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                                Appellate Court                        Date: 2019.03.28
                                                                       09:50:09 -05'00'




                  Dew-Becker v. Wu, 2018 IL App (1st) 171675



Appellate Court    COLIN DEW-BECKER, Plaintiff-Appellant, v. ANDREW WU,
Caption            Defendant-Appellee.



District & No.     First District, Sixth Division
                   Docket No. 1-17-1675



Filed              December 14, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 16-M1-011598;
Review             the Hon. Leon Wool, Judge, presiding.



Judgment           Affirmed.


Counsel on         Burton N. Ring and Stuart M. Clarke, of Burton N. Ring, P.C., of
Appeal             Chicago, for appellant.

                   No brief filed for appellee.



Panel              JUSTICE CONNORS delivered the judgment of the court, with
                   opinion.
                   Justices Cunningham and Harris concurred in the judgment and
                   opinion.
                                                OPINION

¶1       Plaintiff, Colin Dew-Becker, appeals the trial court’s decision in favor of defendant,
     Andrew Wu, after a bench trial. Plaintiff argues that in reaching its decision, the trial court
     erroneously interpreted section 28-8 of the Criminal Code of 2012 (hereinafter the Illinois Loss
     Recovery Act1 or Act) (720 ILCS 5/28-8 (West 2014)), which provides a cause of action for
     damages to the loser of certain illegal bets against the winner of the bets. The trial court
     determined that this section of the Act does not allow recovery when the gambling is
     conducted through a third-party website, such as FanDuel, rather than a wager directly
     between one person and another. We agree with the trial court’s interpretation of the Act and
     affirm its decision.

¶2                                          BACKGROUND
¶3       This case stems from a bet placed between plaintiff and defendant through the fantasy
     sports website FanDuel. On April 4, 2016, plaintiff brought a small claims action against
     defendant after plaintiff lost $100 as a result of a wager with defendant that was placed three
     days earlier on April 1, 2016. Plaintiff’s complaint alleged that he and defendant engaged in a
     head-to-head daily fantasy sports (DFS) contest through FanDuel’s website, with plaintiff and
     defendant each wagering $100 on the outcome of their contest for the opportunity to win $100
     from the other. Plaintiff further alleged that the wager was an act of gambling and that he and
     defendant each paid $109 to FanDuel, for a total of $218. FanDuel received $18 as a fee and
     the total prize for the DFS contest was $200. Plaintiff and defendant selected their DFS roster
     by each choosing nine National Basketball Association (NBA) players. At the conclusion of
     the contest, plaintiff, who played under the name “dewbeckc,” scored 96.3 points, and
     defendant, who played under the name “questionablylegal,” scored 221.1. Six of the nine
     players selected by plaintiff scored a “0” for that day’s contest. As a result of scoring the
     highest total points, defendant won the $200 prize. Plaintiff’s complaint sought relief pursuant
     to the Illinois Loss Recovery Act, which allows “[a]ny person who by gambling shall lose to
     any other person, any sum of money or thing of value, amounting to the sum of $50 or more” to
     “sue for and recover the money or other thing of value *** in a civil action against the winner
     thereof, with costs, in the circuit court.” Id. § 28-8(a).
¶4       On May 4, 2016, the matter proceeded to trial, where judgment was entered in favor of
     defendant. Plaintiff appealed. On appeal, we reversed and remanded for a new trial, finding
     that plaintiff was never provided an opportunity to be heard because he was “not afforded the
     chance to present testimony or argument.” Dew-Becker v. Wu, 2017 IL App (1st) 161383-U,
     ¶ 14.


         1
          We note that section 28-8 of the Criminal Code of 2012 does not carry a short title. Additionally,
     no Illinois state court case has ever referred to this section as the “Illinois Loss Recovery Act.”
     However, we opt to refer to this section as the “Illinois Loss Recovery Act” to remain consistent with
     the federal cases that have examined this statute. See, e.g., Sonnenberg v. Amaya Group Holdings
     (IOM) Ltd., 810 F.3d 509, 510 (7th Cir. 2016); Phillips v. Double Down Interactive LLC, 173 F. Supp.
     3d 731, 737 (N.D. Ill. 2016); Langone v. Kaiser, No. 12 C 2073, 2013 WL 5567587, at *3 (N.D. Ill.
     Oct. 9, 2013).

