It was a third strike for attorney Barry Williams in his attempt to bring a class action lawsuit against sweepstakes gaming company VGW in a Georgia court.
Earlier this month, the Northern Georgia District Court dismissed Destiny Kennedy’s lawsuit against VGW and did not offer an opportunity to amend her complaint.
Kennedy originally filed her lawsuit in a state court, alleging that VGW was operating an illegal online gambling business in violation of the law. She also said she specifically opted out of the binding arbitration element of the terms and conditions that has bounced many other sweepstakes lawsuits out of court.
VGW countered by noting that, though Kennedy opted out the first time, she did not opt out when terms and conditions were updated a few weeks later.
Court concluded it lacked jurisdiction in the case
VGW also argued that the Georgia court did not have jurisdiction to hear the case.
Judge Thomas Thrash agreed with VGW on that point, which was the primary argument he put forth in his dismissal. In determining jurisdiction, judges need to weigh both where the company is located and whether enough of the company’s operations take place in a state that it effectively may as well be in that state.
“The Plaintiff does not identify any actions taken by VGW Group that were expressly aimed at Georgia. VGW Group does not purposefully target or direct any marketing or other business activities specifically toward Georgia residents,” the judge noted.
Thrash also disagreed with the plaintiff’s assertation that opting out of arbitration also included opting out of jurisdictional preference. The VGW terms and conditions specify all court cases must take place in either Delaware federal court or Malta.
Thrash noted that the two are not related, for good reason.
“Nothing in the arbitration opt-out provision states or implies that a user may opt out of the mandatory forum selection clauses. Nor would that make any sense,” he reasoned. “By definition, the forum selection clauses—which appear in an entirely different article of the Terms (§ 24)—only apply where a user has opted out of arbitration or where the dispute is otherwise not arbitrable.”
Thrash has ruled in favor of VGW twice before
This is not the first time Thrash has ruled on a case attempting to sue VGW in his court over his product. In 2023, Williams brought a case with a John Doe plaintiff to Thrash’s courtroom. Thrash said the plaintiff very clearly agreed to binding arbitration in the terms and conditions and said the case needed to go to arbitration.
Williams tried again in 2024 with a lawsuit filed by the group Fair Gaming Advocates Georgia Inc. According to its website, Fair Gaming Advocates is a group with a mission to pursue VGW and other sweepstakes companies via class action lawsuits seeking damages and renumeration.
Thrash was in charge of this case as well and large swaths of his opinion in this case bled over into Kennedy’s, including the part about lacking jurisdiction to move forward, which resulted in its dismissal.
In the Doe case, Thrash offered the opportunity to amend the complaint. After the third case on the subject, he did not afford the same option to Kennedy.
