowledge of linguistics and the teaching of composition with particular reference to the recognition and avoidance of ambiguity in written documents to testify regarding the conclusions made by an ordinary reasonable speaker of contemporary American English when examining the language of Game 5 of the Fun 5’s scratch-off ticket.
3) The general substance of Dr. Butters’ opinions are as follows:
a. Ordinary reasonable speakers of contemporary American English would conclude from examining GAME 5 of the Texas Lottery Commission (TLC)’s 2014 “Fun 5’s” scratch-to-play game card that the purchasers had won a prize that the undisclosed parameters of the game may not have been designed to award. If a game player scratches off the box labeled “5X BOX” and finds a Money Bag “ ” symbol and then scratches off the “PRIZE” box, this will cause the game player to understand that he or she has won a prize that is five times the amount exposed by scratching off the “PRIZE” box. The relevant language of the GAME 5 card is the independent sentence, “Reveal a Money Bag ‘ ’ symbol in the 5X BOX, win 5 times that PRIZE.” b. It is my understanding that the parameters of the game were designed to award players who revealed a Money Bag ‘ ’ symbol 5 times the amount in the “PRIZE” box only if they had won the first (tic-tac-toe) stage of the game by scratching off, from among the nine star-symbol boxes, “three ‘5’ symbols in any one row, column or diagonal.” However, the fact that the instructions are framed as two separate sentences indicates to readers that the two parts of the game are independent; that is, the player has two chances to win. Readers will not infer that an if-then relationship exists between them merely because two sentences are in collocation one after another. c. Moreover, the understanding that GAME 5 of the “Fun 5’s” is a two ways-to-win game is reinforced for players because three of the other four games are two-ways-to-win games. Moreover, by adding clarifying language to the second sentence, e.g., the words “bonus,” “multiplier,” or “the PRIZE won” (instead of the allegedly ambiguous “that PRIZE”), the language of GAME 5 could easily have been written to accurately reflect the parameters of the game. With respect to this latter point, speakers will not understand “that PRIZE” to refer to ‘a prize that has been won in the tic-tac-toe first part of the game’, but rather ‘the prize that is revealed under the “PRIZE” box’. The word that is a deictic pronoun; the default referent for a deictic pronoun in ordinary speaker understanding is the nearest and least complicated antecedent. In this case, the nearest and most uncomplicated antecedent is “PRIZE in PRIZE box.” The idea ‘prize that you would have won if you had won the tic-tac-toe portion of the game’ is not the nearest antecedent, and it is far too complicated and cognitively obscure to act as a reasonable antecedent.
The methodology used by Dr. Butters to arrive at his opinions is as follows:
d. My opinions are based upon the application of general principles of the science of linguistics, particularly the branches of linguistics called syntax, discourse analysis, semantics, and semiotics. In addition, I have drawn upon my experience as scholar, teacher, and administrator in university writing programs that are dedicated to the teaching and production of clear and coherent writing.”
A newly added expert is Jacqueline M. Henkel, Ph.D. who is an associate professor in the Department of Rhetoric and Writing at the University of Texas in Austin. A summary of Dr. Henkel’s expected testimony was provided as follows:
“2) Dr. Henkel will testify regarding the meaning of the instructions printed on the Fun 5’s scratch-off ticket at issue, and a reader’s interpretation of those instructions. In doing so, she will rely upon her expertise regarding the English language, including: English writing, writing instruction, and grammar; rhetorical analysis; English language linguistics; narrative theory; and discourse theory.
3) The general substance and methodology of Dr. Henkel’s opinions are as follows:
a. The two sentences in the instructions of game 5 of the Fun 5’s ticket are much more liable to interpretation as an either/or choice—as separate routes to a winning ticket—as opposed to winning the second part being dependent upon winning the first part.
b. Writers can shape readers’ interpretive responses through repeated syntactic and semantic patterns. In this case, since ticket-holders are most likely to read the ticket like any other text—from left to right and from top to bottom—they will have read four sets of game instructions before encountering the fifth game. Like the fifth game, three of those sets of instructions take the form of two imperatives. In each case those two sentences represent two paths to a win—an either/or choice. Game 4 exemplifies the pattern: gamers can win by revealing three symbol 5’s in a row or by finding two 5’s and a star in one row. There is no suggestion that one need do both to win—that is, succeed in two rows. It thus makes sense that gamers would similarly interpret the instructions for Game 5. The language supports such an interpretation, and the instructions similarly outline different tasks in different parts of the game box (in two rows in Game 4, in a diagonal, column, or row and a lower row in Game 5).
