Civil action commenced in the Superior
Court Department on July 29, 2019.
A motion to dismiss was heard by John S.
The Supreme Judicial Court granted an
application for direct appellate review.
Certification of a question of law to the
Supreme Judicial Court by the United States District Court for the District of
Joshua N. Garick for A. Richard Schuster
Wayne F. Dennison for the defendants.
Jeffrey S. Morneau, for Ted DeCosmo, was
present but did not argue.
Matt Cameron, for Stop Predatory Gambling
Foundation, amicus curiae, submitted a brief.
David S. Mackey & Melissa C. Allison,
Special Assistant Attorneys General, for Massachusetts Gaming Commission,
amicus curiae, submitted a brief.
According to the wise gambling proverb, "If you must play, decide
upon three things at the start: the
rules of the game, the stakes, and the quitting time." The gamblers challenging the rules of the
game and the stakes here (plaintiffs) were blackjack players at the Encore
Boston Harbor Casino, operated by Wynn Resorts Holdings, LLC, Wynn MA, LLC, and
Wynn Resorts, Ltd. (Encore); and the MGM Springfield casino, operated by Blue
Tarp Redevelopment, LLC (MGM). They
played at tables requiring smaller bets and paying out a winning
"blackjack" at six dollars for every five dollars bet (6:5), rather
than three dollars for every two dollars bet (3:2) as at the more expensive tables. The plaintiffs sat down at tables with the
basic rules and 6:5 payouts printed on the felt of the table, were dealt
blackjacks, and won.
With the advice of counsel, they now
contend that they are entitled to 3:2, not 6:5, payouts, because the Massachusetts
Gaming Commission's (commission's) blackjack rules, particularly rule 7(d), do
not clearly authorize payouts of 6:5 except with games played by dealing rules
different from those used at the plaintiffs' tables. Unfortunately, rule 7(d) is at least somewhat
ambiguous. In response to the
plaintiffs' claims, the commission has consistently interpreted rule 7(d) to
authorize the 6:5 payout option at issue.
In a case brought by A. Richard Schuster
and Robert Ranson, on behalf of themselves and all others similarly situated, a
Federal District Court judge nonetheless denied Encore's motion to dismiss and
certified a question of law to this court.
In a separate case brought by Ted DeCosmo, on behalf of himself and all
others similarly situated, a Superior Court judge agreed with the casinos and
the commission and allowed MGM's motion to dismiss. We conclude that the plaintiffs understood
the rules and the stakes, and that deference is due to the commission's interpretation. Therefore, the plaintiffs lose this last
bet. They should have quit while they
Gaming and blackjack in Massachusetts.
Commercial gambling is illegal in Massachusetts except where expressly
authorized by the Commonwealth. See
G. L. c. 271, § 2; G. L. c. 23K. "Only those table games and their rules
authorized by the [c]ommission and posted on the [c]ommission's website . . .
may be offered for play in a gaming establishment." 205 Code Mass. Regs. § 147.02 (2018). New games or game variations may not be
offered until they are approved by the commission in accordance with the
process set out in the regulations, which requires independent certified
testing, field trials, public comment, and review. 205 Code Mass. Regs. §§ 147.02, 147.04
Blackjack is a card game in which players
total the value of their cards and attempt to get more points than the dealer
without going over a combined value of twenty-one. Initially, all players and the dealer are
dealt two cards. If a player's first two
cards include one ace and one card with a value of ten (which includes a ten,
jack, queen, or king), that player has been dealt a blackjack.
The commission has written and published
detailed rules of blackjack, which govern game play, equipment, wagers, and
payouts. The rules expressly refer to
"blackjack" and "the 6 to 5 blackjack variation" (6:5
variation). The 6:5 variation is not the
6:5 option at issue in these cases. The
major differences between standard blackjack and the 6:5 variation are as
follows: standard blackjack uses six or
eight decks of cards that are dealt face up from a dealing shoe, whereas the
6:5 variation uses one or two decks that are dealt face down from the dealer's
hand. In standard blackjack, blackjacks
receive 3:2 payouts, whereas in the 6:5 variation, blackjacks receive 6:5
payouts. The payouts in standard
blackjack are more favorable for the player, but the higher number of decks are
more favorable for the house. The same
is not true of the 6:5 variation: the
payouts are less favorable for the player, but using fewer decks increases the
Rule 7(d) contains the only direct
reference to playing by standard blackjack rules with a 6:5 payout:
licensee chooses the option to pay a blackjack at odd [sic] of 6 to 5 and
doesn't use the 6 to 5 variation, then Section 7(c) is void. If the licensee uses this option on 6 or 8
deck games, this variation's rules must be displayed on the layout in plain
Facts and procedural history.
a. Schuster matter
(SJC-13060). Encore does not offer the
6:5 variation. Encore does, however,
offer a version of blackjack that uses eight decks of cards dealt face up (as
in standard blackjack) and that pays 6:5 for a blackjack (as in the 6:5
variation). We will refer to this game
as 6:5 payout blackjack. Tables offering
6:5 payout blackjack displayed the following rules: "Blackjack pays 6 to 5. Dealer must draw to 16 and soft 17 and
stand on hard 17's and all 18's.
