TNT Amusements, Inc. v. Torch Electronics, LLC et al

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TNT AMUSEMENTS, INC., )
d/b/a PLAY-MOR COIN-OP, )
)
Plaintiff, )
)
v. ) Case No. 4:23-CV-330-JAR
)
TORCH ELECTRONICS, LLC, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Count VII seeking declaratory judgment in
this dispute between competitors in the retail amusement device industry. For the reasons set
forth below, the Court will enter a partial declaratory judgment in Plaintiff’s favor.
INTRODUCTION
Plaintiff TNT Amusements (TNT) owns and leases traditional arcade games and similar
amusement equipment (e.g., dart boards, pinball machines) in retail locations throughout
Missouri. Defendant Torch Electronics (Torch) leases “no-chance” gaming machines in the same
territory. Defendant Steven Miltenberger is Torch’s president and majority owner. TNT centrally
alleges that Torch’s devices are illegal slot machines that divert TNT’s customers.
Litigation between these parties precedes and exceeds this case.1 TNT filed this federal
action in March 2023 asserting claims of false advertising under the Lanham Act (Count I),
unfair competition under Missouri common law (Count II), four counts under the Racketeer
1 For a full chronology and greater context, see TNT Amusements, Inc. v. Torch Elecs., LLC, No.
4:23-CV-330-JAR, 2025 WL 947506, at *1 (E.D. Mo. Mar. 28, 2025), vacated in part on
reconsideration, No. 4:23-CV-330-JAR, 2025 WL 2336858 (E.D. Mo. Aug. 13, 2025).
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Influenced and Corrupt Organizations Act (RICO) (Counts III-VI), and this seventh count
seeking a declaration that Torch devices are illegal gambling devices and slot machines under
Missouri law. The Court granted summary judgment in Torch’s favor on TNT’s RICO claims,
allowed Counts I and II to proceed to trial, and initially dismissed Count VII on principles of
abstention. (Doc. 312). On Torch’s subsequent motion for reconsideration, the Court vacated its
earlier dismissal of Count VII but reserved ruling on it pending factual determinations by the
jury on Counts I and II. (Doc. 332). The parties tried those counts during a five-day jury trial
starting September 29, 2025. To find liability, the jury had to find that that one or more of the
following commercial representations by Torch were false or misleading:
• In the No Chance Game, chance has absolutely no role in any possible outcome;
• The “Prize Viewer” option on NCGs eliminates chance;
• Every “No Chance” Game is carefully designed to ensure that the element of chance has
no role in the outcome; or
• As a result, this amusement device does not fit any definition of a “gambling device” in
the state of Missouri and is not prohibited for use by you.
Jury Instrs. (Doc. 400 at 7, 9, 12). After two hours of deliberation, the jury returned a verdict in
favor of TNT on both counts, specifically finding falsity in one or more statements. (Doc. 401).
The Court now revisits Count VII, in which TNT seeks a declaratory judgment that (1)
Torch Devices are illegal gambling devices and slot machines under Mo. Rev. Stat. § 572.010
and (2) Torch operates an “illegal gambling business” under 18 U.S.C. § 1955 (a predicate act
for civil RICO liability). Compl. (Doc. 1 ¶¶ 387, 399). The Court had two opportunities to hear
from both parties’ technical experts in this case, at a Daubert hearing in October 2024 and again
at trial. Their testimony demonstrated clearly and conclusively that Torch Devices contain
multiple elements of chance. Based on the evidence adduced at trial, the factual findings of the
jury, and the Court’s review of applicable law, the Court concludes that the devices meet the
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statutory definition of “gambling device” and are therefore illegal under Missouri law when
played outside a licensed casino. Mindful of the principles of restraint that led the Court to
abstain in the first instance, the Court deems any further declarations redundant and unnecessary.
BACKGROUND
Missouri’s Regulatory Framework
Chapter 313 of the Missouri Revised Statutes governs activities regulated by the Missouri
Gaming Commission, such as riverboat gambling, bingo, the state lottery, horse racing, and
fantasy sports. The Commission’s extensive regulatory framework is set forth in 11 C.S.R. 45.
The Commission is part of the Department of Public Safety and consists of five members
appointed by the governor with approval of the state senate. Mo. Rev. Stat. § 313.004. The
Commission issues licenses to businesses and individuals, collects taxes and fees, and enforces
gaming laws in the state. Sections 313.800 to 313.840 govern riverboat gambling. Section
313.805 empowers the Commission to license riverboat casinos, adopt standards of operation,
investigate and sanction violations, and confiscate unauthorized games. If the Commission has
reasonable grounds to believe that a violation of the provisions governing riverboat gambling has
occurred, the Commission refers such matters to the Missouri Attorney General and local
prosecuting attorney. § 313.830.7. In coordination with the Commission, the Gaming Division of
the Missouri State Highway Patrol provides criminal and regulatory enforcement of gaming
operations in the state.2 The Commission views its regulatory authority as limited to licensed
businesses, with the additional ability to provide technical support to law enforcement agencies
2 Gaming (last visited March 26, 2025). Perma | MSHP Gaming Division
[https://perma.cc/YJ7U-BR6H]. The Court may take judicial notice of government websites.
Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 793 (8th Cir. 2016).
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investigating illegal gambling machines located on unlicensed premises. (Doc. 226-22 at 3;
Doc.226-23 at 7, 13; Doc. 242-34 at 32-34, 69).
Gaming taxes are a considerable source of revenue in Missouri. In addition to standard
income and property taxes, casinos pay a gaming tax of 21% of their adjusted gross revenue.
