United States Court of Appeals For the First Circuit
No. 23-1291
A. RICHARD SCHUSTER, individually and on behalf of all others similarly situated,
Plaintiff, Appellant,
ROBERT RANSON,
Plaintiff,
v.
WYNN MA, LLC; WYNN RESORTS, LTD; WYNN RESORTS HOLDINGS, LLC,
Defendants, Appellees,
MA GAMING COMMISSION and EDWARD R. BEDROSIAN, JR.,
Interested Parties.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
Joshua N. Garick, with whom Law Offices of Joshua N. Garick P.C., David Pastor, and Pastor Law Office, LLP were on brief, for appellant. Wayne F. Dennison, with whom Joshua P. Dunn and Brown Rudnick LLP were on brief, for appellees. September 23, 2024 MONTECALVO, Circuit Judge. A. Richard Schuster
challenges the practice by which the Defendant-Appellees Wynn MA,
LLC, Wynn Resorts, Ltd., and Wynn Resorts Holdings, LLC
(collectively "Wynn") redeem slot-machine tickets at Encore Boston
Harbor Casino ("Encore"). He brings claims for unjust enrichment,
unfair and deceptive business practices pursuant to section 2 of
Massachusetts General Laws Chapter 93A, breach of contract,
promissory estoppel, and conversion. He appeals the district
court's dismissal of his unjust enrichment claim and its grant of
summary judgment in favor of Wynn on his remaining claims. For
the following reasons, we affirm.
I. Background1
Wynn owns and operates Encore, a casino in Everett,
Massachusetts. At Encore, when a patron is finished using a slot
machine, they press the "cashout" button and the slot machine
dispenses a ticket, known as a "TITO ticket,"2 that reflects the
value of the patron's money at the moment they finish gaming. The
patron can then insert the TITO ticket into a different slot
machine to continue gaming or redeem it. The redemption process
is the heart of this dispute.
"On review of an order granting summary judgment, we recite 1
the facts in the light most favorable to the nonmoving party." Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157–58 (1st Cir. 2016) (quoting Commodity Futures Trading Comm'n v. JBW Cap., 812 F.3d 98, 101 (1st Cir. 2016)). 2 "TITO" is an industry acronym for "ticket in, ticket out."
- 3 - There are two possible paths toward redemption for the
patron. The first option is to take the TITO ticket to one of two
cashier cages at Encore where an employee will provide dollars and
coins equal to the full value of the TITO ticket. The second
option is to redeem the TITO ticket at one of the twenty-eight
self-serve kiosks known as ticket redemption units ("TRUs") that
are placed throughout the casino. When Encore first opened, the
TRUs dispensed both dollars and coins when redeeming TITO tickets.
But, within a few days, Wynn decided to make the TRUs coinless,
meaning that when a patron used a TRU, it only dispensed bills for
the value of a TITO ticket followed by a "TRU ticket" for any
remaining value in cents. The patron could then redeem the TRU
ticket at the cashier cage, insert it into a slot machine (which
will accept the TRU ticket even though it does not accept physical
coins), or simply discard the ticket.3
Schuster argues that this ticket redemption practice
violates Encore's internal controls and Massachusetts gaming
regulations and is therefore an unfair or deceptive act in
violation of Massachusetts' consumer protection statute. See 205
3 Below, the parties disputed the language on the TRU ticket. But the TRUs' Operator Guide from its manufacturer, part of the record here, includes an example of a ticket labeled "Kiosk Receipt" that will be printed in the event the TRU does not dispense the full cash value of the TITO ticket. The "Kiosk Receipt" displays the "[a]mount [r]emaining" owed to the patron and instructs the patron to "[p]lease take receipt to cashier."
- 4 - Mass. Code Regs. § 138.02(7) ("[T]he gaming licensee shall
implement and abide by its system of internal controls."); Mass.
Gen. Laws ch. 93A, § 2. As required by Massachusetts regulations,
Wynn submitted Encore's internal controls to the Massachusetts
Gaming Commission ("MGC")4 for approval prior to opening Encore.
See 205 Mass. Code Regs. § 138.02(1) (2023). Under the relevant
regulations, the internal controls were required to "include
provisions governing a computerized gaming voucher system for the
redemption of gaming vouchers that comports with 205 [Mass. Code
Regs. §] 143.00: Gaming Devices and Electronic Gaming Equipment."
205 Mass. Code Regs. § 138.51 (2023). Regulation 143.00 in turn
specifies that a gaming licensee, like Wynn, must comply with
industry standards set in the GLI-20 by Gaming Laboratories
International, LLC, as they are incorporated into and modified by
Massachusetts gaming regulations.5 205 Mass. Code Regs. § 143.07
(2022).