Insurance pays 2 to 1."
Encore offers 6:5 payout blackjack on the main casino floor, which is
open to the general public. Encore also
offers standard blackjack (with a 3:2 payout) on the upper level of the casino,
which is reserved for Encore's "high rollers."
Schuster and Ranson played 6:5 payout
blackjack at Encore, were dealt one or more blackjacks, and received 6:5
payouts. On July 15, 2019, Schuster
commenced a proposed class action suit in the Superior Court, which Encore
removed to the United States District Court for the District of Massachusetts. The District Court judge denied Encore's
motion to dismiss as to the blackjack dispute.
See Schuster v. Encore Boston Harbor, 471 F. Supp. 3d 411, 426 (D. Mass.
2020). After reviewing "the
language of [rule] 7(d) in context," a preliminary decision from the
commission's investigation and enforcement bureau (IEB) that Encore was in
compliance with the rules, and a transcript of the commission's discussion of
that decision, the District Court judge concluded that Schuster "made a
plausible claim as to Encore's potential violation of the [commission]'s rules
regarding the appropriate payout odds on 'a blackjack,' or, in the alternative,
Encore's failure to comply with the notice requirements of [rule] 7(d)
regarding even-money insurance wagers."
Id. at 422. After the complaint
was thereafter amended to add Ranson as a plaintiff, the judge, upon the joint
motion of the parties, then certified the following question to this court:
February 11, 2019 version of the Rules of Blackjack that were published by the
[commission] and posted on its website in accordance with [205 Code Mass. Regs.
§ 147.02] permit a Massachusetts casino to pay 6:5 odds to a player who was
dealt a winning Blackjack hand, while not otherwise playing by the '6 to 5 Blackjack
Variation' rules that were articulated in Rule 6a of the February 11, 2019
version of the Rules of Blackjack?"
DeCosmo matter (SJC-13031). Like
Encore, MGM offered 6:5 payout blackjack and publicized the 6:5 payout on the
felt. DeCosmo played 6:5 payout
blackjack at MGM, was dealt a blackjack, and received a 6:5 payout. On July 29, 2019, he brought a proposed class
action in the Superior Court. MGM's
motion to dismiss was granted, and DeCosmo appealed. We thereafter granted MGM's application for
direct appellate review.
Commission revisions. In the time
since these cases were commenced, the commission has revised both the blackjack
rules and the applicable blackjack table regulations. This case therefore only applies to the
limited period of time between the commencement of these cases in July 2019 and
the revision of the rules in October 2020.
Discussion. a. Standard of review. As to the DeCosmo matter, this court reviews
an order on a motion to dismiss de novo.
See, e.g., Dunn v. Genzyme Corp., 486 Mass. 713, 717 (2021). The Schuster matter came to us as a certified
question of law. See S.J.C. Rule 1:03,
as appearing in 382 Mass. 700 (1981).
Although the procedural postures of these cases are different, the legal
questions therein and our analysis of them are essentially identical. Therefore, we address them together.
Game authorization. These cases
require us to interpret the commission's rules of blackjack and equipment
regulations. As an initial matter, the plaintiffs
contend that the regulations carry more legal weight than the rules of
blackjack, and thus any conflict between the regulations and the rules should
be resolved in favor of the regulations.
We disagree. In these cases, the
blackjack rules and regulations carry equal weight, as they are proposed and
approved through similarly rigorous processes.
The plaintiffs rely on Northbridge v.
Natick, 394 Mass. 70, 76 (1985), in which this court stated that "internal
guidelines" and "policy statements" set by an agency
"without going through the procedures required for the promulgation of a
regulation . . . do not have the legal force of a statute or
regulation" (quotation and citation omitted). See Biogen IDEC MA, Inc. v. Treasurer &
Receiver Gen., 454 Mass. 174, 186 (2009) (Biogen) ("courts give the force
of law only to formal agency regulations" even though "agencies must
abide by their own internally promulgated policies" [citation
omitted]). However, the blackjack rules
differ significantly from the internal guidelines and policies discussed in
Northbridge and Biogen. The blackjack
rules are promulgated not only to guide the commission's activities and
enforcement, but also to regulate licensees' activity. See McGuiness v. Department of Correction,
465 Mass. 660, 662 n.4 (2013) ("having promulgated a rule or
regulation," agency "is bound to respect and enforce the rule as long
as it remains extant" [citation omitted]); 205 Code Mass. Regs.
§ 147.02 (rules govern which games licensee may offer). Table game rules undergo a thorough approval
process more similar to the promulgation of regulations than a simple internal
policy. See Northbridge, supra;
G. L. c. 30A, §§ 2-5 (requirements for regulations); 205 Code
Mass. Regs. § 147.04 (requirements for table game rules). In fact, the blackjack rules, although not
true regulations, largely match the statutory definition of a regulation in the
administrative procedure statute. G. L.
c. 30A, § 1 (defining regulation as "the whole or any part of every
rule, regulation, standard or other requirement of general application and
future effect . . . adopted by an agency to implement or interpret the law
enforced or administered by it").
