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AMERICAN GAMING LAWYER • AUTUMN 2015 27

Misprinted Tickets Almost Always

Result in Non-Payment

Such a circumstance has played out in

many lottery jurisdictions around the

country in recent years. Lottery opera-

tors in Connecticut,

Florida,

Georgia,

Massachusetts,

New Mexico,

New

Jersey,

New York,

Rhode Island,

and

Wisconsin,

just to name a few, have all

had to address this issue. Lottery oper-

ators in these states have dealt with

litigation, media coverage, or both, in

situations where players have arrived at

their door with what they believed to be

tickets valued up to $5 million and in

each of these states the player was sent

home without a dime.

The word “misprint” pretty clearly

describes the situation in which these un-

lucky players find themselves. The ticket

appears to indicate that they have won a

significant sum of money when in fact,

in Florida most recently, their number

“1” was actually a literal unlucky “13.”

In that case, Mr. Curcio of Central

Florida purchased a $20 “Gold Rush”

scratch-off lottery ticket in May of 2007.

Consistent with the vast majority of

scratch-off style lottery games, the ticket

indicated that he must “Match any of

YOUR NUMBERS to any of the WIN-

NING NUMBERS” to win the prize

shown for that number. One of the

“YOUR NUMBERS” was a “1 – ONE,”

and it is critical to keep in mind that both

the numeral itself and the spelling, or

abbreviated spelling, of each number is

placed below both “YOUR NUMBERS”

and “WINNING NUMBERS” on every

ticket. One of the “WINNING NUM-

BERS” on the ticket also appeared to be

a “1-ONE,” with a value of $500,000, but

the caption under the number included

the letters “TH” and a partial “N,” This

would indicate that the number that

appeared to be a “1-ONE” was actually a

“13-THRTN,” which was not one of the

numbers included in “YOUR NUM-

BERS” on Mr. Curcio’s ticket. Mr. Curcio

ost people who play the lot-

tery dream of one day hit-

ting it big, making the call to

their boss that they won’t be in to-

morrow (or ever again), or buying

that fancy car they’ve always had

their eye on. For most players, that

dream never turns into a reality, and

the lucky ticket never ends up in their

hand. Imagine for a moment that you

actually had the dream come

true…only to later find out that it was

all a misunderstanding, or a “mis-

print” as the lottery industry has

come to describe the situation.

“Misprinted” Lottery Tickets

and the Disappointment of

a Non-Winning Ticket

By Dan Russell

Continued on next page

NEW DEVELOPMENTS

IN LOTTERIES

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28 AMERICAN GAMING LAWYER • AUTUMN 2015

and his family genuinely believed that they

had finally hit it big.

As such, Mr. Curcio visited the retailer

from whom he had purchased the ticket to

validate that his ticket was a winner. Con-

fusingly, he was told that he had not won

anything. He then went to the Lottery’s

headquarters in Tallahassee in an attempt

to claim his $500,000 prize. Upon arrival,

the Lottery refused to pay the prize be-

cause it was not able to validate the ticket

as a winner in its system.

Three years later, still not having

been paid a prize, Mr. Curcio sued the

Lottery, raising legal theories including

breach of contract, equitable estoppel, un-

fair and deceptive trade practices, mislead-

ing advertising, and promissory estoppel.

All such claims were anchored in the

Lottery’s refusal to pay the $500,000 prize

despite what appeared to be matching

numbers on the ticket. The relevant

Florida Statutes and Administrative Reg-

ulations provide the following:

“No prize may be paid arising from

claimed tickets that are…produced

or issued in error, unreadable…

lacking in captions that confirm and

agree with the lottery play symbols

as appropriate to the lottery game

involved…” Section 24.115(1)(c),

Florida Statutes.

“The validation number of an appar-

ent winning ticket must validate on

the Lottery’s gaming system and

must not have been previously paid.”

Rule 53ER06-4(11)(g), Florida

Administrative Code.

“The ticket must pass any additional

confidential validation tests deter-

mined necessary by the Florida Lot-

tery.” Rule 53ER06-4(11)(i), Florida

Administrative Code.