4 MGC is the "principal entity charged with implementing the provisions of the [Massachusetts Gaming Act]" and its accompanying regulations. KG Urb. Enters., LLC v. Patrick, 693 F.3d 1, 4 (1st Cir. 2012) (citing Mass. Gen. Laws ch. 23K, § 3(a) (2014)). 5 The current regulations require a licensee to comply with the standard set in the GLI-20 (version 2.0), which was released May 14, 2019. 205 Mass. Code Regs. § 143.07(1) (2022). However, the GLI-20 (version 1.5) was the controlling standard from September 6, 2011, up until December 8, 2022. 205 Mass. Code Regs. § 143.07 (2014). As we will discuss later, one of Schuster's arguments hinges on whether Encore's coinless practice violates the GLI-20. The parties dispute whether the updated GLI-20 (version 2.0) permits the coinless practice. However, as they
- 5 - The GLI-20 contains a section on kiosk
"Ticket/Voucher/Coupon Redemption." The language at the relevant
time stated, among other things, that "[w]hen using a Kiosk as the
method of redemption [of a valid slot-machine ticket], . . . [t]he
system [must] . . . transmit to the Kiosk the amount to be paid or
instruct the kiosk to reject the ticket/voucher." When the kiosk
pays out a ticket, the "payment is made [by dispensing] various
denominations[ of] coin and currency." However, "[i]f the Kiosk
has a printer that is used to make payments, the kiosk may pay the
player by issuing a printed ticket/voucher."
Encore's internal controls duly outlined the casino's
use of TRUs. The internal controls noted that each machine was
manufactured to have three coin hoppers to distribute three
denominations of coins. The internal controls explained that when
a patron inserts a valid gaming voucher, "the TRU [would]
dispense[] to the patron the appropriate amount of funds and the
gaming voucher [would be] electronically noted 'redeemed' in
[Encore's] system."
Schuster first visited Encore on July 11, 2019, and gamed
at multiple slot machines. He redeemed TITO tickets at multiple
TRUs and "received cash to the nearest dollar" and TRU tickets for
agree the GLI-20 (version 1.5) was in effect during the relevant period, we limit our analysis accordingly.
- 6 - the remaining coins. He inserted some of his TRU tickets into
slot machines to continue gaming and discarded others.
On July 15, 2019, Schuster filed a class action lawsuit
against Wynn in Massachusetts state court. He alleged that Wynn
was "stealing money" from patrons because TRUs did not dispense
coins.6 That same day, the Massachusetts Investigations and
Enforcement Bureau ("IEB") learned of Schuster's pending lawsuit
and began an investigation.7 As a result of the IEB's involvement,
Wynn placed a sign on each TRU stating: "Machine only dispenses
cash, ticket will print for change. Please take ticket to the
cashier to redeem." Wynn sent a photo of the sign to IEB
investigators, one of whom responded, saying that the sign "[l]ooks
acceptable." In its report to the MGC, the IEB noted the addition
of this signage and the IEB's understanding that any unclaimed
cash would be "deposited into the Commonwealth's Gaming Revenue
Fund." Additionally, IEB Gaming Agent Keven Depina noted in an
email that the "IEB did not find any discrepancies while conducting
a line-by-line comparison between the [gaming] regulation[s] and
Encore['s internal controls]."
6 Schuster also brought claims regarding Encore's blackjack odds, which are no longer at issue. 7 The Massachusetts Gaming Act created the IEB and vested in it the powers of a law enforcement agency "necessary to effectuate the purposes" of the Gaming Act. Mass. Gen. Laws ch. 23K, § 6(b) (2011). The IEB's responsibilities include "investigat[ing] any suspected violations of" the Gaming Act. Id.
- 7 - On July 18, 2019, the MGC held a public meeting during
which its representatives discussed Encore's coinless TRU
practice. Encore's then-president, Robert DeSalvio, stated that
Encore implemented the coinless practice because when the TRUs ran
out of coins they went "into a tilt" and patrons seeking to redeem
their TITO tickets would have to wait until the TRU was refilled,
rebalanced, and back in service.8 The IEB Assistant Director,
Bruce Band, explained that the IEB initially believed notice of
the coinless TRU practice "was not posted clearly enough" to inform
patrons but that Encore had addressed this issue by adding the
signage on the TRU machines. Band further explained that any TRU
tickets that were not redeemed within a year would constitute
unclaimed cash pursuant to Massachusetts General Laws Chapter 23K,
§ 53 (2011), meaning that the value of the unclaimed cash would be
deposited into the Commonwealth's Gaming Revenue Fund.9
8 Throughout the course of this litigation, Wynn has offered other reasons for the coinless TRU practice. In a supplemental response to an interrogatory, Wynn maintained that "[i]n the days and weeks after the grand opening, the TRUs experienced frequent coin jams and . . . malfunctions," and Wynn employees later testified that the change was in response to customer complaints about the TRUs. 9 Under Massachusetts gaming regulations, a gaming licensee's internal controls are required to "include provisions governing . . . unclaimed cash and prizes" that, at a minimum, must include the transfer of funds to the Gaming Revenue Fund if they are not claimed within a year, in accordance with Massachusetts General Laws Chapter 23K, §§ 53, 59. 205 Mass. Code Regs. § 138.68(1).
