Kelly Sonnenberg v. Amaya Group Holdings (IOM) Ltd , 810 F.3d 509 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-1885, 15-1887
KELLY SONNENBERG, et al.,
Plaintiffs-Appellants,
v.
AMAYA GROUP HOLDINGS (IOM) LIMITED, formerly known as
Oldford Group, Ltd., et al.,
Defendants-Appellees.
____________________
JUDY FARHNER, et al.,
Plaintiffs-Appellants,
v.
TILTWARE, LLC, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Southern District of Illinois, Nos. 3:13-cv-00227-DRH-SCW,
3:13-cv-00344-DRH-SCW — David R. Herndon, Judge.
____________________
ARGUED NOVEMBER 2, 2015— DECIDED JANUARY 15, 2016
____________________
2 Nos. 15-1885, 15-1887
Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The four plaintiffs have filed be-
tween them two diversity suits, governed by the substantive
law of Illinois, against a variety of persons and companies
that host Internet gambling websites. They contend that the
defendants owe them the money that two of the plaintiffs
(Casey Sonnenberg and Daniel Fahrner) lost in gambling on
the defendants’ websites. The district court granted the de-
fendants’ motions to dismiss, precipitating these two ap-
peals. Although both suits are in federal court under the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), the district
judge had not yet decided whether to certify the classes
when he dismissed the complaints, and no class-action issue
is presented by the appeals.
An Illinois statute imposes criminal penalties on anyone
who “knowingly establishes, maintains, or operates an In-
ternet site that permits a person to play a game of chance or
skill for money or other thing of value by means of the In-
ternet or to make a wager upon the result of any [such]
game.” 720 ILCS 5/28-1(a)(12). It also punishes “any person
who knowingly permits any premises or property owned or
occupied by him or under his control to be used as a gam-
bling place.” § 5/28-3. Another section, called the Illinois
Loss Recovery Act, provides that “any person who by gam-
bling shall lose to any other person, any sum of money or
thing of value, amounting to the sum of $50 or more and
shall pay or deliver the same or any part thereof, may sue for
and recover the money or other thing of value, so lost and
paid or delivered, in a civil action against the winner there-
of.” § 5/28-8(a). The statute dates from an era of strong oppo-
sition in Illinois to gambling. See, e.g., Zellers v. White, 70
Nos. 15-1885, 15-1887 3
N.E. 669, 672 (Ill. 1904). That era has ended, and the laws are
gradually being relaxed. See, e.g., 720 ILCS 5/28-1(b) (listing
exceptions to the prohibition on gambling); Illinois River-
boat Gambling Act, 230 ILCS 10/1 et seq.; Illinois Video Gam-
ing Act, 230 ILCS 40/1 et seq.; cf. GAMBLEONLINE.CO, “Il-
linois Online Gambling,” www.gambleonline.co/usa/illinois/
(visited January 15, 2016).
Casey Sonnenberg and Daniel Fahrner claim that each
lost $50 or more at Internet gambling sites operated by one
or more of the defendants. But if a person entitled by § 5/28-
8(a) to sue the winner has not done so within six months of
losing, then by virtue of another section of the Loss Recovery
Act “any person may initiate a civil action against the win-
ner” to recover “triple the amount” of the gambler’s loss.
§ 5/28-8(b) (emphasis added). Though neither Kelly Sonnen-
berg nor Judy Fahrner, the other two plaintiffs (who happen
to be the mothers of Casey and Daniel), lost money—indeed
neither gambled at any of the defendants’ sites—they seek to
recover triple their sons’ losses under the “any person [may
sue the winner]” provision. The sons cannot sue because
they admit in their complaints that they failed to sue within
six months of the losses that they sustained in gambling on
the defendants’ websites. They claim to have maintained ac-
counts on the websites until 2011, the year the federal gov-
ernment shut down the sites (in April). But their lawsuits
were not filed until July and August 2012—too late. See Bart-
lett v. Slusher, 74 N.E. 370, 372 (Ill. 1905); Kizer v. Walden, 65
N.E. 116, 117–18 (Ill. 1902); Holland v. Swain, 94 Ill. 154, 157
(1879).
