Under the authority of 1983 Ga. Constitution, Art. VI, Sec. VI, Para.and OCGA § 15-2-9, the United States District Court for the Northern District of Georgia has certified two questions of Georgia law in a putative class action lawsuit pending in that court. As stated in the district court’s certification order, plaintiffs are Georgia residents who unsuccessfully played the “Lucky Case Game,” which is televised as part of the NBC television program Deal or No Deal . During each broadcast of Deal or No Deal , an announcer invites home viewers to participate in the “Lucky Case Game” by selecting one of six on-screen gold briefcases as the lucky case.1 Viewers may submit their lucky case choice free via the internet, or by text messaging for a fee of $.99. Toward the end of the program, the winning briefcase is revealed. Entrants who picked the correct “lucky case” are entered into a random drawing, and the winner of that drawing receives a prize.
Plaintiffs brought this action against NBC Universal, Inc., Endemol USA, Inc., and VeriSign, Inc. the organizers and sponsors of the game, under the authority of OCGA § 13-8-3 b, which allows the loser of a gambling consideration to maintain a private, civil action to recover damages from the winner. Through that action plaintiffs sought to recover —for themselves and on behalf of a class of Georgia residents who played defendants’ games by sending a text message from a Georgia area code —the $.99 text message charge. Defendants have filed a motion to dismiss pursuant to Rule 12 b 6 of the Federal Rules of Civil Procedure, asserting that plaintiffs have failed to state a claim upon which relief may be granted. In order to determine the threshold question of whether plaintiffs have stated a claim under OCGA § 13-8-3 b, the District Court certified the following questions to this Court:1. Does OCGA § 13-8-3 b authorize the filing and maintenance of a civil suit to recover money paid out or lost on account of one’s participation in an illegal lottery2. If OCGA § 13-8-3 b authorizes a suit to recover money paid out or lost on account of an illegal lottery, may the plaintiff in such a suit recover from the lottery’s promoter or organizerFor the reasons which follow, we hold that OCGA § 13-8-3 b does not authorize plaintiffs to recover from defendants the text message charges they paid to participate in the lucky case game. Accordingly, we do not reach the second question.