Therefore, we read the regulations and the blackjack rules together, as
we would different sections of regulations, and we interpret both "in the
same manner as a statute, and according to traditional rules of
construction." Massachusetts Fine
Wines & Spirits, LLC v. Alcoholic Beverages Control Comm'n, 482 Mass. 683,
687 (2019) (Fine Wines), quoting Warcewicz v. Department of Envtl. Protection,
410 Mass. 548, 550 (1991).
Thus, "[a]s with any question of
statutory interpretation, our starting point is the . . . text." Commonwealth v. Vega, 449 Mass. 227, 230
(2007). "[L]anguage should be given
effect consistent with its plain meaning.
If the language is clear and unambiguous, it must be interpreted as
written" (quotation and citation omitted).
Boss v. Leverett, 484 Mass. 553, 557 (2020). Where the plain text of the rules and
regulations is ambiguous, an agency's reasonable interpretation of them is
generally entitled to deference. Carey
v. Commissioner of Correction, 479 Mass. 367, 371 (2018).
Blackjack rules and regulations.
Rule 7(d) is an interpretative challenge. It expressly states that the licensee may
"choose the option to pay a blackjack at odd [sic] of 6 to 5" and
does not need to "use the 6 to 5 variation" to do so. The rule's text therefore plainly
contemplates the possibility of a licensee using 6:5 payout blackjack in some
authorized way. It also appears from the
second sentence of rule 7(d) that 6:5 payout blackjack is permissible if the
rules are displayed on the layout in plain sight. As we discuss at length infra, the key rules
of the game were displayed or, in the case of rules regarding dealing
procedures, obvious to a player at the table.
There is no indication that the casinos attempted to deceive players as
to the rules of the game or the stakes they were playing.
Unfortunately, the rest of rule 7(d) is
confusing. Its cross reference to rule
7(c), declaring it void, seems unnecessary because, as the plaintiffs correctly
point out, an even-money payout for insurance wagers is a mathematical
impossibility when playing with 6:5 odds.
Further garbling its meaning, rule 7(d) describes 6:5 payout blackjack
as both an "option" and a "variation," thereby somewhat
confusing it with the 6:5 variation.
Rule 7(d) is also an outlier in rules
mostly devoted to standard blackjack and the 6:5 variation. The plaintiffs argue that to conclude that
rule 7(d) authorizes 6:5 payout blackjack would run contrary to and nullify
portions of the rest of the blackjack rules and regulations. See, e.g., Vega, 449 Mass. at 230. The rules do not, as the plaintiffs imply,
directly state that 6:5 payouts are impermissible when playing by standard
blackjack rules, but they do include mandatory, encompassing language that
expressly requires payout of 3:2 odds for blackjacks and only includes express
exceptions for the 6:5 variation. Rule
3(e), for example, states that "standard blackjack . . . shall be paid at
odds of 3 to 2, or at odds of 6 to 5 for the 6 to 5 blackjack
variation." Rule 7(a) states that
if a player has blackjack, the dealer "shall . . . pay the blackjack at
odds of 3 to 2," and rule 7(b) states that "the player having
blackjack shall be paid at odds of 3 to 2." Likewise, the regulations' blackjack layout
requirements only directly authorize displaying 6:5 odds for the 6:5
variation. 205 Code Mass. Regs.
§ 146.13(14) (2018) ("Blackjack pays 6 to 5" shall appear on
layout "[i]f a gaming licensee offers the 6 to 5 blackjack
variation"). Apart from this
provision specific to the 6:5 variation, the regulations state that
"Blackjack pays 3 to 2" "shall appear on the blackjack
layout." 205 Code Mass. Regs.
§ 146.13(3) (2018).
These rules mandating either 3:2 payouts
or the 6:5 variation are in apparent conflict with rule 7(d)'s express
reference to the "option" to offer 6:5 payout blackjack. Where provisions appear to conflict with each
other, we must first "endeavor to harmonize" them (citation
omitted). Donis v. American Waste Serv.,
LLC, 485 Mass. 257, 260 (2020). We must
avoid an interpretation that renders any provision entirely superfluous. See, e.g., Wheatley v. Massachusetts Insurers
Insolvency Fund, 456 Mass. 594, 601 (2010), S.C., 465 Mass. 297 (2013); Vega,
449 Mass. at 231.
Concluding, as the plaintiffs contend we
should, that rule 7(d) just stands for the mathematical reality that even-money
payouts are impossible when playing the 6:5 variation both runs contrary to the
plain text of the rule and renders most of the rule "inoperative" or
superfluous (citation omitted). Vega,
449 Mass. at 231. See Boss, 484 Mass. at
557. However, Encore and MGM's
contention that rule 7(d) is an express authorization of 6:5 payout blackjack
or a direct exception to the rest of the blackjack rules is not entirely clear
from the text.