(Doc. 242-34 at 157). Ten percent of the gaming tax goes to the local jurisdiction, and the
remaining 90% is paid into an education fund. In fiscal year 2024, Missouri casinos contributed
over $357 million to the education fund.3
Chapter 572 of the Missouri Revised Statutes is the part of the state criminal code that
creates certain offenses and punishments regarding illegal gambling. As relevant here, § 572.010
contains the following definitions.
(3) “Contest of chance”, any contest, game, gaming scheme or gaming device in
which the outcome depends in a material degree upon an element of chance,
notwithstanding that the skill of the contestants may also be a factor therein;
(4) “Gambling”, a person engages in gambling when he or she stakes or risks
something of value upon the outcome of a contest of chance or a future
contingent event not under his or her control or influence, upon an agreement or
understanding that he or she will receive something of value in the event of a certain
outcome. Gambling does not include bona fide business transactions valid under
the law of contracts, including but not limited to contracts for the purchase or sale
at a future date of securities or commodities, and agreements to compensate for loss
caused by the happening of chance, including but not limited to contracts of
indemnity or guaranty and life, health or accident insurance; nor does gambling
include playing an amusement device that confers only an immediate right of replay
not exchangeable for something of value. Gambling does not include any licensed
activity, or persons participating in such games which are covered by sections
313.800 to 313.840;4
(5) “Gambling device”, any device, machine, paraphernalia or equipment that is
used or usable in the playing phases of any gambling activity, whether that
activity consists of gambling between persons or gambling by a person with a
3 2024 Missouri Gaming Commission Annual Report 2024 at p. 9 (last visited March 24, 2025).
Perma | Missouri Gaming Commission Annual Report 2024 [https://perma.cc/TL4K-WKF2].
4 Sections 313.800 to 313.840 govern riverboat gambling.
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machine. However, lottery tickets, policy slips and other items used in the playing
phases of lottery and policy schemes are not gambling devices within this definition
(11) “Slot machine”, a gambling device that as a result of the insertion of a coin or
other object operates, either completely automatically or with the aid of some
physical act by the player, in such a manner that, depending upon elements of
chance, it may eject something of value. A device so constructed or readily
adaptable or convertible to such use is no less a slot machine because it is not in
working order or because some mechanical act of manipulation or repair is required
to accomplish its adaptation, conversion or workability. Nor is it any less a slot
machine because apart from its use or adaptability as such it may also sell or
deliver something of value on a basis other than chance.
§ 572.010 (emphasis added).
Torch Devices
Torch markets, distributes, and services “no-chance” game machines throughout
Missouri.5 Torch purchases these devices from Banilla Games in North Carolina. Each device
features at least five game themes, and each theme offers several play levels. A game theme is a
series of visual images displayed to the player, revealing a combination of winning or losing
symbols on each turn.6 A play level dictates the payment required to play the next turn.
At trial, the jury was permitted to examine an exemplar Torch Device provided by the
Defendants (a Torch NCG Deluxe 5). The jury also heard testimony from experts from both
sides, Stacy Friedman (for TNT) and Nick Farley (for Defendants), who described the functions
5 The Torch Devices include: No Chance Game Suite I Terminal version 2.3.0.23596; No
Chance Game Suite II Terminal version 3.2.0.19403; No Chance Game Suite 3 Terminal version
3.4.0.1; NCG Suite 4 Terminal version 4.2.1.31972; NCG Deluxe Terminal version 5.5.0.17; NCG
5; NCG Deluxe 1; NCG Deluxe 2; NCG Deluxe 3; NCG Deluxe 4; NCG Dual; NCG Skyriser;
and NCG Hot Locks.
6 Torch Device game themes include Lucky’s Loot, Lucky Lollipop, Lucky Striker, Lightning
Strike, Bourbon Street Dice, Fabulous Las Vegas, Searing Sevens, Shammy 7’s, Spooky’s Loot,
Wheel Deal, Arabian Riches, Bathtime Bucks, Party Crashers, Super Keno, Frozen Sevens, Kitty
Kash, Major Ca$h, Oil Rush, St. Patty’s Payday, Box Office, Double Shot, Mega Money Reel,
Nut Shack, Piggy Bank Busy, Silver & Gold Spins, Kiss Me I’m Irish, Sparky’s Firehouse, Ticket
to Ride, and Dr. Jekyll & Mr. Hyde.
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of the Torch Devices. The two experts largely agreed on how the Torch Devices functioned; their
few disagreements are not dispositive to the Court’s analysis of Count VII.7
Although the game themes differ among the Torch Devices, the underlying software used
to determine the outcomes in all Torch Devices is, for all relevant purposes, the same. Each
Torch Device contains, for each of its game themes, an ordered list of “prize multipliers,” such
as a 0.0, 0.2, 0.4, or 1.2, each of which may contain as many as 100,000 entries. On each play,
the prize multiplier is multiplied by the play amount to determine what prize (if any) to award to
the player. Those prize multipliers are stored in a database within each of the Torch Devices.