                                                    -2-
¶5          On June 26, 2017, after remand, this matter proceeded to trial, at which both sides were
       able to present testimony and evidence. Plaintiff was represented by counsel and defendant
       proceeded pro se. A transcript of the trial is included in the record on appeal.
¶6          Plaintiff testified that on April 1, 2016, he entered a head-to-head DFS contest with
       defendant. Plaintiff testified that he chose the NBA players for his team “hoping that they
       would score the most possible points for my team.” Plaintiff stated that he did not win the
       contest with defendant because his team scored 96.3 points and defendant’s team scored 221.1
       points. Plaintiff had wagered $100, with the hope of winning $200. Plaintiff noted that
       FanDuel collected a $9 fee from each player. Additionally, plaintiff testified that there were
       elements of the game that were completely out of one’s control, such as player injury or
       weather, and analogized a DFS contest to betting on a horse in a horse race.
¶7          On cross-examination, when plaintiff was asked whether he considered FanDuel a contest
       of skill, he responded, “I certainly think there’s skill involved. I think both skill and luck are
       components of this for sure.”
¶8          Defendant testified that although plaintiff sued him directly in this case, FanDuel was
       actually the mediator of their wager, and thus it was impossible to truly participate in a
       head-to-head wager. Defendant stated that because two strangers could wager with one another
       through FanDuel, he did not believe the Act applied. Defendant testified that the contest at
       issue was “not an illegal gambling situation” and that the Act was not meant to apply.
¶9          In closing arguments, counsel for plaintiff asserted that he had established that the contest
       at issue was a wager within the meaning of the Act because there was no exemption for DFS or
       fantasy sports of any kind. Counsel concluded by stating, “This is the age of the Internet. If the
       legislature had intended to draft carve-outs, they could have done so at any time, particularly
       given how recently the Criminal Code has been amended.” In his closing, defendant argued
       that the idea that one can be sued for using a website that millions of people use “appears to be
       an overreach of the intention of this law.” Defendant stated that to find that each wager on a
       site like FanDuel is an illegal wager that can be brought to court is “too broad an
       interpretation” that would cause a lot of problems.
¶ 10        After trial, the court below found in favor of defendant and delivered the following ruling:
                    “Plaintiff brings a civil action against the [d]efendant under 720 ILCS 5/28-8[.]
                [U]nder section 28-8(a), ‘A person who by gambling loses any sum of money totaling
                $50 or more to any other person may initiate a civil action to recover damages from the
                winner.’
                    The plain meaning of the [s]tatute does not allow recovery when the gambling is
                not connected—conducted between one person and another person, in this case,
                because of FanDuel[.] [T]herefore it’s the opinion of the [c]ourt the verdict will be in
                favor of the [d]efendant.”
¶ 11        Also on June 26, 2017, plaintiff filed his notice of appeal. On November 13, 2017, plaintiff
       filed a motion with this court requesting that this appeal be deemed ready. On December 1,
       2017, after receiving no response from defendant, we ordered that this appeal proceed on
       appellant’s brief and the record only.




                                                   -3-
¶ 12                                              ANALYSIS
¶ 13       On appeal, plaintiff argues that the trial court erroneously interpreted the Act when it
       determined that FanDuel’s facilitation of the wager precluded recovery. Plaintiff contends that
       the Illinois Loss Recovery Act does not include an exclusion or limitation for cases where the
       gambling at issue is facilitated by a third party, such as FanDuel. For the reasons that follow,
       we affirm the trial court’s decision.
¶ 14       Although we typically determine whether a trial court’s decision after a bench trial was
       against the manifest weight of the evidence (Garden View, LLC v. Fletcher, 394 Ill. App. 3d
       577, 583 (2009)), we apply a de novo standard where, as here, we are faced with a question of
       statutory interpretation (Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman, 2014 IL
       116362, ¶ 20).
¶ 15       The Illinois Loss Recovery Act provides as follows:
                “Gambling losses recoverable.
                    (a) Any person who by gambling 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 thereof, with costs, in the
                circuit court. ***.
                    (b) If within 6 months, such person who under the terms of Subsection 28-8(a) is
                entitled to initiate action to recover his losses does not in fact pursue his remedy, any
                person may initiate a civil action against the winner. The court or the jury, as the case
                may be, shall determine the amount of the loss. After such determination, the court
                shall enter a judgment of triple the amount so determined.
                    (c) Gambling losses as a result of gambling conducted on a video gaming terminal
                licensed under the Video Gaming Act are not recoverable under this Section.” 720
                ILCS 5/28-8 (West 2014).
¶ 16       Here, plaintiff sued defendant pursuant to the Act. Thus, the first question that we must
       answer is whether the DFS contest in which plaintiff and defendant participated amounted to
       “gambling.” In Illinois, “[a] person commits gambling when he or she *** knowingly plays a
       game of chance or skill for money or other thing of value, unless excepted in subsection (b) of
       this Section.” Id. § 28-1(a)(1).
¶ 17       We find that the DFS contest at issue was a game of chance, a game of skill, or some
       combination thereof and that none of the exceptions enumerated in section 28-1(b) apply. See
       id. § 28-1(b). Therefore, we assume arguendo that plaintiff’s and defendant’s participation in
       the head-to-head DFS contest at issue qualified as gambling. The question next becomes
       whether the Act allows plaintiff to recover the gambling loss he incurred as a result of a DFS
       contest facilitated by a third-party website, such as FanDuel. The trial court determined that the
       Act does not apply to the instant case, and thus plaintiff cannot recover. We agree.
¶ 18       Plaintiff argues that the Act does not contain an express limitation or exclusion for cases
       where gambling is facilitated through a third-party website, such as FanDuel. “This court’s
       primary objective in interpreting a statute is to ascertain and give effect to the intent of the
       legislature. [Citation.] The most reliable indication of the legislature’s intent is the language of
       the statute, given its plain and ordinary meaning.” Goldfine, 2014 IL 116362, ¶ 21. Further, it
       is well settled that when interpreting a statute, “we will avoid a construction that would defeat