c. If readers’ expectations are shaped in one direction, then it is incumbent on the writer to clearly mark a change or break in another direction. For example, in this case, a break in the pattern might have been marked with
Pls.’ Expert Designations Page 5 of 15
a suggestive title (“The Texas Two-Step 5”) and an instructive heading marked with clarifying adverbs (“If you win in step one, you may then try your luck in step two! First . . . .”). The creators might have additionally underscored the point through “visual rhetoric,” by marking through the artwork that Game 5 was a distinctive or culminating game.
d. Although someone might possibly construe the demonstrative determiner in the phrase “that prize” of the second sentence of Game 5 to refer to the “prize” revealed by winning tic-tac-toe according to the instruction of the first sentence, deictic analysis reveals this to be an unlikely reading. Readers/hearers are disposed to construe as relevant the (syntactically) nearest possible referent for a deictic element. In this case the nearest referent for “that prize” is actually in the same sentence, namely the “moneybag” prize revealed in the 5x box (and the prize box connected to it), a prize revealed within the scope of the second instruction alone. Beginning writers are often told to clarify pronouns or other devices with uncertain or multiple antecedents; this is called “vague reference,” a term found in any grammar handbook. Once again, the two instructions make sense as independent paths to a win.
e. If it were intended that a player had to win the first part of Game 5 (the tic-tac-toe) in order to be eligible to win 5X the prize in the second part of Game 5, there are various alternative ways in which the instructions could have been written to convey this intent.”
Background of the Fun 5’s lawsuit.
The lawsuit, pending in state district court in Travis County, alleges that GTECH used misleading and deceptive language on Fun 5’s scratch-off tickets printed by GTECH and sold in Texas. GTECH operated a nearly identical Fun 5’s game in several other states before proposing the game to the Texas Lottery Commission. The language used by GTECH on the Fun 5’s tickets is the crux of the problem. Fun 5’s tickets printed by GTECH in Kansas, Indiana, and Nebraska contained a tic-tac-toe game designated as Game 3. In Texas, the same tic-tac-toe game was designated as Game 5. The instructions for the Fun 5’s tic-tac-toe game in those three states and in Texas are almost identical and provide as follows:
Kansas: Get a “5” symbol in the BONUS box, win 5 times that Prize!
Indiana: Get a “5” symbol in the bonus box, win 5 times the prize shown.
Nebraska: Get a “5” symbol in the 5X box and win 5 times that PRIZE.
Texas: Reveal a Money Bag ” 
” symbol in the 5X BOX, win 5 times that PRIZE.
The suit alleges that in Kansas, Indiana, and Nebraska, 100% of the tickets with a “5” symbol were “winning” tickets and those players received 5 times the prize shown on the ticket. In Texas, the original parameters of the game likewise provided that 100% of the tickets with a Money Bag symbol would be “winning” tickets. Use of the same language in Texas as that used in the other states would have been accurate if 100% of the tickets with a Money Bag symbol were “winning” tickets as in the other states. However, the suit alleges that GTECH and the Texas Lottery Commission decided to change the parameters of the game in Texas so that a “substantial percentage” of tickets with a Money Bag symbol would be designated as “non-winning” tickets. Despite the significant change in the parameters of the game, GTECH decided to leave the language on the tickets as is. The suit alleges that GTECH misled at least 1,000 Texas Lottery players into justifiably believing they had “winning” tickets.