- 8 - During the meeting, the MGC representatives expressed
concern over the prospect that money would "erroneously [go] to
the Commonwealth fund" because patrons would be frustrated by the
redemption. The MGC suggested that Encore add signage about the
coinless practice throughout the casino and have some TRUs dispense
coins. In response, Wynn placed two TRUs dispensing coins closest
to the cashier cage on the first floor. Wynn also added a digital
display to the remaining TRUs, notifying patrons that the TRU did
not dispense coins with the following message: "This Ticket
Redemption Machine will pay out in cash. Tickets will print for
change and can be redeemed at the cashier." However, Wynn did not
add any signage on the slot machines or throughout Encore's casino
floor. Schuster continued to visit Encore after filing this
lawsuit, and -- when dispensed TRU tickets during his visits -- he
would "either put [his TRU ticket] in another slot machine, usually
one near the TRUs, or [he] would [] discard[] it."
II. Procedural History
In his initial state-court complaint, Schuster brought
four common law claims: breach of contract, promissory estoppel,
conversion, and unjust enrichment. After Wynn removed the case to
federal court, Schuster amended his complaint, adding a claim for
unfair and deceptive business practices under Massachusetts
General Laws Chapter 93A, § 2. The district court granted Wynn's
motion to dismiss Schuster's unjust enrichment claim. The district
- 9 - court found that Schuster's pursuit of equitable relief under the
unjust enrichment claim failed as a matter of law because Schuster
had an adequate remedy at law, via the Chapter 93A claims. The
court later granted Wynn's motion for summary judgment on all
remaining claims and simultaneously denied Schuster's motion for
class certification as moot. In doing so, the district court
determined that, even viewing the facts in the light most favorable
to Schuster, the record did not present any basis for him to
prevail on his arguments that the coinless practice was unfair or
deceptive. Additionally, the court concluded that Schuster could
not establish that the coinless practice was a violation of a
contract or other promise or amounted to an unlawful conversion.
Schuster filed this timely appeal challenging the district court's
dismissal of his unjust enrichment claim at the pleadings stage
and grant of summary judgment on his remaining claims.
III. Discussion
"As a federal court sitting in diversity, we apply the
substantive law of Massachusetts, as articulated by the
[Massachusetts Supreme Judicial Court] [('SJC')]." Tomasella v.
Nestlé USA, Inc., 962 F.3d 60, 70 (1st Cir. 2020) (first alteration
in original) (quoting Shaulis v. Nordstrom, Inc., 865 F.3d 1, 6
(1st Cir. 2017)). Where the SJC "has not spoken directly on the
question at issue, we must predict, as best we can, that court's
- 10 - likely answer." Id. (quoting Nolan v. CN8, 656 F.3d 71, 76 (1st
Cir. 2011)).
A. Unjust Enrichment
We begin by addressing Schuster's unjust enrichment
claim, which is the only dispute related to the earlier motion to
dismiss and can be easily disposed of. We review the district
court's dismissal of this claim de novo. Efron v. UBS Fin. Servs.
Inc. of P.R., 96 F.4th 430, 437 (1st Cir. 2024) (quoting Pruell v.
Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012)). The district
court dismissed this claim because Schuster had an adequate remedy
at law under Chapter 93A. We agree with the district court.
As unjust enrichment is an equitable remedy, under
Massachusetts law, a plaintiff's claim is properly dismissed when
there is an adequate legal remedy available. Tomasella, 962 F.3d
at 82-83; see also ARE-Tech Square, LLC v. Galenea Corp., 79 N.E.3d
1111 (Mass. App. Ct. 2017). We have previously held that Chapter
93A provides an adequate legal remedy for similar unjust enrichment
claims. See Tomasella, 962 F.3d at 83-84; Shaulis, 865 F.3d at
16. Here, Schuster's unjust enrichment claim seeks to redress the
same injury as that alleged under Chapter 93A, and, therefore, the
claim was properly dismissed. Further, the likelihood of success
under this Chapter 93A claim is irrelevant, as "[i]t is the
availability of a remedy at law, not the viability of that remedy,
that prohibits a claim for unjust enrichment." See Tomasella, 962
- 11 - F.3d at 82-83 (alteration in original) (emphases added) (quoting
Shaulis, 865 F.3d at 16).