For each individual Torch Device, Banilla shuffles the list of prize multipliers before the
device is shipped to Torch. Then, the first time that a particular game theme on a Torch Device is
played at a particular play level, the starting point within the ordered list is determined using a
random number generator contained within the Torch Devices. There are 12 possible starting
points on each play level of each game theme. So, for a Torch Device with six game themes and
five play levels, the starting index would be randomly selected five times in each of the six
themes. From any given starting point, for each turn of play, the software cycles through pre-
7 Mr. Friedman testified that three of the exemplar drives sent to him by Mr. Farley contained
a feature that would shuffle the list of potential prize multipliers during the course of a single Torch
Device’s operation. Mr. Farley claimed that these three exemplars were sent in error and were not
representative of the Torch Devices he understood to be in operation in Missouri, while
acknowledging that he did not have personal knowledge as to what particular software was on any
Torch Device in Missouri. Mr. Friedman also acknowledged that the other exemplars of Banilla
“no chance” devices he examined did not contain any active software feature that would shuffle
the order of prize multipliers after the devices’ activation. Thus, the parties at least agree that not
all Torch Devices contain a “shuffle” feature of the sort observed by Mr. Friedman. The Court
therefore need not rely on the existence or absence of any such “shuffle” feature in reaching its
conclusions, especially as the Torch Devices undisputedly possess other characteristics that are
based on chance. To the extent, however, that any Torch Devices in operation today do contain
the shuffle feature identified by Mr. Friedman, that is an additional element of chance that would
be sufficient on its own to make the Torch Devices gambling devices and slot machines under
Missouri law.
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determined and finite sequential pools of 60,000 to 100,000 prize multipliers, depending on the
game theme, which is then multiplied by the selected play amount. Based on the resulting “prize
amount” (which may be either $0.00 or a positive dollar amount), the device uses a random
number generator to reverse-map a visual outcome, which in most cases is a combination of
symbols on a spinning reel, similar in appearance to a standard casino slot machine game. The
game may also randomly initiate “bonus” features, where players will see additional randomly
generated images corresponding to the “prize amount.” A player has no control over which
combination of symbols will appear.
There are no discernible patterns within the sequential pools of prize multipliers. There is
nothing a player can do to alter the payout amount of a turn before or after the player inserts
money. There is no element of skill in any of the game themes on the Torch Devices.
The lowest bill denomination a player may insert into a Torch Device is $1.00. Torch
Devices do not accept quarters, so, if there is a balance of $0.25 when a player decides to stop
playing, there is no way to recover that amount. For example, if a player decides to stop playing
when there is a balance of $1.75 left on the machine, when the player cashes out, he or she will
receive only $1.00 back—the remaining $0.75 stays on the machine. When a player runs out of
sufficient funds for the next turn, she must insert more money to continue playing.
Each Torch Device has an optional “prize viewer” that, when pressed, displays the next
prize amount to appear if the player continues to play a game theme at the selected play level.
The prize viewer itself doesn’t explain that the number shown is the prize amount for the next
play; this information is contained in the rules within the electronic menus of the game.
The prize viewer is an optional feature. Not all players use it or use it every time. Using
the prize viewer does not increase the likelihood (or unlikelihood) of a better payout. The prize
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viewer shows only the prize amount (in dollars and cents) of the next turn. It does not display
the visual outcome (i.e., the combination of symbols that will appear) of the next turn, nor does
it reveal the prize amount of any subsequent turn beyond the next turn. So, for example, if a
player selects the prize viewer and sees that the next payout amount is $0 and she wants to
obtain a better result, she must play through that $0 turn and continue playing. She can’t skip
ahead. If she wants to know the payout of the second, third, or any future turn, she must pay for
and play through those additional turns.
The evidence at trial established that, in July 2019, representatives of the Missouri
Gaming Commission examined an NCG 2 device (which was functionally identical to the NCG
2 device exemplar that Mr. Farley provided to Mr. Friedman) and determined that the device
was an illegal gambling device. A letter subsequently issued by the general counsel of the
Missouri Gaming Commission stated in pertinent part:
Upon examination and analysis of those devices, the MGC determined that the
machines are used or USABLE in the playing phases of gambling activities and
therefore constitute “gambling devices” and “slot machines” as defined in sections
572.010(5) and (11), RSMo. Therefore, setting up and operating these devices at
your VFW Post would be illegal, in violation of sections 572.030, 572.040 and
572.070. RSMo.
In our opinion, the fact that the player can choose to reveal a prize prior to the first
game play, and the nominal existence of some element of skill in the game, does
not remove the devices from the prohibitions cited above.
If these particular devices or any other devices substantially similar to them are
found on your organization’s premises, the device will be deemed illegal. . . .
In this Count VII, TNT asks the Court to issue a similar declaration.
LEGAL STANDARD
The Declaratory Judgment Act provides, “[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be
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sought.” 28 U.S.C. § 2201(a). To determine whether a substantial controversy exists, courts
consider whether “there is a substantial controversy, between parties having adverse legal
interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
Caldwell v. Gurley Refining Co., 755 F.2d 645, 649 (8th Cir. 1985) (quoting Maryland Cas. Co.
v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)). Declaratory relief is proper: “(1) when the
judgment will serve a useful purpose in clarifying and settling the legal relations in issue; and (2)
when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving
rise to the proceedings.” Alsager v. Dist. Ct. of Polk Cty., 518 F.2d 1160, 1163 (8th Cir. 1975).
ANALYSIS
Torch Devices Are “Gambling Devices” Under Missouri Law
A device is a gambling device under Missouri law if the device is “used” or “usable” in
the playing phases of any gambling activity. Mo. Rev. Stat. § 572.010(5). The evidence at trial
established that Torch Devices are “usable” in the playing phases of gambling activities and have
been “used” in such a manner.
A “gambling device” allows a player to “stake[] or risk[] something of value upon the
outcome of a contest of chance or a future contingent event not under his or her control or
influence, upon an agreement or understanding that he or she will receive something of value in
the event of a certain outcome.” Mo. Rev. Stat. § 572.010(4). A “contest of chance” includes
“any contest, game, gaming scheme or gaming device in which the outcome depends in a
material degree upon an element of chance, notwithstanding that the skill of the contestants may
also be a factor therein.” Mo. Rev. Stat. § 572.010(3).