“Any ticket not meeting the criteria

set forth in paragraphs (11)(a)

through (i) above is ineligible for any

prize and shall not be paid as a win-

ning ticket. In the event a defective

ticket is purchased, the only respon-

sibility or liability of the Florida

Lottery shall be the replacement of

the defective ticket with an unplayed

ticket or tickets of equivalent sales

price from a current Florida Lottery

game, or refund the retail sales

price.” Rule 53ER06-4(11)(j),

Florida Administrative Code.

The trial court granted judgment on

the pleadings in favor of the Lottery on the

equitable estoppel claim and granted sum-

mary judgment in favor of the Lottery on

all of the other claims. In affirming the

trial court’s position, the First District

stated that “…on the merits, the trial

court correctly noted that because ‘the

numbers didn’t match…[and the Lottery]

did not fail to deliver on that promise [to

pay a prize] as a matter of law.’”

A Rare Exception to the

Non-Payment Rule

In January of 2009 a lottery player in

Canada looked to meet a similar, unpaid,

fate as Mr. Curcio from Florida. Thomas

Noftall purchased several “Fruit Smash”

scratch-off tickets from a retailer in

Ontario and believed that he had won a

total of $135,000 from four apparent

winning tickets. Upon his arrival at the

Ontario Lottery and Gaming Corporation

(“OLG”), however, Mr. Noftall was noti-

fied that his tickets were actually non-

winners and that there were in fact as

many as 1,100 misprinted “Fruit Smash”

tickets that were part of a recall. Within a

few days, more than a dozen people had

come forward with misprinted “Fruit

Smash” tickets claiming to be winners,

none of them were paid either.

Mr. Noftall’s story differs from that

of Mr. Curcio and the other players in

Ontario in that, before arriving at the OLG

he called in and asked if there would be a

payment made if there was an error on the

tickets, he was clearly and told there would

be. OLG acknowledged in a release to the

media that this “was an erroneous state-

ment.”

That phone call, and the “erro-

neous statement” made during the course

of it, when combined with being told that

he would not be paid by the OLG once he

arrived at its headquarters, led Mr. Noftall

to immediately hire an attorney and take

his story to every media outlet he could

find.

Ontario’s rules relating to payment

of misprinted tickets is essentially the

same as all other lottery jurisdictions:

The Corporation will not award a

prize for tickets which are void

unless the Corporation, in its discre-

tion, deems it appropriate to do so.

Tickets are void if lost, stolen, unis-

sued, illegible, mutilated, damaged,

altered, counterfeited or forged,

miscut, misregistered, defective,

misprinted, cancelled, produced in

error and not recorded in the on-line

system, incomplete, not paid for,

destroyed or issued, acquired or

presented, in, or upon, violation of

the Act, the Regulations, these Rules,

or the Game Conditions. Void tick-

ets are the property of the Corpora-

tion. Section 5.16, Rules Respecting

Lottery Games, Ontario Lottery and

Gaming Corporation.

Continued from previous page

Billions of scratch-off

lottery tickets are printed

every year and, even

with the most elaborate

systems available,

errors will occasionally

occur. It is critical for the

lottery industry, including

government operators,

vendors and retailers,

to continue to work

diligently to minimize

such issues and also

to quickly address these

situations when they

inevitably arise.

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AMERICAN GAMING LAWYER • AUTUMN 2015 29

Based upon the clear reading on this

language, the tickets presented were “void” as they

qualified as both “misprinted” and “produced in

error.” Clearly, the OLG was not required to pay

Mr. Noftall his prize.

However, citing the “direct miscommunica-

tion” by its staff, and Mr. Noftall’s apparent abil-

ity to activate the media and public support in his

favor, the OLG actually settled with Mr. Noftall

and “made him a payment in acknowledgment of

that pain and suffering.” The amount of the set-

tlement was not made public and given the

opportunity to discuss it, Mr. Noftall’s attorney

simply stated “[h]e’s accepted the gracious apolo-

gies by OLG and is sufficiently happy with the

result and he will continue to play OLG lotto tick-

ets.” He certainly wasn’t paid the full value of the

tickets, but the lottery acted quickly to quiet an

angry player who had made the media well aware

of his situation.