The Texas Lottery began selling Fun 5’s tickets on September 1, 2014. Almost immediately phone calls began to pour into the Texas Lottery Commission from angry lottery players who believed they had “winning” tickets but were told otherwise when they attempted to cash their tickets. Amazingly, despite these early warning signs that the Fun 5’s tickets were misleading, GTECH continued delivering the Fun 5’s tickets to retailers and the tickets continued to be sold to Texas consumers for at least seven weeks. On October 21, 2014, the Texas Lottery issued a press release to announce that it was closing the Fun 5’s game early and would discontinue selling the tickets, citing “confusion” expressed by players and the Texas Lottery’s responsibility to create games that are “clear to understand for our players”. A large number of the disappointed Fun 5’s players contacted their Texas legislators. Others contacted the Travis County District Attorney. Still others contacted then Attorney General Gregg Abbott’s office asking for an investigation. When they got no satisfaction from their elected officials, players with Money Bag symbols on their Fun 5’s tickets filed suit against GTECH. Approximately 1,000 players have joined in the lawsuit and more are joining each week. The total winnings being claimed by the disappointed players is at least $504 million.
What is a Responsible Third Party?
In 1995, the Texas Legislature enacted Section 33.004 of the Texas Civil Practice and Remedies Code to permit a defendant in a tort-based lawsuit to file a motion with the court to designate a non-party to the lawsuit as a “Responsible Third Party”. Lawyers often refer to this party as an “RTP”. If a defendant is permitted to designate an RTP and if the defendant proves that the RTP is partly responsible for the damages suffered by the plaintiffs, the jury is required to assess the percentage of responsibility of the RTP. The percentage assessed against the RTP reduces the liability of the defendant and reduces the recovery of the plaintiffs unless they bring the RTP into the lawsuit.
What does GTECH gain and lose if it points the finger at the Lottery Commission?
Under the Civil Practice and Remedies Code, GTECH has until 60 days before trial to designate the Lottery Commission as an RTP. Whether it will actually do so is not yet known. What is known is that GTECH has much to gain and much to lose if it pulls the trigger. If it designates the Lottery Commission as an RTP, GTECH will have the chance to reduce its liability, but only if it convinces the jury that the Commission was partly responsible for causing the players’ losses. However, GTECH risks alienating both the Lottery Commission and the Texas Legislature if it attempts to shift blame. GTECH’s mere threat that it “may” designate the Commission as an RTP will require the players to take the sworn deposition testimony of the Commission’s staff and officials to determine whether the Commission was at fault. The usually cozy relationship between the Commission and its contract operator may be damaged by GTECH’s finger pointing and attempts to place the blame on the Commission. The Texas Legislature will not be thrilled either. By designating the Commission as an RTP, GTECH will incentivize the players to seek approval from the Texas Legislature to bring the Lottery Commission into the lawsuit. A group of over 1,000 angry lottery players who believe they are owed $504 million makes for a very motivated and dangerous constituency group that may become angry at their elected officials if their needs are not met. The Texas Lottery faced a near death penalty in the recent past when the Legislature nearly killed the lottery during sunset proceedings. By trying to lay blame on the Lottery Commission and its staff, GTECH may lose friends at both the Commission and in the Legislature and may inadvertently lend support to those Legislators who have been trying to kill the lottery. GTECH also runs the risk of alienating other states that are shopping for a contract lottery operator. One of the selling points used by GTECH to get lucrative government contracts in the past is that it has vast experience in running lotteries all over the world. If GTECH gains a reputation for blaming state lottery officials for misleading scratch-off games, it may lose some of its advantage in competing for lottery contracts in other states. Only GTECH knows whether it will actually pull the trigger and designate the Texas Lottery Commission as an RTP. The coming months should prove interesting for GTECH, the disappointed lottery players, the Lottery Commission, and the Texas Legislature.
I
The post GTECH May Blame Texas Lottery Commission for Fun 5’s Fail first appeared on SEONewsWire.net.]]>The dispute revolves around Game 5 of the Fun 5’s game. The instructions on the ticket read as follows:
“Reveal three “5” symbols in any one row, column or diagonal, win PRIZE in PRIZE box. Reveal a Money Bag “ ” symbol in the 5X BOX, win 5 times that PRIZE.”
The official regulations for the Fun 5’s game read as follows:
“GAME 5: If a player reveals three “5” Play Symbols in any one row, column or diagonal, the player wins the PRIZE in the PRIZE box. If a player reveals a “MONEY BAG Play Symbol in the 5X BOX, the player wins 5 times that PRIZE.