On Counts I and II, the jury found to be false Torch’s representations that chance played
no role in its devices. Inherent in the jury’s verdict is the inverse finding that Torch Devices do
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involve an element of chance. As such, based on the evidence adduced at trial and jury’s ultimate
verdict, the Court finds that the Torch Devices readily meet the foregoing definitions in
§ 572.010 because they allow players to “risk[] something of value upon the outcome of a
contest of chance or future contingent event not under his or her control or influence,” thus
making them “usable” in the “playing phases” of gambling.
As the evidence at trial demonstrated, the pools of up to 100,000 prize multipliers in the
Torch Devices are arranged in no discernible pattern, and Banilla shuffles the pools on every
Torch Device before they are shipped to Torch. The order of the prize multipliers in the pools,
and thus the future prize amounts delivered on each play, is determined randomly before the
player ever interacts with the machine. Like the order of a shuffled deck of cards, the list of prize
multipliers is unpredictable and beyond the player’s control, and a player who lacks knowledge
as to the sequence of prize multipliers in the pools and who does not use the “prize viewer” has
no way of predicting the prize amounts for any turn until after she has “risk[ed]” her money.
That, too, makes the Torch Devices “usable” in the playing phases of a gambling activity, and
thus, gambling devices under Mo. Rev. Stat. § 572.010(4).
Defendants counter that the Torch Devices don’t involve any element of chance because
the prize viewer allows a player to see the prize amount for the very next play for each game
theme and play level, and thus the devices allow a player to know the prize amount of the next
game without committing her funds. Defendants’ argument is unavailing.
The evidence at trial demonstrated that it is impossible for a player to redeem a balance
of less than $1.00 from any Torch Device, and the prize viewer only allows a player to see the
very next prize amount, not prize outcomes two or three turns in the future. Thus, as Mr.
Friedman demonstrated at trial, a player who wagers $1.00 at the $0.25 play level and uses the
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prize may be able to determine what (or whether) she will win on the next turn, but she can’t
know the prize amount for the second, third, or fourth plays. Once she plays the first turn, she
has committed the entire $1.00. In such an instance, she has gambled the remaining $0.75
without any ability to determine what the prize amounts will be for the subsequent turns.
Even if some players might use the prize viewer to determine what the prize amount for
the next turn will be before committing their funds, the Missouri statute makes a device a
gambling device so long as it is usable for gambling. Defendants acknowledge that the prize
viewer is an entirely optional feature. Evidence at trial, including testimony from Defendant
Miltenberger himself, established that some players forego the prize viewer. A player who
doesn’t use the prize viewer can use the device for gambling in a manner that is indistinguishable
from a standard casino slot machine game. The availability of the prize viewer feature is
therefore immaterial to whether the Torch Devices qualify as “gambling devices” under Missouri
law.
Further, even players who use the prize viewer will use the Torch Devices to gamble. As
established at trial, the most common prize multiplier within the sequential pools is zero. In other
words, the majority of plays will produce a $0.00 “win amount” (or, more accurately, a loss
amount). Thus, even a player who uses the prize viewer every time will, most often, see that she
will lose her wager on the next turn. Yet the Torch Device permits her to spend the play amount
in the hopes that the next time she presses the prize viewer on the next turn, she will see a
positive prize amount. A player who does so has wagered the play amount on “outcome of a
contest of chance”—i.e., what the prize viewer will show on the next turn—that she has no way
of knowing or predicting. Thus, even for the player who knows of, understands, and uses the
prize viewer on every play, the Torch Devices are “usable” in the playing phases of gambling
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activity.
Additionally, the prize viewer only allows the player to see the next prize amount, not the
entire outcome of the game (i.e., the visual outcome). The visual outcome of the Torch Devices
is determined entirely randomly. On this point, Defendants argue that the visual outcome is only
an “entertaining display” because the prize amount is determined independently of the visual
outcome, which is “reverse-mapped” based upon the predetermined prize amount. That may be
true, but the Court is not entirely persuaded that it matters. The statute distinguishes between the
“outcome” of the game itself and the “something of value” sought by the player (i.e., the prize
amount). See Mo. Rev. Stat. § 572.010(4). A consumer who plays a spinning-reel game and
wagers $1.00 on the understanding that, if the reels show three cherries, he will win $2.00, is
gambling within the meaning of the Missouri statute. Even a player using the prize viewer has no
way of predicting the randomly generated visual outcome reverse-mapped to the prize amount.
As the Torch Devices are “usable” in such a manner, they are “gambling devices” under
Missouri law.
For all of the foregoing reasons and with the benefit of the jury’s factual determinations,
the Court finds that Torch Devices are “gambling devices” within the meaning of Mo. Rev. Stat.
§ 572.010(5). The Court declines to issue a declaration as to the term “slot machine” as the
question wasn’t explicitly submitted to the jury, and such a declaration is unnecessary to resolve
TNT’s claims.
Missouri Jurisprudence
The above analysis of Missouri law is based on a straightforward application of the plain
language of the Missouri statutes applied to the evidence presented and the jury’s factual
findings at trial on Counts I and II. But the Court’s conclusion that the Torch Devices are
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gambling devices under Missouri law is also bolstered by Missouri jurisprudence.
Century-old Missouri precedent holds that a gaming machine with a prize preview feature
is still a gambling device. City of Moberly v. Deskin, 155 S.W. 842, 844–45 (Mo. App. 1913)).
Much like the Torch Devices, the machine in Deskin had a prize preview feature showing in
advance what the player would receive on the next play. Id. at 843. The defendant argued that
each turn was a separate and independent business transaction and there was no chance involved
as the player knew in advance what he would receive for his nickel. Id. at 844. The court rejected
that theory, finding the defendant’s position “unsound” because the “contrivance” was clearly
intended to “allure” the player into continuing in the hope of a better outcome. Id. at 844–45.
