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Smerling v. Harrah's Entertainment

December 13, 2006

DEBRA S. SMERLING, MAGDA CLAUDE, AND SHEILA SMERLING, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
HARRAH'S ENTERTAINMENT, INC., HARRAH'S OPERATING COMPANY, INC. D/B/A HARRAH'S ATLANTIC CITY, AND HARRAH'S ATLANTIC CITY, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-8733-04.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 9, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

At issue is whether plaintiffs' consumer fraud action against a licensed casino hotel alleging false and misleading promotional advertising is preempted by the Casino Control Act, N.J.S.A. 5:12-1 to -210. Stated somewhat differently, does the Casino Control Commission (CCC), by virtue of its comprehensive regulation over New Jersey's casino industry, have exclusive jurisdiction over all matters of casino advertising so as to bar a patron's statutory consumer fraud claims in this instance. We answer in the negative, reverse the trial court's Rule 4:6-2(e) dismissal, and reinstate plaintiffs' complaint.

The facts material to resolution of this issue are uncomplicated and for the most part undisputed. Plaintiffs, Debra and Sheila Smerling and Magda Claude, were patrons of an Atlantic City casino hotel owned by defendants Harrah's Entertainment, Inc., Harrah's Operating Company, Inc., and Harrah's Atlantic City, Inc. (collectively Harrah's or defendants). They allege they were induced to visit Harrah's casino by two promotional schemes run by defendants offering cash incentives that were never made available to them. One such promotion involved an advertisement titled "$15 BIRTHDAY CASH!" offering a coupon stating:

$15 BIRTHDAY CASH! Offer valid August 1 or August 10, 2003 only. Must present coupon at Total Rewards Center. Hours of operation for Total Rewards Center:

Sun - Fri: 8am - 12 Midnight Sat: 8am - 2am Valid at Harrah's Atlantic City only.

Debra Smerling Valid 08/01/03 or 08/10/03 The only requirement for receiving the cash was to "present [a] Total Rewards card and valid photo I.D. upon redemption." After receiving the solicitation in the mail, both Debra and Magda decided separately to celebrate their birthday in Atlantic City and as a result visited Harrah's Casino on Saturday, August 9, 2003. When they attempted to claim their "birthday cash" sometime between midnight and 12:30 a.m. on Sunday, August 10, 2003, at the Total Rewards Center, which remained open, the manager on duty told them they could not claim the money until 6 a.m. on August 10. Debra and Magda never redeemed their $15 coupons.

The other promotional solicitation, titled "Money Train," was received by Sheila in the mail sometime around the first week of August 2004, and redeemable August 16 or August 29, 2004. The advertisement read: "Harrah's Money Train" and "Catch a ride and win $10 to $1,000 guaranteed! August 16 or 29, 2004," and "You could win $1,000 instantly!". In a boxed-in portion of the advertisement, it stated:

This is your free ticket to ride on Harrah's Money Train[.] Come to Harrah's on August 16th or 29th between 8AM and midnight for a chance to win up to $1,000 instantly. Just present this postcard to the Total Rewards Center on one of the two dates to get your free game piece for a guaranteed cash prize!

This postcard must be presented.

According to Sheila, the "Money Train" advertisement included, among other things, material terms that were obscured because of small type and the use of color, and that were ...


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