The lawsuit alleges that GTECH programmed its computers to reject tickets as losers unless they met a requirement not found in the instructions or in the official game regulations as follows:
Reveal three “5” symbols in any one row, column or diagonal, win PRIZE in PRIZE box. [And, if you also] Reveal a Money Bag “ ” symbol in the 5X BOX, win 5 times [the] PRIZE [won].
The suit alleges that GTECH was negligent when it programmed its computers to reject tickets as losers that should have been declared winners. The suit also alleges that once GTECH learned of its mistake, it intentionally continued to use the non-conforming computer program to tortiously interfere with the expectancy the lottery players had of receiving the prizes they had been promised.
The suit was filed in Travis County state district court by Houston attorney Richard LaGarde and by his co-counsel, Manfred Sternberg. Click here to read a copy of Plaintiffs’ 1st Amended Petition
The post 419 Lottery Players Join Lawsuit Against GTECH first appeared on SEONewsWire.net.]]>The dispute revolves around Game 5 of the Fun 5’s game. The instructions on the ticket read as follows:
- “Reveal three “5” symbols in any one row, column or diagonal, win PRIZE in PRIZE box. Reveal a Money Bag “ ” symbol in the 5X BOX, win 5 times that PRIZE.”
The official regulations for the Fun 5’s game read as follows:
- “GAME 5: If a player reveals three “5” Play Symbols in any one row, column or diagonal, the player wins the PRIZE in the PRIZE box. If a player reveals a “MONEY BAG Play Symbol in the 5X BOX, the player wins 5 times that PRIZE.
The lawsuit alleges that GTECH programmed its computers to reject tickets as losers unless they met a requirement not found in the instructions or in the official game regulations as follows:
- Reveal three “5” symbols in any one row, column or diagonal, win PRIZE in PRIZE box. [And, if you also] Reveal a Money Bag “ ” symbol in the 5X BOX, win 5 times
that[the] PRIZE [won].
The suit alleges that GTECH was negligent when it programmed its computers to reject tickets as losers that should have been declared winners. The suit also alleges that once GTECH learned of its mistake, it intentionally continued to use the non-conforming computer program to tortiously interfere with the expectancy the lottery players had of receiving the prizes they had been promised.
The suit was filed in Travis County state district court by Houston attorney Richard LaGarde and by his co-counsel, Manfred Sternberg. Click here to read a copy of the petition.
The post $248 million suit filed against operator of Texas Lottery first appeared on SEONewsWire.net.]]>Averaging more than $3 million in weekly ticket sales since it was introduced on September 1st, the Fun 5’s scratch-off game was one of the Texas Lottery’s top selling games. However, angry consumers began complaining to their State Representatives when their winning tickets were rejected as losers. On October 21st, the Lottery Commission announced it would be prematurely ending the game because of what it described as “confusion regarding certain aspects of this popular game.”
The dispute arises from the language used on Game 5 of the Fun 5’s tickets. The instructions appear to provide two separate and independent ways to win a prize. “Reveal three “5” symbols in any one row, column or diagonal, win PRIZE in PRIZE box. Reveal a Money Bag symbol in the 5X BOX, win 5 times that PRIZE.” Lottery officials now say that in order to win 5 times the prize, you must not only reveal a Money Bag symbol, you must also reveal three “5” symbols in a row.
Richard LaGarde, one of the attorneys for Ms. Nettles and for over 400 additional lottery players, argues that the lottery is not being fair to lottery players. “These folks spent their hard-earned money for lottery tickets. They were promised that if their ticket revealed a Money Bag symbol they would win five times the prize amount shown on the ticket. Now the lottery commission wants to take away their winnings by adding the words “If you also” to the second sentence of the game instructions. That’s not fair to the hundreds of folks who truly believe they have winning tickets. You don’t re-write the rules to a game after you’ve already taken the consumers’ money. If the lottery is not open and fair in all respects, it loses legitimacy in the eyes of the people and their elected representatives.”
Judge Yelenosky’s ruling did not comment on the merits of Nettles’ case. It simply means that Nettles and hundreds of her fellow lottery players will now have to file suit to find out who is responsible for choosing the language used on the tickets and for programming the lottery’s computers to reject their winning tickets.
The post Judge Rejects Request for Pre-Suit Discovery from Texas Lottery first appeared on SEONewsWire.net.]]>