Thus, as early as 1913, Missouri precedent denounced the prize viewer as a cunning attempt to
comply with the letter of the law while doing violence to the spirit and purpose of it. Id. at 844.
Torch argues that Deskin was effectively abrogated by Proposition A legalizing riverboat
gambling in 1992 and related statutes implementing Missouri’s legal gaming regulatory scheme
in 1994. Mo. Rev. Stat. § 313.004 et seq. This argument overlooks the important fact that the
current definitions of “gambling” and “contest of chance” contained in Missouri’s criminal
statute, Mo. Rev. Stat. § 572.010, haven’t changed since 1978. And Missouri caselaw is
consistent throughout history.
Deskin was decided in 1913. In 1937, the Supreme Court of Missouri cited Deskin in an
opinion referencing a 1929 statute criminalizing “gaming devices” designed for the purpose of
playing a “game of chance.” State ex rel. Igoe v. Joynt, 110 S.W.2d 737 (Mo. banc 1937).
In 1949, the Missouri Court of Appeals cited a 1939 statute with similar language. State v. One
“Jack & Jill” Pinball Machine, 224 S.W.2d 854, 856 (Mo. App. S.D. 1949). Deskin was last
cited in 1982, albeit for a different holding. Briggs v. Baker, 631 S.W.2d 948, 953 (Mo. App.
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W.D. 1982) (confirming municipal authority to regulate gaming devices).
In 1984, the Missouri Court of Appeals referred to the 1978 statutory definitions that still
exist today in Thole v. Westfall, 682 S.W.2d 33 (Mo. App. E.D. 1984). There, the court
considered machines in which “[t]he electronic circuitry of the slot machine devices is
programmed to produce, at random, images of various objects which ‘rotate’ on the screen.” Id.
at 35. “When the ‘rotation’ stops, the player is awarded ‘points’ if designated combinations of
objects are shown or highlighted.” Id. “[T]he objects that appear on the screen are determined by
the devices’ electronic circuitry and the player has no control over which combination of objects
will appear. Thus, from the player’s point of view, winning is purely a matter of luck, a matter of
chance.” Id. at 37. For those reasons, the court held that “the outcome of the games depends, in a
material way, upon the element of chance,” thereby making them “gambling devices” under
Mo. Rev. Stat. § 572.010(5).
Proposition A and its implementing legislation in 1994 merely exempted licensed
gambling from Missouri’s longstanding criminal definitions. Nothing in Chapter 313 reflects
legislative intent to abrogate the foregoing appellate decisions applying current and prior
definitions of illegal gambling, including Deskin. Also noteworthy is the fact that Deskin is still
cited in secondary sources today. § 24:148. Gaming devices, definitions and distinctions, 6A
McQuillin Mun. Corp. § 24:148 (3d ed.); § 14:14. Gambling, 2 Local Government Law § 14:14.
In short, the Court finds no basis to conclude that Proposition A and Chapter 313
abrogated Deskin. Rather, since 1913 and still today, a gaming machine with a prize viewer is
still a gambling device.
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Persuasive Authority
The Court’s conclusions above are consistent with the analyses of other courts examining
similar devices under comparable state laws. Most recently, a Tennessee chancery court
evaluated Torch’s own devices in Torch Electronics, LLC. v. Steven J. Mulroy, Case No. CH-24-
0985, 30th Judicial District of Tennessee (filed July 30, 2024). Torch initiated that lawsuit
against the District Attorney of Shelby County seeking a declaration that its devices didn’t
violate state gambling laws. In July 2025, a three-judge panel unanimously concluded that the
“No Chance Games” owned and operated by Torch in Tennessee were indeed illegal gambling
devices. (Doc. 330-1).8 The court reasoned that the “key distinctions” from ordinary slot
machines, including the prize viewer feature, made “no material difference in the machine’s
character.” (Id. at 12). Rather, the “future uncertainty” of prize amounts not displayed by the
prize viewer made Torch Devices “contingent on chance” and thus illegal gambling devices
under Tennessee law. (Id.).
Missouri and Tennessee gambling laws are nearly identical in all material respects.
Tennessee’s criminal statute defines a gambling device as one where a player “risk[s] anything
of value for a profit whose return is to any degree of contingent on chance.” Tenn. Code Ann.
§ 39-17-501(2) (emphasis added); cf. Mo. Rev. Stat. § 572.010 (defining gambling to include
“risk[ing] something of value upon the outcome of a contest of chance or a future contingent
event not under [the player’s] control or influence”).
In the chancery court, Torch advanced the same argument Defendants press here, i.e., that
the prize viewer eliminates chance and makes the devices legal. (Id. at 10-12). The court rejected
that theory, reasoning that “moving a player’s expectations some spins into the future does not
8 TNT filed the Chancery Court’s order as supplementary authority in this case at Doc. 330. Record
citations in this section refer to the ECF docket and page headers in this case.
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alter the fundamental nature” of the devices as illegal gambling devices. (Id. at 11). The court
reached that holding despite the fact that the prize viewer on the Torch Devices in Tennessee
(unlike the Torch Devices in Missouri) allowed the player to see not only the very next prize
amount but also future plays up to his credit balance. (Id. at 4-5). Additionally, Defendant
Miltenberger testified in that case that the devices at issue there did not contain random number
generators, whereas the Torch Devices in this case indisputably contain randomness in the start
indices. (Doc. 330-2 at 5).