As explained supra, the rest of the rules
and regulations do not expressly prohibit 6:5 payout blackjack, but they do set
forth general requirements for blackjack that appear to conflict with the
"option" referenced in rule 7(d).
See Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd.,
476 Mass. 130, 138 (2016), quoting Hashimi v. Kalil, 388 Mass. 607, 609 (1983)
("The word 'shall' is ordinarily interpreted as having a mandatory or
imperative obligation"). Likewise,
the language of rule 7(d) does not exempt 6:5 payout blackjack from other
requirements in the rules, but the statement that a licensee may
"choose" to offer the "option" or "variation"
of 6:5 payout blackjack appears permissive even in the face of the other
rules. See RCA Dev., Inc. v. Zoning Bd.
of Appeals of Brockton, 482 Mass. 156, 160–161 (2019) (use of permissive
language reflects "intent to grant discretion or permission to
. . . authorize an act" [citation omitted]). See also McDonough's Case, 448 Mass. 79, 84
(2006) (where wording creates exception, exception exists even though at odds with
Complete harmonization of these
conflicting provisions is thus difficult to achieve. The text of rule 7(d) contemplates 6:5 payout
blackjack as a legitimate option for licensees.
However, the lack of clarity in the way rule 7(d) itself is written, the
fact that its reference to 6:5 payout blackjack is an outlier in the rules, and
the apparent conflict between rule 7(d)'s permissive language and the mandatory
language in other parts of the rules leave the reader with some ambiguity as to
the meaning of rule 7(d). Given this
ambiguity, we turn to the doctrine of administrative deference.
Administrative deference. The
practice of deferring to an agency's reasonable interpretation of its own
ambiguous regulations, commonly known in Federal courts as Auer deference, is
long standing in both Massachusetts and Federal case law. See, e.g., Auer v. Robbins, 519 U.S. 452, 462
(1997); Craft Beer Guild, LLC v. Alcoholic Beverages Control Comm'n, 481 Mass.
506, 527 (2019); Finkelstein v. Board of Registration in Optometry, 370 Mass.
476, 478 (1976). In deciding whether
deference is due to an agency's interpretation, both this court and the United
States Supreme Court consider whether (1) the regulatory language is plain or
ambiguous; (2) the agency's interpretation is reasonable; (3) the
interpretation is the agency's official or authoritative position; (4) the
interpretation draws on the agency's technical and substantive expertise;
and (5) the agency's interpretation is based on fair and considered judgment. In the instant cases, all of these
considerations support the application of deference to the commission's
Regulation's text plain or ambiguous.
If the regulation is plain and unambiguous, it should be interpreted
according to its terms. See, e.g., Kisor
v. Wilkie, 139 S. Ct. 2400, 2415 (2019); Fine Wines, 482 Mass. at 687
("First, we look to the text of the regulation, and will apply the clear
meaning of unambiguous words unless doing so would lead to an absurd
result"); Carey, 479 Mass. at 369-370 (interpretation must be consistent
with plain text); Goldberg v. Board of Health of Granby, 444 Mass. 627, 636
(2005), citing Christensen v. Harris County, 529 U.S. 576, 588 (2000)
(deference to agency interpretation not appropriate where meaning of regulation
unambiguous). Courts can perform this
function without the assistance of, or deference to, the agency. Indeed, the Supreme Court will not even
consider the issue of deference unless the regulation is what the Court
describes as "genuinely ambiguous," "[a]nd before concluding
that a rule is genuinely ambiguous, a court must exhaust all the traditional
tools of construction" (quotation and citation omitted). Kisor, supra at 2414-2415.
As explained supra, the regulatory regime
at issue in these cases is ambiguous, thereby implicating the issue of
administrative deference. We have
attempted to interpret the rules, but we have concluded that it is difficult to
entirely harmonize the apparent conflict in the provisions. Thus, we decide that rule 7(d) is ambiguous,
requiring consideration of administrative interpretation and deference.
Reasonableness. When a regulation
is ambiguous, we are prepared to give what we have described as "considerable,"
"substantial," or "generous" deference to an agency's
interpretation of the regulation so long as the interpretation is
reasonable. Fine Wines, 482 Mass. at 687
("generous" deference required for reasonable interpretation of
regulation [citation omitted]). J.M.
Hollister, LLC v. Architectural Access Bd., 469 Mass. 49, 55 (2014) (describing
"considerable deference to the board's interpretation of . . . its own
regulation" [citation omitted]).
Franklin Office Park Realty Corp. v. Commissioner of the Dep't of Envtl.
Protection, 466 Mass. 454, 460 (2013) (court grants "substantial
deference" to "agency's particular expertise" unless
"unreasonable" [citations omitted]).
We have emphasized that a party opposing the agency's interpretation
bears a "formidable burden" to show that the interpretation is not
reasonable (citation omitted). Ten Local
Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010). See J.M. Hollister, LLC, supra. That being said, such deference is not
"unlimited." Craft Beer Guild,
LLC, 481 Mass. at 527.