B. Schuster's Remaining Claims
Schuster next challenges the district court's grant of
summary judgment on his claims against Wynn for (1) violation of
Chapter 93A and (2) breach of contract, promissory estoppel, and
conversion. Schuster's appeal is unsuccessful on all claims.
1. Standard of Review
This court reviews the district court's grant of summary
judgment de novo. Penobscot Nation v. Frey, 3 F.4th 484, 490 (1st
Cir. 2021), cert. denied sub nom. United States v. Frey, 142 S.
Ct. 1668 (2022), and cert. denied, 142 S. Ct. 1669 (2022). We
construe the record "in the light most congenial to the nonmovant"
and will affirm the district court's grant of summary judgment if
there is "no genuine issue as to any material fact" and the movant
is entitled to judgment as a matter of law. McKenney v. Mangino,
873 F.3d 75, 80 (1st Cir. 2017).
2. Schuster's Chapter 93A Claims
Schuster asserts that Encore's coinless practice is both
unfair and deceptive under Chapter 93A. Chapter 93A,
Massachusetts' consumer protection statute, is broadly written.
Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016)
(citing Mass. Gen. Laws ch. 93A, § 2). The legislature utilized
"open-ended" language like "unfair" and "deceptive" with the
- 12 - intention of "allow[ing] for the regulation [by the Attorney
General] of future, as-yet-undevised, business practices."
Robinhood Fin. LLC v. Sec'y of Commonwealth, 214 N.E.3d 1058, 1070
(Mass. 2023) (second alteration in original) (quoting Purity
Supreme, Inc. v. Att'y Gen., 407 N.E.2d 297, 303 (Mass. 1980)).
To receive relief under Chapter 93A, a plaintiff "must
prove that the defendant engaged in 'unfair or deceptive acts or
practices in the conduct of any trade or commerce.'" Walsh, 821
F.3d at 160 (quoting Mass. Gen. Laws ch. 93A, § 2). Additionally,
the plaintiff must establish causation, meaning the plaintiff must
"prove that the defendant's unfair or deceptive act caused an
adverse consequence or loss." Id. (citing Rhodes v. A.I.G.
Domestic Claims, Inc., 961 N.E.2d 1067, 1076 (Mass. 2012)).
In establishing an "unfair or deceptive act or
practice," it is "neither necessary nor sufficient that a
particular act or practice violate common or statutory law."
Anoush Cab, Inc. v. Uber Techs., Inc., 8 F.4th 1, 16 (1st Cir.
2021) (quoting Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,
Inc., 552 F.3d 47, 69 (1st Cir. 2009)). While the question of
"whether a particular set of acts, in their factual setting, is
unfair or deceptive is a question of fact, the boundaries of what
may qualify for consideration as a 93A violation is a question of
law." Id. at 15 (quoting Incase Inc. v. Timex Corp., 488 F.3d 46,
57 (1st Cir. 2007)).
- 13 - a. Alleged Unfair Practice
The text of Chapter 93A does not provide a definition of
"unfair or deceptive acts or practices," but the SJC has identified
several factors for courts to use in determining whether an act or
practice is unfair. See Mass. Gen. Laws ch. 93A, §§ 1, 2; Columbia
Plaza Assocs. v. Ne. Univ., 227 N.E.3d 999, 1017 (Mass. 2024).
The court considers whether the conduct: (1) "is within at least
the penumbra of some common-law, statutory, or other established
concept of unfairness"; (2) "is immoral, unethical, oppressive, or
unscrupulous"; and (3) "causes substantial injury to consumers or
other businesses." Columbia Plaza Assocs., 227 N.E.3d at 1017
(citation omitted).