The mothers’ claims are timely. Their problem (which
would equally beset their sons’ suits, were those suits not
4 Nos. 15-1885, 15-1887
time-barred) is that the defendants are not the winners of
any game that any of the plaintiffs (or their sons) played.
The defendants are the gambling sites, not the persons who
won from Daniel and Casey in a game hosted by the site
(and the mothers didn’t even gamble at any of the sites). A
winner would be a person whom a player had played with
and lost to. Ranney v. Flinn, 60 Ill. App. 104, 104 (1894); cf.
Pearce v. Foote, 113 Ill. 228, 238 (1885); Reuter v. MasterCard
Int’l, Inc., 921 N.E.2d 1205, 1214–16 (Ill. App. 2010). It’s true
that the sites rake off some of the money in the pot, and it is
this that causes the plaintiffs to call the sites “winners.” But
charging a fee for engaging in gambling is not the same as
winning a gamble; a croupier who supervises a casino’s
poker game is not a gambler, let alone a winner. With some
exceptions, such as playing blackjack or slot machines, the
player in a casino (or its online equivalent) places the money
he is betting in a (figurative) pot. The host takes a share of
the pot to defray the expense of maintaining the gambling
site but has no stake in the outcome of the games played on
the site.
Faced with this barrier to their claims under the Loss Re-
covery Act, the plaintiffs ask us to read a civil cause of action
into the criminal provisions aimed at the owners and opera-
tors of illegal sites—a civil cause that would entitle the plain-
tiffs to damages measured by their losses. 720 ILCS 5/28-1,
5/28-3. This might seem a reasonable supplement to a mere
misdemeanor punishment. But among other objections to
the suggestion, only the first violation is a misdemeanor; a
second, third, etc. is a felony, §§ 5/28-1(c), 5/28-3, and so a
private right of action is not necessary to assure a reasonable
degree of compliance with the statute. See Metzger v. DaRosa,
805 N.E.2d 1165, 1171 (Ill. 2004). Such a remedy would not
Nos. 15-1885, 15-1887 5
be entirely superfluous, however. Even though the only loss
of which the plaintiffs complain is a gambling loss that they
could have recovered by suing the winner, a gambler would
be reluctant to sue the winner if it were a friendly game.
And hordes of new gamblers might be enticed to gambling
websites if gamblers couldn’t lose any money there because
the hosts of the websites would have to reimburse any losses
they incurred. (In other words, heads I (the gambler) win,
tails you (the host) lose.) The threat of having to reimburse
all these eager gamblers-turned-plaintiffs could drive the
gambling hosts out of business. But fortunately for the hosts,
Illinois courts are reluctant to imply a private right of action
in one section of a statute if other sections expressly create
such rights. See, e.g., id. at 1172. There is no reason to depart
from that approach in a case like this one where the statute
already provides adequate enforcement mechanisms.
The plaintiffs also invoke § 5/28-7, which declares gam-
bling contracts null and void. But the plaintiffs have no con-
tract with the defendants that they ask the court to void.
Creating legal remedies for gambling losses as a way to
discourage gambling seems a lost cause, since the usual
gambling “loss” is not a real loss and hence is not a real spur
to litigation unless the game is rigged. A gambler knows that
the money he puts in the pot is at risk. It is not a risk he has
to take; he takes it because he hopes to win the pot, or simp-
ly because he likes gambling or risk taking in general. If he
loses $50 he may well say to himself “I’d rather have won,
but $50 wasn’t too high a price to pay for a night of gam-
bling, and en route to losing $50 I did after all win some nice
pots and get compliments from the guys I was playing
with.”
6 Nos. 15-1885, 15-1887
The judgment dismissing the suits is
AFFIRMED.