                                                     -4-
       the statute’s purpose or yield absurd or unjust results.” Bowman v. Ottney, 2015 IL 119000,
       ¶ 17.
¶ 19        The trial court determined that the Act was not intended to apply here because the
       gambling at issue was not conducted directly between one person and another person and
       instead was conducted through FanDuel, a third-party intermediary. We find support for the
       trial court’s ruling in the plain, unambiguous language of the statute. Section 28-8(a)
       references “[a]ny person who by gambling shall lose to any other person.” 720 ILCS 5/28-8(a)
       (West 2014). We find that this language requires a direct connection between the two persons
       involved in the wager. The statute specifically refers to “[a]ny person” who loses “to any other
       person.” Id. There is no indication that gambling committed between two persons through the
       use of a third-party website, such as FanDuel, was intended to be covered by the Act.
¶ 20        Additionally, allowing DFS contests on FanDuel to be covered by the Act would be
       problematic because people who do not necessarily know one another can compete
       head-to-head on the site. In this case, plaintiff and defendant presumably knew one another
       prior to entering into the DFS contest. We presume such a fact because there is no evidence in
       the record that their DFS contest was based on a random opponent assignment. Plaintiff made
       no allegation in his complaint regarding how he ascertained defendant’s identity, and there is
       no indication that plaintiff and defendant were strangers. Although plaintiff and defendant
       knew one another in this case, FanDuel does not require all contestants in head-to-head DFS
       contests to know one another. A head-to-head DFS contest can be conducted between two
       strangers. In fact, plaintiff recognized this in his complaint and alleged, “The individual who
       initiates the head-to-head contest chooses (and pays) the size of the entrance fee for the contest,
       and can then either invite a friend to enter the contest, or can allow the contest to be entered by
       any other individual on the site.”
¶ 21        In this case, plaintiff competed under the screen name “dewbeckc” and defendant
       competed under the screen name “questionablylegal.” If plaintiff and defendant did not know
       one another prior to entering the DFS contest, then it would have been difficult, if not
       impossible, for plaintiff to discern defendant’s identity beyond his screen name, which would
       have impeded the filing of an action in circuit court, i.e., the crux of recovery under the Act.
       Certainly, the loser of a wager cannot sue the winner to recover under the Act when the
       winner’s identity is known only through a screen name. As a result, we find that the Act was
       not intended to apply to gambling facilitated by a third-party website, such as FanDuel, which
       allows a person to engage in head-to-head DFS contests with a stranger. Instead, the Act was
       intended to apply to allow recovery when two people who know one another (or at least are
       familiar with one another’s identity) engage in illegal gambling.
¶ 22        Further, to construe the Act in a manner that would allow plaintiff to recover would
       frustrate the statute’s purpose and yield absurd results. Simply put, the floodgates of litigation
       would be opened to the thousands of Illinois residents who engage in DFS contests. If we
       adopted plaintiff’s interpretation of the Act, then any person who lost more than $50 on a DFS
       website such as FanDuel would be able to bring a small claims action in circuit court. It is
       absurd to believe that the Act’s drafters intended to inundate the court system with such a high
       volume of claims.
¶ 23        Plaintiff cites numerous federal court decisions as support for his contention that he should
       be allowed to recover under the Act. For example, plaintiff cites Langone, 2013 WL 5567587,
       at *6, wherein the court determined that FanDuel was not a “winner” within the meaning of the