Schuster argues "this [practice of not dispensing coins
directly from the TRUs] is unfair because it is contrary to
[Encore's] own [i]nternal [c]ontrols, various other legal
authorities, and is otherwise immoral, unethical, oppressive[,]
and unscrupulous."10 He also contends that Wynn's shifting
10Schuster also argues that the TRUs' failure to dispense coins amounts to "a return, refund or cancellation issue" under Chapter 93A and a violation of Encore's internal controls. See 940 Mass. Code Regs. § 3.13(4) ("It is an unfair practice" to: "fail to clearly and conspicuously disclose to a buyer, prior to the consummation of a transaction, the exact nature and extent of the seller's refund, return, or cancellation policy"; "misrepresent the nature and terms of the seller's refund, return, or cancellation policy"; or "fail to perform any promises made to a buyer in connection with the refund, return, or cancellation privileges."). We agree with Wynn's contention that this argument was forfeited below because Schuster did not squarely raise it
- 14 - rationale for the coinless practice demonstrates unfairness.11
Wynn disputes each of these arguments.12
i. Internal Controls and Regulations
We begin with Schuster's three-part argument: that the
coinless practice violates Encore's internal controls; that this
in turn violates Massachusetts gaming regulations; and, from both
of these, Encore has violated Chapter 93A. Without accepting
Schuster's premise underlying step 3, we reject the argument at
before the district court. An argument that was not preserved below typically cannot be raised on appeal; at best we will review an unpreserved argument for plain error. United States v. Benjamin-Hernandez, 49 F.4th 580, 584 (1st Cir. 2022). However, because Schuster's "brief fails to even mention plain error, let alone argue for its application here," the argument is waived and will not be considered. Id. at 585. 11 Schuster also claims the district court's decision is erroneous because the court improperly acted in a "novel 'legal gatekeeper'" role while granting summary judgment on his Chapter 93A claim. But the SJC has ruled that the boundaries of liability under Chapter 93A are issues of law for the judge to determine. See Milliken & Co. v. Duro Textiles, LLC, 887 N.E.2d 244, 259 (Mass. 2008). The normal rules of civil procedure apply, including both Rules 12(b)(6) and 56. At summary judgment, the issue for the court is whether the plaintiff has produced sufficient facts to create a material issue of fact in support of a claim within those boundaries. Fed. R. Civ. P. 56; see, e.g., Zielinski v. Citizens Bank, N.A., 552 F. Supp. 3d 60, 72 (D. Mass. 2021) (concluding that plaintiff did "not create[] a genuine dispute of material fact that the entirety of [defendant's] conduct was unfair or deceptive"). Accordingly, Schuster's argument fails. 12Additionally, Wynn contends that we can affirm the district court's decision on other grounds. Namely, Wynn argues that the MGC approved the coinless practice and Schuster has failed to establish the necessary causation element of his Chapter 93A claim. We need not reach these arguments.
- 15 - steps 1 and 2. Encore is required to comply with its internal
controls, which in turn must conform to Massachusetts regulations
and the industry standards set by the GLI-20, as they are
incorporated into Massachusetts law. See 205 Mass. Code Regs.
§§ 138.51, 143.07. Schuster argues that the coinless practice
does not comply with the appropriate standards. Specifically, he
points to Encore's internal controls, which demand that TRUs pay
patrons the "appropriate amount of funds" when they redeem a TITO
ticket. In his view, this requires the disbursement of dollars
and coins that equal the full value of the ticket. He similarly
maintains that the GLI-20's standard for kiosk redemption does not
allow Encore to implement its coinless practice because the GLI-20
requires the TRUs to dispense cash and coins.
Wynn argues the coinless practice complies with the
relevant internal controls and regulations. Specifically, Wynn
argues that the term "funds" as set out in Encore's internal
controls is not limited to dollars and coins, as Schuster suggests,
but encompasses "currency, a gaming voucher, or a coupon."
(Quoting 205 Code Mass. Regs. § 138.33(7)). Additionally, Wynn
maintains that the applicable GLI standard allows TRUs to pay
patrons "in whole or in part with a voucher or ticket."
We agree with the district court that Schuster's
argument on this issue is "fatally flawed." Schuster v. Wynn
Resorts Holdings, LLC, No. 19-11679, 2023 WL 2248886, at *6 (D.
- 16 - Mass. Feb. 27, 2023). Under Encore's internal controls, TRUs must
dispense the "appropriate amount of funds" when redeeming a ticket.
The parties' dispute on this issue comes down to a simple question:
Is the term "funds" limited to cash and coin currency? We answer
that question in the negative.
Encore is bound to its internal controls to dispense the
"appropriate amount of funds" under 205 Code Mass. Regs.
§ 138.02(7). The plain language of the relevant regulations
contemplates a TRU redemption system that includes gaming
vouchers. See 205 Mass. Code Regs. § 138.01; DeCosmo v. Blue Tarp
Redevelopment, LLC, 169 N.E.3d 510, 516 (Mass. 2021) (interpreting
Massachusetts gaming regulations by giving the language "its plain
meaning" (quoting Boss v. Leverett, 142 N.E.3d 1113, 1118 (Mass.
2020))). While the relevant regulations do not explicitly define
"funds," they define "unsecured funds" as "currency, a gaming
voucher, or a coupon" that is "found inside a slot machine but
outside of the slot drop box during the collection of slot drop
boxes." 205 Mass. Code Regs. § 138.33(7) (emphases added); see
also 205 Mass. Code Regs. § 138.01. Because the definition of
unsecured funds encompasses gaming vouchers and coupons, we reject
Schuster's argument that "funds" must be defined only as "[c]ash
mean[ing] currency or coin." 205 Mass. Code Regs. § 138.01
(emphasis omitted). Thus, Encore's definition of "funds" as
including a voucher or a ticket does not violate the Massachusetts
- 17 - regulations. See 205 Mass. Code Regs. § 138.33(7). And Encore's
internal controls do not mandate that the TRUs pay out patrons
using only cash and coins as Schuster suggests.