The commission concludes, based on its
interpretation, that rule 7(d) should be given effect as authorizing 6:5 payout
blackjack. This interpretation is
consistent, rather than inconsistent, with the plain meaning of the language of
rule 7(d) itself, which references the use of 6:5 payouts without using the 6:5
variation so long as the rules are displayed.
See Boss, 484 Mass. at 557 (language should be given plain meaning); Fine
Wines, 482 Mass. at 687; Carey, 479 Mass. at 369-370 (interpretation must be
consistent with plain text). The
interpretation also lends meaning and purpose to rule 7(d), rather than
rendering it largely superfluous, as the plaintiffs' interpretation would. See, e.g., Wheatley, 456 Mass. at 601; Vega,
449 Mass. at 231. Although the
commission's failure to explain why 6:5 payout blackjack is not discussed
expressly elsewhere in the rules or how the permissive language in rule 7(d)
should interact with the blackjack requirements in the rest of the rules is
troublesome, and reflective of the inherent ambiguity of the rule, it is not
dispositive. Cf. Biogen, 454 Mass. at
187 (when interpreting statute, agency's interpretation must be "the
product of reasoned rule making" to receive deference). As evidenced by our attempt to harmonize the
apparent conflict in the rules, the commission's conclusion is reasonable and
consistent with the text of the rules and does not lead to an absurd
result. See, e.g., Fine Wines, 482 Mass.
at 687; Carey, 479 Mass. at 369-370. The
interpretation is therefore ordinarily entitled to considerable or generous
deference. See Carey, supra; J.M.
Hollister, LLC, 469 Mass at 55.
Other factors that we have considered in evaluating whether deference is
appropriate also confirm this determination.
Agency's authoritative, official position. In evaluating deference, we also consider
whether the agency's decision is an official statement made by those authorized
to speak for the agency. See Kisor, 139
S. Ct. at 2416. Cf. Sullivan v. Sleepy's
LLC, 482 Mass. 227, 232 n.11 (2019) (deferring to "agency's interpretation
[of statute] contained in an opinion letter"), citing Swift v. AutoZone,
Inc., 441 Mass. 443, 450 (2004) (explaining deference with respect to opinion
letter). There is little doubt that the
commission's amicus brief represents its "authoritative" or
"official" position. Kisor,
supra. In the past, both the Supreme
Court and this court have accepted an agency's amicus brief as
authoritative. See Auer, 519 U.S. at
463–464 (deferring to interpretation advanced in Secretary of Labor's amicus
brief); Costa v. Fall River Hous. Auth., 453 Mass. 614, 620 n.9 (2009)
(accepting amicus brief's "present explicit statement about the intended
meaning of this regulation" over agency's past statements). The amicus brief here details the
commission's formal decision and is easily distinguishable from interpretations
cited as nonauthoritative. See Kisor,
supra at 2416-2417 ("speech of a mid-level official," "informal
memorandum," and explicitly nonauthoritative guides are not official
Implication of substantive expertise.
We accord "due weight to the experience, technical competence, and
specialized knowledge of the agency" (citation omitted). Ten Local Citizen Group, 457 Mass. at
228. Thus, in evaluating whether
deference is appropriate, we have also considered it important that an
interpretation be based in some way on this expertise or specialized knowledge. The commission's expertise is clearly
implicated here, as its brief interprets specialized rules of blackjack that
are written by the commission and implemented by licensees under the
commission's regulation. See G. L.
c. 23K, § 4.
Fair and considered judgment.
Finally, we evaluate whether an agency's interpretation reflects a
"fair and considered judgment" to receive deference (citation
omitted). Kisor, 139 S. Ct. at
2417. See Mullally v. Waste Mgt. of
Mass., Inc., 452 Mass. 526, 533 & n.13 (2008) (discussing weight of
interpretation made in shadow of litigation); Goldberg, 444 Mass. at 636
("arbitrary, whimsical, or capricious" interpretations not due
deference [citation omitted]).
To this end, "[a]dministrative
interpretation developed during, or shortly before, the litigation in question
is entitled to less weight than that of a long-standing administrative
interpretation of administrative rules" (citation omitted). Mullally, 452 Mass. at 533 n.13. See Beverly Port Marina, Inc. v. Commissioner
of the Dep't of Envtl. Protection, 84 Mass. App. Ct. 612, 620–621 (2013),
quoting United States Gypsum Co. v. Executive Office of Envtl. Affairs, 69
Mass. App. Ct. 243, 249 n.16 (2007) ("our judicial deference 'may be
tempered' when . . . the agency interpretation at issue is not one of
long-standing or consistent application"); Crawford v. Cambridge, 25 Mass.
App. Ct. 47, 49 (1987) (reasonable interpretation that is "consistently
applied" entitled to deference).
See also Dinkins v. Massachusetts Parole Bd., 486 Mass. 605, 611 n.7 (2021)
(in context of agency applying statute, "consistent, long continued
administrative application" may merit "[s]ignificance in
interpretation" [citation omitted]).