Advice for Lotteries and Caution

to Lawyers

Billions of scratch-off lottery tickets are printed

every year and, even with the most elaborate

systems available, errors will occasionally occur.

It is critical for the lottery industry, including gov-

ernment operators, vendors and retailers, to con-

tinue to work diligently to minimize such issues

and also to quickly address these situations when

they inevitably arise. Lottery players seem willing

to accept the one-in-a-billion nature of ticket mis-

prints and have continued to purchase tickets at a

growing rate. However, if misprints begin to

occur at a more regular rate, the integrity of the

scratch-off lottery ticket could be jeopardized.

For lawyers representing clients with mis-

printed tickets, the first thing to realize is that

the likelihood of a client being paid full value

for his or her “winning” ticket hovers at or

around zero percent. Lawyers in this situation

have multiple issues working against their

client, including the fact that trial and appellate

courts have consistently rejected breach of con-

tract claims by players over misprinted lottery

tickets. In addition, lotteries have language for

all of their games that deem misprinted or

erroneous tickets as void, entitling a client only

to a refund of the price paid for the ticket or the

issuance of a new ticket. It may be a best-prac-

tice to follow Mr. Noftall’s lead and work with

the media in the hope of settling the matter

without resorting to litigation.

♣

Dan Russell

Dan Russell is special counsel in

Jones Walker LLP and his

practice focuses on civil and

administrative litigation, gaming,

and governmental law. He most

recently served as General Counsel

of the Florida Lottery where he

managed the legal affairs of the

Lottery’s $5.5 billion operations.

In addition to handling procure-

ments, bid protests, state and

federal litigation, and other

legal matters for the Lottery,

Mr. Russell spearheaded the

creation of Florida’s Lottery

Retailer Integrity Program.

Lottery players seem

willing to accept the

one-in-a-billion nature

of ticket misprints and have

continued to purchase tickets

at a growing rate. However,

if misprints begin to occur

at a more regular rate,

the integrity of the

scratch-off lottery ticket

could be jeopardized.

Plourde v. Conn. Lottery Corp., 2000 WL 1918014 (Conn. Super. Ct. Dec. 18, 2000) (granting summary judgment in favor of

state lottery agency on breach of contract claim because state law prohibited payment on tickets printed in error and the ticket

at issue contained game symbols 6 and 9 that resembled the winning number 8 but the captions below such symbols read “six”

or “nine”).

Curcio v. Dep’t of the Lottery, Case No. 1D14-2324 (Fla. 1

DCA 2015), Opinion filed May 27, 2015.

Ga. Lottery Corp. v. Sumner, 529 S.E.2d 925 (Ga. Ct. App. 2000) (holding that state lottery agency did not breach contract in

determining that scratch-off ticket was not a winner because the mark on the ticket that resembled the winning symbol re-

sulted from a printing error).

Ruggiero v. State Lottery Comm’n, 489 N.E. 2d 1022 (Mass Ct. App. 1986) (reversing decision in favor of plaintiff who claimed

to have won a $100,000 prize on scratch-off lottery ticket because evidence showed that the ticket had been misprinted and

could not be validated as a winner as required by applicable statutes and rules).

“Roswell man told $500k winning lottery ticket a ‘misprint.’” KOB Eyewitness News, January 2, 2015.

“A ‘C’ or an ‘O?’ Lottery Ticket Dispute Costs Woman $50,000.” NBC News – Philadelphia, February 5, 2015.

Consola v. New York, 84 A.D. 3d 1557 (N.Y. App. Div. 2011) (affirming summary judgment in favor of state lottery agency that

refused to pay a $5 million prize because the disputed ticket contained an illegible play symbol caption resulting from a mis-

print that made it appear that one of the numbers was a 6 when it was actually a 26).

Valente v. Rhode Island Lottery Comm’n, 544 A.2d 586 (R.I. 1988).

“Man Fights Wisconsin Lottery over misprinted tickets.” Tribune Wire Reports, July 29, 2014.

“OLG worker’s mistake leads to payout to man with misprinted lottery tickets.” CBC News – Toronto, January 7, 2009.

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