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May 4, 1992

BARRY GLICK, Plaintiff, against MTV NETWORKS, a Division of Viacom International Inc., Defendant.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 Plaintiff Barry Glick commenced this civil action against defendant MTV Networks ("MTVN") to recover damages for violations of New Jersey's gambling laws. *fn1" The complaint was originally filed in the Superior Court of New Jersey on May 7, 1990. On June 4, 1990, the matter was removed on the basis of diversity jurisdiction to the United States District Court for the District of New Jersey. MTVN moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), *fn2" or, in the alternative, to transfer the action to the Southern District of New York, pursuant to 28 U.S.C. 1404(a). Glick cross-moved for partial summary judgment and opposed the transfer. By opinion filed February 25, 1991, the action was transferred to the Southern District of New York. *fn3"

 The facts are not in dispute. MTVN is a division of Viacom International Inc., a corporation engaged in various entertainment and communications businesses. MTVN offers several different programming networks, or channels. From August 12 through October 11, 1989, one of those channels, known as VH-1, sponsored a national promotional event in order to increase viewership. That event, a sweepstakes called the "VH-1 Corvette Collection" (the "Sweepstakes"), is the subject of this litigation.

 The Sweepstakes was publicized over MTVN channels, through the media and through publicity events conducted nationwide. Over 20,000 prizes, including inexpensive watches, T-shirts, hats and key chains, were awarded daily during the Sweepstakes. The grand prize was a choice of either a collection of 36 Corvette automobiles, one from each model year from 1953 to 1989, or a 1989 Corvette plus $ 200,000 in cash. There were three different ways of entering the Sweepstakes. Participants could: (1) call a "900" number, for which there was a $ 2.00 charge; *fn4" (2) request a toll-free "800" number by mail; *fn5" or, (3) complete and mail in an official entry blank. *fn6"

 Whichever way they entered, participants could enter as often as they wished, were eligible for daily prizes, and had an equal chance of winning. Over one million people entered the Sweepstakes: 136,506 by way of the mail-in entry blank, 30,094 by dialing the "800" number, and 1,065,624 by calling the "900" number. Bonus prizes were awarded daily by random selection throughout the Sweepstakes. On October 14, 1989, the grand prize winner was selected at random by an independent organization. The winner opted for the collection of 36 Corvettes.


 The entry of summary judgment is mandated where the nonmovant fails to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party cannot simply rely on its allegations. Rather, it "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting Fed. R. Civ. P. 56(e)).

 Glick alleges that the Sweepstakes was prohibited under New Jersey law. Glick argues that:

 At the heart of MTVN's gambling scheme was the otherwise innocent telephone. In the most basic terms, MTVN induced people to place their wagers by simply calling a telephone number with a "900" prefix. Callers to "900" telephone numbers . . . automatically incur a predetermined charge for the call. In this case the charge was $ 2.00. The charge then appears on the callers' monthly telephone bill as an obligation owed to the carrier that provided the number. Once collected the revenue is split between the carrier . . . and [MTVN]. MTVN essentially relied upon the telephone company to be its runner in exchange for a cut of the take.

 Plaintiff's Brief In Opposition to Defendant's Notice of Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Partial Summary Judgment ("Plaintiff's Brief") at 2-3 (footnote and citation omitted). Stripped of its veneer of respectability, Glick continues, the Sweepstakes was nothing more than a nefarious gambling scheme whereby participants were unwittingly lured, by the prospect of a big return, into placing $ 2 wagers.

 Glick argues that the Sweepstakes: (a) was an unlawful gambling scheme under the New Jersey constitution and N.J.S.A. § 2A:40-1, *fn7" and, alternatively, (b) was a lottery in violation of New Jersey law. According to Glick, New Jersey law delineates two categories of gambling activity. The New Jersey constitution sets the outer limits of conduct which is proscribed as "gambling." N.J.S.A. § 2A:40-1, a civil statute, essentially prohibits the same activity proscribed under New Jersey's constitution. N.J.S.A. 2A:40-6, see supra note 1, provides a private civil remedy for violations of the constitutional and statutory proscriptions on "gambling." Under the state constitution and, by extension, § 2A:40-1, consideration is not a requisite element of "gambling." Within this broad realm of conduct prohibited by state constitution and civil statute, Glick continues, the New Jersey legislature has delineated specific conduct which is also subject to criminal sanctions. See N.J.S.A. § 2C:37-1 through § 37-9. *fn8" From the foregoing analysis of relevant law, Glick concludes that the Sweepstakes is prohibited by the state constitution and civil statute, or that it is a "lottery" specifically prohibited by the criminal statute.

 MTVN argues, and I agree, that N.J.S.A. § 2A:40-6 is a quasi-penal statute which allows a private plaintiff to seek to impose a civil penalty upon a defendant. While the New Jersey Constitution and N.J.S.A. § 2A:40-1 both prohibit gambling generally, neither defines just what an unlawful gaming transaction, or gambling, is. Consequently, both civil provisions must be construed in conformity with the prevailing criminal gambling statutes to ascertain just what type of activity they proscribe.

 The current New Jersey criminal statutes relating to gambling offenses, N.J.S.A. § 2C:37-1 through § 37-9, were enacted in 1978. The criminal ...

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