We distinguish considered and consistent interpretations from a
"merely convenient litigating position or post hoc rationalization"
(quotations, citation, and alteration omitted).
Kisor, 139 S. Ct. at 2417.
The interpretation advanced by the
commission here is consistent with a past decision by the commission's
IEB. Just three days after the first
complaint filed in these cases, the IEB "preliminarily found Encore to be
in compliance with the [c]ommission's rules and regulations," and decided
not to pursue an enforcement action. In
a later executive session, the commission determined that it did not take issue
with the IEB's analysis and conclusions.
Admittedly, the IEB memorandum, like the amicus brief, fails to explain
some of the apparent conflict in the rules and the nature of rule 7(d) as an
outlier. The agency's interpretation of
this question was not put forward until July 2019, when this litigation had
already been initiated, and so it is not necessarily a "long-standing
Mullally, 452 Mass. at 533 n.13.
Nonetheless, it is significant that various bodies of the commission
have consistently come to the same conclusion since the first time the
commission was notified of the difficulties in interpreting the rules. See id.
Further, in these cases, the fact that the
commission is not a party to the litigation supports the notion that its
interpretation is fair and considered, as the commission is less likely to
offer a self-interested interpretation.
See Kisor, 139 S. Ct. 2417 n.6, quoting Auer, 519 U.S. at 462 (where
agency not party to litigation and expressed its views only in response to
court's request, "no reason to suspect that the interpretation [did] not
reflect the agency's fair and considered judgment on the matter");
Mullally, 452 Mass. at 533 n.13 (addressing weight of interpretation made in
shadow of litigation). Even if, as one
amicus brief suggests, the commission has a financial interest in the tax
revenue generated by the casinos, that interest is not relevant here, where the
commission is interpreting rules and regulations that are no longer
operative. The commission was approached
about submitting an amicus brief by defense counsel, but initially declined to
do so to avoid the appearance "that it was anything but neutral when it
came to its oversight of the industry."
The commission submitted the amicus brief only following this court's
solicitation. See Kisor, supra (agency
submitting interpretation in response to court's request likely reflects fair
and considered judgment). There is
nothing to suggest that the commission's interpretation is the product of
unfairness, lacks consideration, is "arbitrary, whimsical, or
capricious," Goldberg, 444 Mass. at 636, or was developed in the shadow of
litigation, see Kisor, supra at 2417 & n.6; Mullally, supra.
In sum, all of the relevant considerations
weigh in favor of deference here. As
demonstrated by our attempt to harmonize the rules and regulations governing
blackjack, rule 7(d) is ambiguous. The
commission's official interpretation is consistent with the text, is
"reasonable," and "does not lead to an absurd result." Fine Wines, 482 Mass. at 687. See Kisor, 139 S. Ct. 2415-2416
(interpretation must be "reasonable" or "within the zone of
ambiguity the court has identified after employing all its interpretive
tools" to receive deference); Carey, 479 Mass. at 369-370 (interpretation
must be consistent with text of rules to receive deference). The interpretation is also the commission's
official position, implicates its substantive expertise, and reflects its fair
and considered judgment. See Kisor, 139
S. Ct. 2416-2418; Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 335 (2013);
Costa, 453 Mass. at 620 n.9; Mullally, 452 Mass. at 533 n.13. Thus, we conclude that, per the commission's
interpretation, rule 7(d) allows the licensees to offer 6:5 payout blackjack.
Blackjack layout. The plaintiffs
further argue that the layouts of the Encore's and MGM's 6:5 payout blackjack
tables did not comply with the commission's rules and regulations. Rule 7(d) requires that "[i]f the
licensee uses this option [to pay 6:5 odds without playing the 6 to 5
variation] on 6 or 8 deck games, this variation's rules must be displayed on
the layout in plain sight." Title
205 Code Mass. Regs. § 146.13 further specifies the layout requirements
for blackjack and its variations.
The commission's regulations as a whole
are clearly designed to ensure that players have notice of the rules when they
sit down to play a game. See 205 Code
Mass. Regs. §§ 146.13, 147.02, 147.03 (2018). To this end, the equipment regulations
specifically require blackjack tables to display, at a minimum, the
following: the payout for blackjack;
when the dealer must draw, stand, or hit; and the payout for insurance. 205 Code Mass. Regs. § 146.13(3)
("[t]he following inscriptions shall appear on the blackjack
layout"), (14) (layout inscription requirements "[i]f a gaming
licensee offers the 6 to 5 blackjack variation"). The equipment regulations do not have an
inscription requirement specific to 6:5 payout blackjack; only rule 7(d)
references displaying the rules of 6:5 payout blackjack.
Encore's tables offering 6:5 payout
blackjack displayed the following rules:
"Blackjack pays 6 to 5.
Dealer must draw to 16 and soft 17 and stand on hard 17's and all 18's. Insurance pays 2 to 1."