Our understanding that the phrase "appropriate amount of
funds" includes more than just cash and coins is further supported
by language in the GLI-20, as it was incorporated into law by 205
Mass. Code Regs. § 143.07. Despite Schuster's insistence to the
contrary, the GLI-20's standards for redemption kiosks, such as
TRUs, "does not require [them to] . . . dispense both cash and
coin." Schuster, 2023 WL 2248886, at *6. The GLI-20 (version
1.5) provides that "kiosk[s] may pay the player by issuing a
printed ticket/voucher."13 The GLI-20 permits kiosks to print
"[t]icket[s]/vouchers that reflect partial credits," and allows
such "ticket[s]/voucher[s]" to be "redeemed at a gaming device,
cashiers cage or [another] kiosk," at which point "the system must
change the 'Pending' status of the ticket/voucher to 'Redeemed.'"
Thus, reading Encore's use of "funds" in its internal
controls in conjunction with the language in the regulations
13 Schuster concedes the GLI-20 language permits use of vouchers to "cover [] some transactions," but argues the language does not permit a TRU to issue partial vouchers for coins as a default. However, the version of the GLI-20 we are focused on does not specify that its language allowing kiosks to "pay the player by issuing a printed ticket/voucher" is limited only to situations where the TRU malfunctions or runs out of coins as Schuster suggests. And Schuster has provided no other support for his contention.
- 18 - permitting gaming vouchers, "it is apparent that a TRU can dispense
'the appropriate amount of funds' by dispensing cash and a TRU
ticket that can be redeemed at a cashier window or used for further
gaming." Schuster, 2023 WL 2248886, at *7.
However, the fact that the coinless practice does not
violate Encore's internal controls or the relevant regulations
does not end our analysis. See Anoush Cab, Inc., 8 F.4th at 16-17
(citations omitted) ("[C]onduct that does not violate statute or
common law is not necessarily exempt from liability under Chapter
93A.").
ii. Unintended Gaming
Schuster argues the coinless practice is "immoral,
unethical, oppressive, or unscrupulous" because it "was designed
to encourage undesirable slot play."14 He maintains that the
14Schuster has waived his argument that the coinless practice violates Massachusetts General Laws Chapter 23K, § 1(8), which provides that "gaming licensees shall demonstrate their commitment to efforts to combat compulsive gambling . . . and shall recognize that the privilege of licensure bears a responsibility to identify, address and minimize any potential negative consequences of their business operations." Wynn is correct that this argument, specifically the reliance on Massachusetts General Laws Chapter 23K, § 1(8), was not properly raised before the district court. In general, an argument is only preserved for appellate review if the party raised it squarely before the trial court. See Johnson v. Johnson, 23 F.4th 136, 143 (1st Cir. 2022). Schuster argued below that Wynn was wrongly retaining funds and failing to fully redeem TITO tickets in violation of Massachusetts General Laws Chapter 23K, § 53, and Encore's internal controls. He never raised the contention that the practice was unfair because Wynn was not fulfilling its responsibility as a licensee under Massachusetts General Laws Chapter 23K, § 1(8), or other laws on
- 19 - practice allows Wynn to "keep money that the player" otherwise
would have pocketed. He argues that the coinless practice
influenced patrons "to take an action that was disadvantageous":
because patrons could not easily redeem the entirety of their
tickets at the TRUs, they discarded the tickets or used them in
slot machines.
"The[] traditional formulations of the [unfairness]
standard for 93A liability are notably imprecise." Com. Union
Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st Cir.
2000). The SJC has explained that in evaluating conduct the focus
should be "on the nature of challenged conduct and on the purpose
and effect of that conduct as the crucial factors in making a . . .
93A fairness determination." Id. (quoting Mass. Employers Ins.
Exch. v. Propac–Mass, Inc., 648 N.E.2d 435, 438 (Mass. 1995)).
Additionally, we "evaluate the equities between the parties," the
"plaintiff's conduct," and "[w]hat a defendant knew or
[reasonably] should have known." Incase Inc., 488 F.3d at 57
(quoting Swanson v. Bankers Life Co., 450 N.E.2d 577, 580 (Mass.
1983)).
We read Schuster's argument as taking issue with the
adequacy of the notice patrons received that the TRUs were coinless
responsible gaming. Schuster has also waived the argument that we should review this unpreserved argument for plain error. See Benjamin-Hernandez, 49 F.4th at 584-85.