                                                    -5-
       Illinois Loss Recovery Act and could not be sued under the Act because FanDuel “risks
       nothing when it takes entry fees from participants in its fantasy sports games.” Here, plaintiff
       has not sued FanDuel, and thus Langone is not instructive. Additionally, this case involves the
       interpretation of an Illinois statute, and federal case law is not binding. Combs v. Insurance Co.
       of Illinois, 146 Ill. App. 3d 957, 962 (1986) (recognizing that “decisions by the [f]ederal courts,
       other than the United States Supreme Court, as to the law of Illinois are not binding on state
       courts”).
¶ 24        Plaintiff has not cited, and we have not found, any Illinois case that allowed the loser of a
       DFS contest conducted through FanDuel (or a similar third-party website) to recover from the
       winner pursuant to the Illinois Loss Recovery Act. In fact, there are very few cases decided by
       Illinois courts in which the Illinois Loss Recovery Act has been examined. Since 1950, only
       two Illinois state court cases have addressed the Act. See Reuter v. MasterCard International,
       Inc., 397 Ill. App. 3d 915 (2010) (holding that plaintiff could not recover from the defendant
       credit card companies because although the plaintiff’s credit card was used to gamble on
       Internet casinos, credit card companies were not “winners” under the Act); Moushon v. AAA
       Amusement, Inc., 267 Ill. App. 3d 187 (1994) (determining that the Act’s distinction between
       different types of gambling did not violate the defendants’ equal protection rights). Neither of
       these cases addressed a factual scenario similar to the one at bar or include analysis relevant
       here.
¶ 25        We believe that the dearth of decisions within the past six decades that analyze the Act
       indicate that its relevance and applicability have dwindled since its inception in the late 1800s.
       Likely, this is due to the expansion of legalized forms of gambling and, specifically, sports
       gambling. The general expansion of legalized gambling is reflected in section 28-1(b) of the
       Criminal Code of 2012, which provides that participants in activities such as bingo, lotteries,
       raffles, pull tabs and jar games, gambling conducted on riverboats, and video gaming terminal
       games, “shall not be convicted of gambling.” 720 ILCS 5/28-1(b) (West 2014). Further
       evidence of the trend toward limiting who may recover under the Illinois Loss Recovery Act is
       included in section 28-8(c) of the Act, which was added in connection with the enactment of
       the Video Gaming Act (230 ILCS 40/1 et seq. (West 2014)), and provides, “Gambling losses
       as a result of gambling conducted on a video gaming terminal licensed under the Video
       Gaming Act are not recoverable under this Section.” 720 ILCS 5/28-8(c) (West 2014).
¶ 26        As a final matter, we note that the catalyst for the expansion of legalized sports gambling
       was the United States Supreme Court’s recent holding in Murphy v. National Collegiate
       Athletic Ass’n, 584 U.S. ___, 138 S. Ct. 1461 (2018), that a federal statute, that included a
       provision that made it illegal for any state to authorize sports gambling, violated the
       anticommandeering doctrine. However, even prior to that decision, the Seventh Circuit Court
       of Appeals specifically recognized that the Illinois Loss Recovery Act “dates from an era of
       strong opposition in Illinois to gambling” but recognized “[t]hat era has ended, and the laws
       are gradually being relaxed.” Sonnenberg v. Amaya Group Holdings (IOM) Ltd., 810 F.3d 509,
       510 (7th Cir. 2016). At this time, there are a number of bills before the Illinois legislature that
       propose the legalization and regulation of sports gambling. It is, therefore, apparent that the
       trend in Illinois is toward more relaxed gambling laws, not stricter ones. As such, we decline to
       interpret the Illinois Loss Recovery Act in a manner that would frustrate its purpose and yield
       an absurd result, and affirm the trial court’s decision in favor of defendant.



                                                    -6-
¶ 27                                        CONCLUSION
¶ 28       Based on the foregoing, we find that the trial court properly found in defendant’s favor and
       affirm its decision.

¶ 29      Affirmed.




                                                  -7-