Encore and MGM contend that rule 7(d)'s
requirement that "this variation's rules must be displayed in plain
sight" is only a requirement that the selected odds be displayed. This is a clear misreading of the plain text
of the rule: payouts are merely one
small portion of the blackjack rules of every variation. As the Federal District Court judge correctly
noted in her review of the rules, the words "payout" and
"rule" are not used interchangeably.
Schuster, 471 F. Supp. 3d at 421.
That said, it is clear from the layout
requirements set out in the regulations that licensees are not required to
imprint every page of the blackjack rules on their tables. Rather, the regulations require a display of
the odds, the rules the dealer must follow when competing against players, and
the payment of insurance. 205 Code Mass.
Regs. § 146.13(3), (14). Encore's
tables, although obviously displaying the 6:5 odds referenced in rule 7(d)
instead of the 3:2 odds specifically required by the equipment regulations, did
abide by these general requirements.
Importantly, the main differences between
6:5 payout blackjack and the 6:5 variation -- the number of decks and whether
cards are dealt face up or face down -- are easily observable just by watching
the game play, particularly given that the 6:5 variation is dealt by hand,
rather than machine. Thus, any player
familiar enough with the blackjack rules to know the differences between
standard blackjack and the 6:5 variation would have been able to observe the relevant
features of 6:5 payout blackjack and know they were not playing the 6:5
variation. Although Encore and MGM chose
to operate a house-friendly game, they did not deceive players into believing
it would be more player-friendly than it actually was.
Therefore, we conclude that Encore's and
MGM's layouts complied with rule 7(d)'s notification requirement that
"this variation's rules must be displayed on the layout in plain
Conclusion. a. Schuster matter (SJC-13060). We answer "yes" to the certified
question, "Did the February 11, 2019 version of the Rules of Blackjack
that were published by the Massachusetts Gaming Commission and posted on its
website in accordance with [205 Code Mass. Regs. § 147.02] permit a
Massachusetts casino to pay 6:5 odds to a player who was dealt a winning
Blackjack hand, while not otherwise playing by the '6 to 5 Blackjack Variation'
rules that were articulated in Rule 6a of the February 11, 2019 version of the
Rules of Blackjack?"
The Reporter of Decisions is to furnish
attested copies of this opinion to the clerk of this court. The clerk in turn will transmit one copy,
under the seal of the court, to the clerk of the United States District Court
for the District of Massachusetts, as the answer to the question certified, and
also will transmit a copy to each party.
DeCosmo matter (SJC-13031).
Because we conclude that the rules authorized MGM to offer 6:5 payout
blackjack, we affirm the Superior Court judge's order granting MGM's motion to
 Individually and on behalf of all
others similarly situated.
 Doing business as MGM Springfield,
 Individually and on behalf of all
others similarly situated.
 Robert Ranson, individually and on
behalf of all others similarly situated.
 Wynn MA, LLC; and Wynn Resorts, Ltd.
 These cases were consolidated at oral
argument. The arguments of the parties
in both cases have been considered together, but the final dispositions are written
separately in order to properly address the procedural differences between the
 We acknowledge the amicus briefs
submitted in Schuster and Ranson's case by the Massachusetts Gaming Commission
and the Stop Predatory Gambling Foundation.
 To illustrate, if a player wins a one
hundred dollar wager in standard blackjack, the 3:2 payout is $150. If a player wins a one hundred dollar wager
in the 6:5 variation, the 6:5 payout is $120.
 Section 7(c) refers to an even-money
payout option for insurance wagers, which are explained in note 13, infra.
 A "soft 17" is a hand
containing an ace with a total point value of seventeen when the ace is counted
as eleven in value.
 This court does not have information
as to what else was printed on the felt at MGM.
 General Laws c. 30A, § 1, contains
certain exceptions inapplicable to the blackjack rules.
 Insurance wagers may occur when the
player is dealt a blackjack and the dealer's face up card is an ace. In these circumstances, pursuant to rule 9, a
player may place an insurance wager, which is a bet that the dealer will also
have a blackjack. Winning insurance
wagers are paid at odds of 2:1. Under rule
7(c), if a player has a blackjack, he or she may opt for an even-money payout
(to be paid at odds of 1:1 on the blackjack wager) instead of making an
insurance wager. This option essentially
shortcuts the result of an insurance wager in standard blackjack: if the player has blackjack and places an
insurance wager, whether the dealer has blackjack or not, the player is paid
the same amount of money. When playing
with 6:5 odds, the player may place an insurance wager, but it is not
mathematically possible to achieve this even-money result, because the player
would receive less for his or her blackjack wager.
The illustration of a one hundred dollar
wager and a fifty dollar insurance bet is helpful to understand even-money
payouts. When playing with a 3:2 payout
(as one must for even money), assume the player places a one hundred dollar
original wager, and a fifty dollar insurance wager. If the dealer has blackjack, the player
neither wins nor loses any money on the one hundred dollar wager, but the fifty
dollar insurance bet wins and is paid at odds of 2:1. The player is paid one hundred dollars on the
insurance bet, and nothing on the original bet; therefore, the player receives
one hundred dollars -- a 1:1 payout or "even money" to the original
wager. If the dealer does not have
blackjack, the player loses the fifty dollar insurance bet but wins the
original one hundred dollar wager and is paid at 3:2 -- $150. The total payout is $150, but the player has
lost the fifty dollars spent on the insurance wager, and so, again, the player receives
one hundred dollars, "even money" to the original wager. This outcome is not possible when playing
with a 6:5 payout because the player would only receive $120 if the dealer does
not have blackjack.
