Mr. John J. Gruttadaurio, Esq. 

1414 South Green Road, Suite 101 

South Euclid, Ohio 44 12 1 

March 2 1,200 1 

Re: Class I1 gaming machine classification 

Dear Mr. Gruttadaurio: 

In your letter of March 1,2001, you describe a gaming device now in 

development by a client and request our review and discussion. We understand that the 

development effort is intended to produce a class I1 gaming device that, at its core, 

facilitates the sale of pull-tabs but uses a computer storage medium to house the pull-tabs 

before sale. The product development would attempt to build from the recent decision of 

the United States Court of Appeals for the District of Columbia Circuit in Diamond 

Game Enterprises v. Reno, 230 F.3d 365, which found a gaming device known as Lucky 

Tab I1 to be class 11, as that term is defined in the Indian Gaming Regulatory Act. 

" Ilw As you recognize, we are not in a position to offer an advisory opinion on the 

game until we could examine, at a minimum, a detailed description of the game, its rules 

of play, and a prototype. We also may need to analyze software code. As you may also 

know, the Commission has under consideration a proposed rule that would formalize its 

game classification process. Please understand that it is not the Commission's policy to 

assist directly in product development. Any observations offered in response to your 

letter should not be taken in any way as suggesting that the Chairman or the Commission 

would classify a game in a particular way under the process set forth in the draft 

regulation or that an advisory opinion from the Commission's general counsel would 

consider the game in a particular manner after evaluation of a prototype under the current 

classification process. With these caveats, I respond to your letter and offer some 

observations about the issues you raise. 

We read the Diamond Game opinion as standing for the proposition that a device 

may be considered lawful and permissible in the play of a class I1 game when the device 

by electronic means reads the contents of a paper pull-tab and then displays on a video 

monitor the contents of that pull-tab as that pull-tab is dispensed to a player. In that 

sense, the device can serve as a technological aid to the play of the paper pull-tab game. 

In the Lucky Tab I1 game, a player could obtain the pull-tabs from a clerk and not 

use the device or the player could obtain the pull-tab from the device without regard to 

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John J. Gmttadaurio, Esq. 

March 20,2001 

Page 2 

girl" ' 

the electronic display. The court concluded, essentially, that the player was playing the 

paper pull-tab game. It is far from certain that same conclusion could be reached in your 

game. As we understand your client's product design, a distinguishing feature compared 

to the Lucky Tab I1 machine at issue in Diamond Game is that the paper pull-tabs are not 

otherwise available until the player engages the machine and the player must always 

engage the machine. As such, game play may not be "readily distinguishable from the 

play of a game of chance on an electronic.. .facsimile," to quote from the Commission's 

definition of technological aid at 25 C.F.R. 5 502.7. 

The timing of the printing and the display of a pull-tab could present another 

issue. If the display in your machine is that of an electronic facsimile of a pull-tab from 

the computer storage file and not a display derived from an actual paper pull-tab, then the 

game appears closer to the device at issue in Sycuan Band v. Roache, 54 F. 3d 535 (9th 

Circuit, 1994), which was found to be class 111. An optional feature of producing a paper 

pull tab after the video display-and we assume the player would do so only if the player 

had located a winning combination in the deal and needed a ticket to claim a prizewould not seem to bring the new device within the parameters of the Diamond Game 

decision. The Court also noted that, unlike the machine in Cabazon Band v. NIGC, 14 F. 

3d 633 (D.C. Cir. 1994), the Lucky Tab I1 did not contain an "internal computer that 

generates the game." There is a question on whether your client's new gaming device 

contains such an "internal computer." 

IMMV We understand from your letter that the sequence of sale from among the pulltabs on the electronic cartridge would be predetermined before the cartridge was placed 

in use. The fact that the player was always going to receive the next pull-tab on the roll 

may have been an important factor to the Court in Diamond Game. 

Other salient features of the Lucky Tab 11--perhaps better phrased as missing 

features--are its inability to accumulate winning credits and its inability to pay winners. 

The paper tickets are to be redeemed by a cashier in both Lucky Tab I1 and, as we 

understand, in your client's game. We have not considered how changing these features 

would impact on a game classification or how the Court in Diamond Game might have 

viewed these features. 

Thanks for sharing some of your proposed game features with us. While we 

cannot offer a classification at this time, it is always interesting for us to hear what the 

industry has in mind. 

Sincerely yours, / 

William F. Grant 

Senior Attorney