concept"). The parties have not cited, and this court has not found, any New Jersey state court decision construing the 1978 statutory definition of "something of value." That the statutory definition is not entirely free of ambiguity only further complicates the task of interpretation. See id. (recognizing ambiguity in current definition).
The New Jersey Attorney General has opined, however, that the current statutory definition of "something of value" seems to encompass money or property, or tangibles or intangibles, including personal services, standing in their stead. Id. This opinion went on to state that the phrasing of the statute indicates that the "legislative intent was to exclude from the statutory elements comprising the gambling offense the sort of personal inconvenience which will constitute consideration sufficient to support a contract." Id. Cf. Lucky Calendar v. Cohen, 19 N.J. 399, 117 A.2d 487 (N.J. 1955) (finding consideration not necessary element of "lottery" as defined by then-existing statute. Alternatively, if consideration were necessary element, consideration present where participant filled in and delivered entry coupon).
For purposes of its motion, MTVN concedes that its Sweepstakes was a game of chance in which the winners were entitled to prizes. It maintains, however, that because the participants in the Sweepstakes were not required to give "something of value" (i.e., price) to enter, the Sweepstakes was neither an illegal gambling scheme nor a lottery.
The Sweepstakes' official rules did not require that participants risk "something of value" because alternative cost-free means of entry were reasonably available. One or both of the cost-free methods of entry were publicized in the promotional spots aired several times a day over MTVN channels, in the advertisements MTVN took out in national magazines, through coverage of the Sweepstakes in newspapers and magazines, and on the free entry blanks distributed through Camelot Music stores and at promotional events.
Further, the official rules explicitly stated that no purchase was necessary to enter and that all those who entered had an equal chance of winning. Supplemental Affidavit of Leslye Schaefer dated 12/20/90. Finally, as many as 166,600 people entered the contest through the "800" number or by entry blank.
Glick argues that while MTVN may technically have provided alternative means of entering the Sweepstakes, it carefully crafted its promotion so that most entries would come through the "900" number. That approximately 87 per cent of the participants utilized the "900" number, Glick maintains, evidences the success of MTVN's promotional slant. Glick further states that, in late September, 1989, he mailed separate requests for a copy of the rules and for the toll-free "800" number. His request for the toll free number was never honored, and he received a copy of the rules only after the contest was over. Affidavit of Barry Glick dated 1/14/91. From these facts, Glick concludes that the "alternate means of entry, while facially supporting an argument that the contest was 'free' did, in fact, either require a participant to give something of value or subjected the participant utilizing the alternate means with a disadvantaged opportunity to win." Plaintiff's Brief at 18 (emphasis in original).
The record does not support Glick's contentions. Participants had two months in which to enter the Sweepstakes. Thus, the only people conceivably disadvantaged by utilizing either the "800" number or the mail-in entry forms were those who, having heard about the Sweepstakes in its last days, were not able to meet the October 3 deadline for requesting the "800" number or not able to mail in their entry blank by October 11. In an extensively publicized sweepstakes lasting two months, such a class of people simply are statistically insignificant. More importantly, as all those who entered had an equal chance of winning, there was no risk that certain entrants would secure a more favorable position than others. See New Jersey Att'y General Formal Opinion No. 6-1983 (because casino promotion was open to all there was no risk that certain paying participants would secure more favorable position). In sum, Glick has failed to establish the "something of value," or price, element necessary to his gambling claim.
In sum, I do not believe that a $ 2.00 charge for using a "900" number to phone in an entry to a sweepstakes, when cost-free means of entering are also available, is the type of activity that the State of New Jersey currently proscribes under its gambling laws. While certainly not determinative, that the State chose not to prosecute Viacom or MTVN supports this belief.
For the foregoing reasons, MTVN's motion for summary judgment dismissing the complaint is granted, and Glick's cross-motion for partial summary judgment is denied.
DATED: New York, New York
May 4, 1992
KEVIN THOMAS DUFFY, U.S.D.J.