- 20 - and, separately, as arguing the coinless practice itself, and the
burden it imposes on patrons to retrieve their coins, is inherently
unfair. With regard to notice, he contends Wynn "g[ave] misleading
information," specifically by providing "signage on TRUs claiming
this is where to go for 'Ticket Redemption.'" We do not agree
that it is misleading to label the TRUs as "Ticket Redemption."
As we have previously discussed, it was permissible for Encore to
partially redeem a TITO ticket with a voucher.
Turning to whether the coinless practice itself is
unfair, Wynn has offered several rationales for implementing its
coinless practice centered around issues with the TRUs going out
of service and causing patron dissatisfaction. Schuster disputes
that coin jams and resulting customer dissatisfaction were the
basis of the coinless practice. He argues that beyond the
statements of Encore employees, there is nothing in the record
documenting that an excessive number of coin jams or customer
complaints occurred.
Schuster argues that this practice's effect is that Wynn
converts coins, which cannot be wagered, "into something that can
only be used to gamble at Encore," and Schuster maintains that a
"[TRU] ticket [in the amount of less than one dollar] is in an
amount less than a slot machine's minimum wager," such that a
patron would need to spend more money to continue playing.
Schuster presents statistics showing that "over 70%" of customers
- 21 - used their TRU tickets to engage in further gaming. And he argues
that that further gaming was unintended or undesired. But there
is no genuine dispute that Schuster and Encore's other patrons
knew or should have known that they could redeem their TRU tickets
for their full value, rather than continue gaming.
While we recognize that Schuster has pointed out several
issues with the coinless practice, we agree with the district court
"that the record provides no basis to permit [him] to prevail on
this argument." Schuster, 2023 WL 2248886, at *7. He has not
demonstrated how requiring patrons to go to a cashier cage to
redeem coins is unfair under Chapter 93A. While it may be
inconvenient to take this additional step, the record does not
show that the practice of requiring customers to walk to a cashier
cage and potentially wait in line is immoral, unethical,
oppressive, or unscrupulous. See Ocasio-Hernández v.
Fortuño-Burset, 777 F.3d 1, 4-5 (1st Cir. 2015) ("[I]f the summary
judgment record satisfactorily demonstrates that the plaintiff's
case is, and may be expected to remain, deficient in vital
evidentiary support, this may suffice to show that the movant has
met its initial burden." (alteration in original) (quoting Carmona
v. Toledo, 215 F.3d 124, 133 (1st Cir. 2000))). Thus, Schuster
has not demonstrated that the coinless practice is unfair under
Chapter 93A.
- 22 - b. Alleged Deceptive Practice
We turn to Schuster's contention that the coinless
practice is deceptive. Under Chapter 93A, a "practice is deceptive
'if it possesses a tendency to deceive' and 'if it could reasonably
be found to have caused a person to act differently from the way
[they] otherwise would have acted.'" Walsh, 821 F.3d at 160
(quoting Aspinall v. Philip Morris Cos., Inc., 813 N.E.2d 476,
486-87 (Mass. 2004)). However, conduct does not amount to a
deceptive act under Chapter 93A "by virtue of the mere fact that
the conduct affects a person's actions in a way that eventually
causes that person harm." Baker v. Goldman, Sachs & Co., 771 F.3d
37, 54 (1st Cir. 2014). "In determining whether an act or practice
is deceptive, 'regard must be had, not to fine spun distinctions
and arguments that may be made in excuse, but to the effect which
[the act or practice] might reasonably be expected to have upon
the general public.'" Aspinall, 813 N.E.2d at 487 (quoting Leardi
v. Brown, 474 N.E.2d 1094, 1099 (Mass. 1985)). An actionable
deceptive act could include an affirmative misrepresentation or an
omission. Tomasella, 962 F.3d at 72. An omission is a "failure
to 'disclose to another a fact that [one] knows may justifiably
induce the other to act or refrain from acting in a business
transaction . . . [if one] is under a duty to the other to exercise
reasonable care to disclose the matter in question.'" Id. at 71-72
- 23 - (alteration in original) (quoting Underwood v. Risman, 605 N.E.2d
832, 836 (Mass. 1993)).
Schuster argues that the coinless practice is deceptive
because Wynn failed to provide notice to patrons that the TRUs
were coinless. Schuster also argues that, as a result of that
omission, patrons did not receive the full value of TITO tickets.
Schuster points out that for the first several days of the practice
there was no notice to patrons that the TRUs no longer dispensed
coins and argues Wynn's use of "makeshift signage" did not remedy
the issue. He also notes that, even after the MGC's recommendation
to do so, Wynn did not post signs on the slot machines that the
TRUs were coinless; the patrons, therefore, did not have notice of
the coinless practice before they began gaming. Finally, he takes
issue with Encore labeling the TRUs as a means of "ticket
redemption" and asserts that the label is deceptive because the
TRUs only partially redeem a TITO ticket and Encore does not notify
the patrons of this practice.