Other courts have reached similar conclusions involving games like Torch Devices. The
Supreme Court of Iowa held that devices manufactured by Banilla were illegal notwithstanding
the prize viewer. Banilla Games, Inc. v. Iowa Dep’t of Inspections & Appeals, 919 N.W.2d 6, 17–
19 (Iowa 2018). The Supreme Court of North Carolina evaluated machines similar to Torch’s and
recognized that, “chance controls plaintiffs’ game … . Accordingly, just as is the case with a
traditional slot machine, the return to the player in plaintiffs’ game is dependent on chance.” Gift
Surplus, LLC v. State ex rel. Cooper, 868 S.E.2d 20, 29 (N.C. 2022) (“Gift Surplus’s kiosks …
offer five similar games, all featuring reel-spinning video resembling a slot machine.”).
Examining another Banilla device with a “pre-reveal,” the Ohio Court of Appeals called
the feature a “façade” intended to “take an otherwise illegal game outside of the scope of” state
laws that make such devices illegal. Mayle Bingo Co., L.L.C. v. Ohio Dep’t of Pub. Safety, 152
N.E.3d 1237, 1242 (Ohio Ct. App. 2020). Additionally, the Florida Court of Appeals deemed
devices with a “pre-reveal” illegal, reasoning:
While it is true that the user is advised of the outcome of the game at hand ahead
of time through the preview feature, the user cannot predict that outcome until it is
randomly generated and then displayed by the machine. Nor can the user predict
the outcome of Game 2 while playing Game 1.
Gator Coin II, Inc. v. Fla. Dep’t of Bus. & Prof’l Regulation, 254 So. 3d 1113, 1118 (Fla. Dist. Ct.
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App. 2018). Finally, an appellate court in Pennsylvania similarly found that machines like Torch’s
were illegal gambling devices, reasoning:
This Court cannot ignore the reality that chance ultimately determines losing
outcomes, winning outcomes, and the different prize levels which are programmed
into the [machine’s] finite pool for random sequential delivery . . . [H]ere a large
random element is always present, and it predominates . . . [T]he [machines] are
games of chance.
Gracie Techs., Inc. v. Commonwealth, No. 627 C.D. 2019, 2020 WL 1231395, at *2 (Pa. Commw.
Ct. Mar. 13, 2020).
While the laws and the particular devices in the foregoing cases may differ in some
respects, the fact remains that “pre-reveal” gimmicks have been universally rejected as a basis to
exempt similar games from state gambling laws. This trend reinforces the Court’s conclusion that
the prize viewer feature in Torch Devices does not except them from Missouri gambling laws.
Torch has cited no authority in America where a court found that a “pre-reveal” feature makes a
gaming device legal. Here, the evidence overwhelmingly demonstrates that the prize viewer
doesn’t change the nature of Torch Devices and that they are still games of chance and thus
gambling devices.
Torch’s Opposition
Torch asserts several theories in opposition to Count VII. On familiar ground, Torch
urges the Court to abstain pursuant to Younger and Burford, now adding for the first time that a
declaratory judgment would violate Missouri’s Tenth Amendment right to regulate gambling as a
state law issue.
As discussed in the Court’s summary judgment order (Doc. 312), Torch sought a state
court declaration on the legality of their devices in Torch Electronics v. Missouri Department of
Public Safety, 694 S.W.3d 548 (Mo. App. W.D. 2024). That case was dismissed without a merits
determination. One state criminal case has resulted in a conviction against Integrity Vending in
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Platte County, though no appeal was taken.9 Other cases have been dismissed or have stalled
during the pendency of this case.
The Court has wrestled with principles of comity at each stage of this case and discussed
the same in its orders at the summary judgment stage, initially abstaining but later recognizing
the necessity of resolution due to ongoing delay, inconsistent outcomes, and resulting uncertainty
in the state system. (Doc. 332). The Court need not address Torch’s new Tenth Amendment
argument separately, as it is foundational to the doctrines of abstention.
Younger Abstention
Younger abstention requires federal courts to refrain from enjoining a parallel pending
state court criminal proceeding except under special circumstances such as a bad-faith
prosecution or when a criminal statute is patently unconstitutional. Courthouse News Serv. v.
Gilmer, 48 F.4th 908, 913 (8th Cir. 2022); Wassef v. Tibben, 68 F.4th 1083, 1087 (8th Cir. 2023)
(referring to Younger v. Harris, 401 U.S. 37, 41 (1971)). The Court initially cited Younger in its
order dismissing Count VII in light of pending state court cases. On closer examination, the
Court concludes that abstention under Younger is not warranted.
The Court is aware of one pending criminal prosecution involving the issues presented
here: that of Torch customer James McNutt, pending in Franklin County since 2020.10 McNutt
owns Midwest Petroleum and is charged with three counts of possessing an illegal gambling
device (i.e., Torch Devices) on the premises. But the classic Younger situation is when a litigant
“runs to federal court to cut off an impending or actual state-court proceeding that is unlikely to
9 State v. Integrity Vending, Case No. 19AE-CR00948-01, filed April 30, 2019, 6th Judicial Circuit
of Missouri (Platte County).
10 State v. McNutt, Case No. 20AB-CR03465, 20th Judicial Circuit of Missouri (Franklin County),
filed Nov. 16, 2020.
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go well.” Courthouse News Serv. v. Gilmer, 48 F.4th at 914. That is not the scenario here. Torch
is not on trial in Franklin County. McNutt is not the federal plaintiff asking this Court to enjoin
his criminal case. This Court’s declaration isn’t binding on the Franklin County trial court.
“Abstention is not in order simply because a pending state-court proceeding involves the same
subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). Torch itself does not
invoke the McNutt case or any other criminal gambling case as a basis for Younger abstention.