 Unless otherwise noted, we refer to
the version of 205 Code Mass. Regs. § 146.13 operative at all relevant
times for these lawsuits, prior to the amendments in 2021.
 The regulations also contain a
provision for "blackjack rule variations," which requires a display
that correlates only to a 1:1 payout blackjack variation. See 205 Code Mass. Regs. § 146.13(4)
(2018) ("If a gaming licensee offers blackjack rule variations, the
blackjack layout shall have imprinted on it . . . Blackjack pays 1 to
1 . . ."). Although the use of the
plural "variations" indicates that there might be multiple variations
to blackjack, this regulation only authorizes display of 1:1 payouts, implying
that the drafters did not consider 6:5 payout blackjack an authorized
 As discussed supra, the blackjack
rules, although not true regulations, are functionally analogous to
regulations. Therefore, we treat the
commission's interpretation of the rules with the same deference we would its
interpretation of its own regulations.
 See Kisor v. Wilkie, 139 S. Ct. 2400,
2414 (2019) ("possibility of deference can arise only if a regulation is
genuinely ambiguous"); Finkelstein, 370 Mass. at 478 (guiding
"principle is one of deference, not abdication, and courts will not
hesitate to overrule agency interpretations of rules when those interpretations
are . . . inconsistent with the plain
terms of the rule itself").
 See Kisor, 139 S. Ct. at 2415
(requiring agency's reading to be reasonable); Warcewicz, 410 Mass. at 550-552
(rejecting unreasonable interpretation of regulation).
 See Kisor, 139 S. Ct. at 2416
(requiring agency's interpretation to be authoritative or official position
rather than any more ad hoc statement); Costa v. Fall River Hous. Auth., 453
Mass. 614, 620 n.9 (2009) (addressing which of agency's conflicting
interpretations should be considered official and therefore receive deference).
 See Kisor, 139 S. Ct. at 2417
(requiring agency's interpretation to implicate its substantive expertise);
Dental Serv. of Mass., Inc. v. Commissioner of Revenue, 479 Mass. 304, 310 n.12
(2018) (giving weight to agency's relevant substantive expertise and
 See Kisor, 139 S. Ct. at 2417-2418
(requiring agency's interpretation to be product of its "fair and
considered judgment" [citation omitted]); Mullally v. Waste Mgt. of Mass.,
Inc., 452 Mass. 526, 533 & n.13 (2008) (contrasting deference owed to
long-standing interpretations with those developed shortly before and in
response to litigation).
 Although we consider many of the same
factors as the Supreme Court in deciding whether to defer to an agency's
interpretation, the Supreme Court appears to be somewhat more restrictive in
its application of deference. We are
less hesitant to consider the agency's interpretation, see Kisor, 139 S. Ct. at
2414-2415, and more "generous" in our deference (citation omitted),
see Fine Wines, 482 Mass. at 687. See
infra for discussion of "considerable" and "generous"
deference in Massachusetts case law.
 The Supreme Court has not adopted
this formulation; it has also emphasized that "not every reasonable agency
reading of a genuinely ambiguous rule should receive Auer deference."
Kisor, 139 S. Ct. at 2416.
 See Dental Serv. of Mass., 479 Mass.
at 310 n.12 (giving weight to agency's relevant substantive expertise and
specialized knowledge); Franklin Office Park Realty Corp., 466 Mass. at 460
(deferring to agency's "particular expertise"); Friends & Fishers
of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass.
830, 837 (2006) ("We do not intrude lightly within the agency's area of
expertise, as long as the regulations are interpreted with reference to their
purpose . . ." [quotation and citation omitted]). See also Kisor, 139 S. Ct. at 2417 ("the
agency's interpretation must in some way implicate its substantive
 Only the Encore table inscriptions
appear in the record. DeCosmo alleges
that the MGM tables displayed that blackjack pays at odds of 6:5. DeCosmo has made no allegations, and this
court does not have information, as to precisely what else was imprinted on
MGM's tables. MGM's arguments with
regard to the table inscriptions are identical to Encore's.
 We do not have complete information
as to what else was imprinted on MGM's tables.
See note 25, supra.
 The plaintiffs argue that this
provision requires the defendants to post in plain sight that even-money
insurance bets were void at 6:5 payout blackjack tables. However, rule 7(d)'s statement about
even-money insurance bets merely states a mathematical truth, not a rule. The commission did not require licensees to
display any information about even-money insurance bets at 6:5 variation
tables. 205 Code Mass. Regs.
§ 146.13(14). The impossibility of
even-money insurance bets is a fact of blackjack played at 6:5 odds, not a