In response, Wynn argues that it gave patrons notice of
the coinless practice with signage and display screen messages on
the TRUs. Wynn also points out that even after Schuster knew of
the coinless practice and how to redeem his TRU ticket to receive
coins, Schuster never attempted to redeem his tickets at the
cashier cage.
- 24 - Even on our de novo review, we agree with the district
court that this claim cannot survive summary judgment. Schuster's
argument relies on his understanding that redemption of a TITO
ticket can only lawfully be done through the distribution of the
cash and coins that reflects the full value of the inserted ticket.
But as we discussed previously, a TRU can redeem a TITO ticket
with the "appropriate amount of funds" by dispensing dollars and
a TRU ticket that can be redeemed in lieu of coins. Thus, labeling
a coinless TRU as a means of "ticket redemption" is not inherently
deceptive.
3. Schuster's Common Law Claims15
On his breach of contract and promissory estoppel
claims, Schuster first argues that Encore's internal controls
amount to "a contractual obligation or promise to dispense coins."
He also claims that the "historical practices" of slot machines
create an implied contract. Under Massachusetts law, a breach of
contract claim requires the plaintiff to prove that "a valid,
binding contract existed, the defendant breached the terms of the
contract, and [the plaintiff] sustained damages as a result."
Gattineri v. Wynn MA, LLC, 63 F.4th 71, 85 (1st Cir. 2023) (quoting
15Schuster also argues that his common law claims of breach of contract, promissory estoppel, and conversion all survive because they are "derivative[s] of the Chapter 93A cause of action." As noted above, Schuster's Chapter 93A claim fails, and thus his derivative argument is unsuccessful.
- 25 - Brooks v. AIG SunAmerica Life Assurance Co., 480 F.3d 579, 586
(1st Cir. 2007)), certified question answered, 221 N.E.3d 742
(Mass. 2023). One element of a successful promissory estoppel
claim is that the "promisor [made] a promise which he should
reasonably expect to induce action or forbearance of a definite
and substantial character on the part of the promisee." Neuhoff
v. Marvin Lumber & Cedar Co., 370 F.3d 197, 203 (1st Cir. 2004)
The district court rejected Schuster's argument that, in
labeling the TRUs as a place where a patron could redeem their
slot tickets, Wynn promised patrons that using the TRU would allow
the patron to receive the entire cash value of the ticket from the
TRU. Schuster, 2023 WL 2248886, at *9. The district court
reasoned that the breach of contract and promissory estoppel claims
failed because "[w]hile [Schuster] might view [the coinless
practice] as overly burdensome, there is no evidence that [Wynn]
promised a more efficient process." Id. We agree. Schuster
cannot successfully demonstrate that a reasonable jury could
conclude that Wynn made a contract or promise that Schuster could
rely on to establish a breach of contract or promissory estoppel
claim. See Burt v. Bd. of Trs. of Univ. of R.I., 84 F.4th 42, 59
(1st Cir. 2023) ("Even though the nonmovant enjoys a favorable
presumption for the evidence it adduces, it still must point to
- 26 - evidence that a reasonable factfinder could employ to its
behoof."). As a result, these claims fail.
Lastly, on his conversion claim, Schuster argues that
Wynn's actions amount to conversion because the TRUs failed to
dispense coins and Wynn allegedly "retained the coins rather than
paying them out." A successful conversion claim under
Massachusetts law requires, among other things, a showing that the
"defendant . . . intentionally and wrongfully exercised control or
dominion over another's personal property." Foss v. Marvic Inc.,
994 F.3d 57, 65 (1st Cir. 2021). The district court correctly
concluded that the undisputed facts showed that, when redeeming
TITO tickets at a TRU, a patron would receive "cash up to the
nearest whole-dollar value of the [TITO] ticket" and a TRU ticket
for the "value of the [remainder of the TITO] ticket, which was
less than $1." Schuster, 2023 WL 2248886, at *9. The court
reasoned that because the TRU ticket "could be redeemed at a
cashier window or be used to continue playing on a slot machine[,
the practice of dispensing a TRU ticket could not] be reasonably
construed as a refusal to pay [Schuster] what he was owed." Id.
We agree. Schuster had the ability to redeem the TRU ticket for
coins or use the ticket in further gambling, which he did on at
least one occasion. While Schuster had to engage in an extra step
to access his coins, a reasonable jury could not find that Wynn
exercised control or dominion of Schuster's funds.
- 27 - IV. Conclusion
For the reasons above, we affirm the district court's
decision dismissing Schuster's unjust enrichment claim and
granting summary judgment in favor of Wynn on Schuster's remaining
claims.
- 28 -