Additionally, Younger has been extended to certain types of state civil proceedings “akin
to a criminal prosecution.” Id. In deciding whether a civil case is “akin to criminal prosecution,”
courts consider: (1) Was the action commenced by the state in its sovereign capacity? (2) Was
the proceeding initiated to sanction the federal plaintiff for some wrongful act? (3) Are there
other similarities to criminal actions, such as a preliminary investigation culminating in the filing
of formal charges? Wassef, 68 F.4th at 1088. If so, then to determine whether Younger abstention
applies in a civil case, the Eighth Circuit applies the Middlesex factors. They are: the presence of
(1) an ongoing state judicial proceeding that (2) implicates important state interests and (3)
provides the federal plaintiff adequate opportunity to raise federal challenges, and (4) does not
involve an extraordinary circumstance counseling against abstention. Id. (citing Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432- 35 (1982)). Using these tests, the
Court again concludes that Younger doesn’t apply here.
As the notable underlying state case justifying Younger abstention, Torch solely relies on
its own final and closed civil case that was not remotely akin to a criminal prosecution, where the
Missouri Court of Appeals declined to reach the merits of Torch’s suit for declaratory relief,
reasoning that it wasn’t the proper vehicle for interpreting state criminal law. Torch Elecs., 694
S.W.3d at 555. Though Torch urges the same result here, that case isn’t binding on this Court or
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relevant to the Younger analysis using the foregoing factors. It only underscores the persistent
elusiveness of state court resolution.
The Court is aware of three pending civil cases that continue to languish in state court.
None satisfy the Younger and Middlesex factors for civil proceedings akin to criminal
prosecution. In Henry County, a suit in equity aiming to shutter Clinton Convenience as an
illegal gambling house has been pending since 2020.11 This case doesn’t involve TNT or Torch.
In St. Louis County, a taxpayer derivative lawsuit filed by TNT’s owner against Torch, Midwest
Petroleum, and Crawford County also remains pending since 2020.12 That case was not
commenced by the state to sanction this federal plaintiff for a wrongful act. In Cole County,
Torch has appealed a decision upholding the City of Springfield’s non-renewal of Torch’s
business license pursuant to a new ordinance prohibiting amusement devices offering monetary
prizes.13 That case was commenced by Torch and doesn’t involve the legal issues presented here.
In sum, these cases don’t justify abstention under Younger, and the parties have not
alerted the Court of any other pending litigation warranting Younger analysis.
Burford Abstention
Burford abstention applies “when a state has established a complex regulatory scheme
supervised by state courts and serving important state interests, and when resolution of the case
demands specialized knowledge and the application of complicated state laws.” Doe v.
McCulloch, 835 F.3d 785, 788 (8th Cir. 2016) (citing New Orleans Pub. Serv., Inc. v. Council of
11 State ex rel. Shields v. Ranza Inc., Case No. 20HE-CC00064, 27th Judicial Circuit of Missouri
(Henry County), filed Nov. 18, 2020
12 Turntine v. Torch Elecs., LLC., Case No. 20SL-CC03000, 21st Judicial Circuit of Missouri (St.
Louis County), filed June 2, 2020.
13 Torch Electronics, LLC v. City of Springfield, Case No. 25AC-CC00548, 19th Judicial Circuit of
Missouri (Cole County), filed January 23, 2025; Case No. WD88364, Missouri Court of Appeals,
Western District, filed October 1, 2025
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City of New Orleans (NOPSI), 491 U.S. 350, 361 (1989), referring to Burford v. Sun Oil Co., 319
U.S. 315 (1943)). “Burford is concerned with protecting complex state administrative processes
from undue federal interference.” Id. (quoting NOPSI 491 U.S. at 362).
This Court considered Burford at the summary judgment stage but found it inapplicable
because, “[a]lthough Missouri’s gaming regulations are complex as applied to licensed entities,
the question presented in this case does not require specialized knowledge or the application of
complicated state laws.” (Doc. 312 at 41); TNT Amusements, 2025 WL 947506, at *19 n.33.
Torch urges the Court to reconsider, arguing that this is a complicated area of state law, as
demonstrated by failed attempts at resolution in state court. This argument is unpersuasive if not
illogical. The jury took less than two hours to find Torch’s commercial representations false. In
Platte County, a state trial judge considered evidence and arguments on these issues and found
Integrity Vending guilty of promoting gambling.14 In Henry County, a judge found probable
cause to support a criminal information, though the case was later dismissed for reasons
unknown.15 The issues presented here do not involve specialized knowledge or complicated state
laws.
The closer call here is whether a declaration by this Court would offend principles of
comity. Torch cites Johnson v. Collins Ent. Co., 199 F.3d 710 (4th Cir. 1999), where the Fourth
Circuit admonished a district court for failing to abstain in a case involving the interpretation of
state gambling laws. There, however, the very issues before the district court were concurrently
pending before the state supreme court. Id. at 721. By contrast here, six years have passed since
14 State v. Integrity Vending, Case No. 19AE-CR00948-01, filed April 30, 2019, 6th Judicial Circuit
of Missouri (Platte County).
15 State v. Hussain, Case No. 20HE-CR00629-01, 27th Judicial Circuit of Missouri (Henry County).
This case is no longer accessible on CaseNet.
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the Missouri Gaming Commission declared Torch-like devices illegal, and five years have
passed since Integrity Vending was convicted and McNutt was charged. Absent appellate
precedent, however, Torch continued to mischaracterize its devices during that period, according
to the jury.
“Where timely and adequate state-court review is available, a federal court sitting in
equity must decline to interfere with the proceedings or orders of state administrative agencies:
(1) when there are ‘difficult questions of state law bearing on policy problems of substantial
public import whose importance transcends the result in the case then at bar’; or (2) where the
‘exercise of federal review of the question in a case and in similar cases would be disruptive of
state efforts to establish a coherent policy with respect to a matter of substantial public
concern.’” NOPSI, 491 U.S. at 361 (emphasis added). The Court finds these characteristics
lacking here. Timely state court review has proven unavailable except in the Integrity Vending
case, which Torch deems inadequately precedential to curtail its own operations. There are no
state administrative orders or proceedings implicated. The state law question is not particularly
difficult, but there is no statewide effort to establish a coherent policy due in part to Torch’s
tactics, as evidenced in the summary judgment record.
Given the unique facts of this case, the Court continues to believe that Burford does not
compel abstention.
Wilton/Brillhart Abstention
Under the Declaratory Judgment Act, a district court “may declare the rights and other
legal relations of any interested party seeking” a declaration.” 28 U.S.C. § 2201(a).
Wilton/Brillhart abstention refers to a district court’s discretion to dismiss a declaratory
judgment action when the controversy would be better settled in state court. EMCASCO Ins. Co.
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v. Walker, 108 F.4th 634, 637 (8th Cir. 2024) (citing Wilton v. Seven Falls Co., 515 U.S. 277
(1995), and Brillhart v. Excess Inc. Co. of Am., 316 U.S. 491 (1942)).
The scope of a court’s discretion differs depending on whether a parallel state court
action is pending. Lexington Ins. Co. v. Integrity Land Title Co., 721 F.3d 958, 967 (8th Cir.
2013). If so, then the court enjoys broad discretion to abstain from its “otherwise virtually
unflagging obligation” to exercise the jurisdiction conferred by Congress. EMCASCO, 108 F.4th
at 636. If not, then the court’s discretion is narrower and should be exercised according to a six
factor test: (1) whether the declaratory judgment sought will serve a useful purpose in clarifying
and settling the legal relations in issue; (2) whether it will terminate and afford relief from
uncertainty, insecurity, and controversy giving rise to the federal proceeding; (3) the strength of
the state’s interest in having the issues decided in state court; (4) whether the issues raised in the
federal action can be more efficiently resolved in the court in which the state action is pending;
(5) whether the federal action would result in unnecessary entanglement between the state and
federal systems due to overlapping issues of fact or law; and (6) whether the federal action is
being used merely for “procedural fencing in a race for res judicata.” Lexington Ins. Co., 721
F.3d at 968.
As no parallel proceeding is pending, the Court considers the foregoing six factors and
finds that they weigh against abstention. The Court’s declaration on this Count VII aims to
clarify and settle the legal issues presented in this case and put an end to the longstanding
uncertainty giving rise to TNT’s claims. While the Court acknowledges Missouri’s state
interests, the record demonstrates that these issues have not found efficient resolution in the state
system in any manner Torch considers binding, notwithstanding the 2019 opinion of the Gaming
Commission and the 2020 conviction of Integrity Vending. The Court’s limited declaration here
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aims to avoid unnecessary interference with state court proceedings of any nature, simply
applying Missouri law to the facts found by the jury. And TNT’s successful federal claim refutes
any inference of procedural fencing. These factors support the Court’s exercise of jurisdiction
under 28 U.S.C. § 2201(a).
It bears noting that Torch itself didn’t advocate for abstention at any point through the
summary judgment phase. Rather, the Court raised it sua sponte initially in Torch’s favor, after
which Torch opened the door for reconsideration on its own motion. Torch now argues that the
Court should abstain to avoid “the difficult position of predicting how the Missouri Supreme
Court would resolve the conflict,” and that such a declaration would be “duplicative and
uneconomical” in light of the Missouri Supreme Court’s denial of transfer in Torch’s own
declaratory judgment appeal in state court. Capitol Indem. Corp. v. Haverfield, 218 F.3d 872,
875 (8th Cir. 2000) (prescribing abstention where a parallel state court action was pending).
But Torch’s case didn’t resolve the merits, and the state decision doesn’t dictate this Court’s
authority under 28 U.S.C. § 2201(a). The issues here are straightforward, and the Court has no
trouble predicting how the Missouri Supreme Court would rule, as many sister states have, but
no such case is pending. Applying the six-factor test, the Court concludes that Wilton/Brillhart
abstention is not warranted here.
Scope of the Court’s Declaration
Finally, Torch contends that an explicit declaration of illegality of Torch Devices would
constitute an advisory opinion lacking any concrete justiciable “case or controversy” touching
the legal rights and relations of the parties in this case. It argues that any declaratory relief the
Court grants must be limited by and consistent with the jury’s findings on TNT’s unfair
competition claims. The Court’s legal conclusions herein, informed by the expert evidence and
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the jury’s factual findings, comport with these principles. The jury readily found to be false at
least one of Torch’s statements that chance played no role in its games or that the “device does
not fit any definition of a “gambling device” in the state of Missouri and is not prohibited for use
by you.” Given this central fact – i.e., that Torch Devices do indeed involve an element of
chance – the devices clearly meet the definitions of gambling device in § 572.010, as alleged in
Count I of TNT’s complaint. (Doc. 1 at 35). Necessarily, then, outside of a licensed casino, the
devices are prohibited in the state of Missouri – i.e., they are illegal. This conclusion is far from
advisory; rather, it is central to the controversy, as reflected in TNT’s complaint and throughout
the parties’ briefing in this case. The Court has declared no more than necessary to resolve the
parties’ dispute.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Torch Devices
marketed and distributed by Defendants are “gambling devices” under Mo. Rev. Stat. § 572.010
and therefore are illegal under Missouri law when operated outside a licensed casino. (Doc. 423).
Dated this 13th day of February 2026.
_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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