 This is fine, we'll start streaming live, thank you. Next day, good afternoon. Today is Wednesday, June 7th, 2023. And this is an adjudicatory hearing for the Massachusetts Gaming Commission relative to the alleged non-compliance event, the Penn Sports Interactive LLC with Massachusetts General Law Chapter 23N, Section 4C, 205-CMR, 256.01, Subsection 1, 205-CMR, 205-CMR, 256.02, Subsection 1, and 205-CMR, 256.04, Subsection 1, Subsection 6A, Subsection 6C, and Subsection 6D. I'll refer today to Penn Sports Interactive LLC as PSI. My name is Kathy Judson, I'm the Chair of the Commission and I'm joined today by my colleagues, Commissioners Eileen O'Brien, Brad Hill, Nikisha Skinner, and Jordan Maynard. The entire commission will preside over the hearing and decision of this matter. This hearing will be conducted in accordance with 205-CMR, 101.01, Massachusetts General Law, Chapter 30A, Sections 10 and 11, and 801-CMR, 1.02, the Informal Fair Hearing Rules. This hearing, as I mentioned, is being conducted via remote collaboration technology. Before we begin, I'd like to explain the process that was governed this proceeding. First, a notice of hearing was provided to PSI in advance of today's hearing. It identifies the election on compliance incident that will be the focus of the commission's attention at this hearing and the relevant statutes and regulations. A pre-hearing conference was also conducted. Resolute to Massachusetts General Laws, Chapter 23N, Sections 4 and 16 and 205, CMR 232, the commission may hold this adjudicatory hearing and at the conclusion of the hearing may decide to issue a civil administrative penalty imposed conditions on PSI's license, suspend PSI's license, revoke PSI's license, reprimand PSI, and or assess if I'm on PSI. At the conclusion of my opening comments, this proceeding will commence with a presentation of the evidence in this matter. Specifically, the commission will first call Zachary Mercer, IEB Enforcement Council and any other witnesses listed on the Notice of Hearing of Witness List. PSI may ask questions of any witnesses who testify. PSI will then be called upon to make a presentation and to call additional witnesses if any. Any commissioner may question any witness who is testifying at any point during or after their presentation and PSI may raise any objection it desires at any time. However, the basis for all objections must be clearly stated. Finally, at the conclusion of all the evidence, PSI will be provided an opportunity to make a closing statement to summarize its view of the evidence. And before we begin, I understand that there are pre-marked exhibits that have been prepared in advance of this hearing. Those exhibits are identified on the exhibit list that has been circulated. They are as follows. Exhibit one, Investigations and Enforcement Bureau Sports Wagering Review Incident Review Report dated March 14, 2023, including Addenda. Exhibit two, the notice of June 7th, 2023, Exhibit three, Declaration of Christopher Soriano Esquire dated May 23rd, 2023. Exhibit four, Exhibit A to the Soriano Declaration. Exhibit five, Exhibit B to the Soriano Declaration. Exhibit six, Exhibit C to the Soriano Declaration. Exhibit seven, Exhibit D to Soriano Declaration. Then Exhibit eight, we have Declaration of Eric Shaper dated May 25th, 2023. Exhibit nine, is the Appendix eight Shaper Declaration. Exhibit 10. I have a, I think it's Appendix B to the Shaper Declaration or is it Caitlin or Todd? Is it the Appendix C? The Appendix B is in the document, is in the Declaration itself, so it's not a separate exhibit. Exhibit 10 is Appendix what? I'm sorry, Caitlin, I can't quite hear you. Sorry, Appendix B is actually in the Declaration itself, which is why the exhibits skip A, C, D. Thank you, I didn't notice that when I was doing Appendix C is Exhibit 10 to the Shaper Declaration. Exhibit 11 is Appendix B to the Shaper Declaration in the file folder. Are there any objections to Exhibit one through 11 being marked and entered into evidence? Not on PSS Park. Thank you, Mr. O'Hara, nice to see you and Mr. Mercer. No objection, Madam Chair. Thank you. Thank you, those of us- Excuse me, Chair, may I just jump in on process? Just procedurally, the IAB is not a party to our witnesses, but- I understand, I realized it, but I'm pleased that Mr. Mercer has no objections in any case. Thank you. Thank you, those exhibits shall be admitted into evidence and in order to maintain a clean record, I ask that documents are referred to by the exhibit number. At this point, I will ask if PSI would like to stipulate to Exhibit one, the IAB sports wagering non-compliance incident review report, Mr. O'Hara. Yes, we do, so stipulate, Madam Chair. Thank you very much. And if PSI would like to have any additional documents entered into that evidence during the course of the hearing, I would ask that they be properly introduced and marked course. Thank you. All right, I will add that no final decision will be made at the conclusion of the public portion of the hearing. Instead, at the conclusion of the proceeding, the commission will privately deliberate and ultimately issue a written decision. And at any point during the commission's deliberations, it determines that additional information, testimonial, or documentary evidence is desirable. It reserves the right to ask for such evidence prior to a final decision being made. We will now swear all the witnesses in. Anyone who will be testifying at this proceeding, please raise your right hand, okay? Do you solemnly swear that the testimony you will provide before the commission at this proceeding will be the truth, the whole truth, and nothing but the truth? That's it. Okay, and then I'll note for the record that you've all responded in the affirmative. Before we begin, does PSI, Mr. O'Hara, do you have any preliminary issues or objections? I do not, Madam Chair. Okay, thank you. With that, I will now turn to Mr. Mercer who said, exhibit one, the investigations and enforcement bureau, sports wagering non-compliance incident review report, dated March 14th, 2023. Thank you, Zach. Thank you, Madam Chair. Good afternoon, Chair and commissioners. On Saturday, March 12th, 2023, the IEB was made aware of a promotion on the Barstool Sportsbook and web-based application, offering a promotion titled, Big Cats Can't Lose Barley. And conducted a review limited to the Can't Lose Barley language. Barstool Sports Inc. is a wholly-owned subsidiary of PSI's parent company, Penn Entertainment. Big Cat is a reference to Dan Katz, a Barstool personality and podcast host. And the Can't Lose Barley is a regularly featured wager on the Barstool app. The Parley, the Parle, oh, I apologize. The Parley promoted involved four NCAA basketball games, Ohio State versus Michigan State, University of Alabama Birmingham versus North Texas, Ohio versus Toledo, and Indiana versus Maryland. All four of these games were played on March 10th, 2023. The IEB also reviewed documentation showing that David Portnoy, a fellow Barstool personality, shared a photo of his pet slip from the Barstool app on Twitter at 1.36 p.m. on March 10th, 2023, indicating that he had wagered $13,458.70 on the Can't Lose Barley. According to that posted slip, the bet was placed shortly after 11 a.m. on March 10th, 2023. On March 12th, 2023, Chris Soriano, Vice President and Chief Compliance Officer for Penn Entertainment Inc., contacted the IEB director and acknowledged the promotion. On March 13th, 2023, in a further discussion with the IEB, Mr. Soriano indicated that Portnoy had ended and was no longer being offered. Penn also indicated that it would voluntarily refrain from promoting any Can't Lose wagers in Massachusetts pending the consideration of this matter. Thank you. Commissures, do you have questions for, perhaps I should start with Mr. Alvano, would you like to ask any questions of Mr. Mercer? I do not have any questions, thank you. Thank you. Commissures, do you have questions for Mr. Mercer? For clarification or otherwise? I'm hearing none. So, Mr. Alvano, do you intend to present witnesses today? Thank you, Madam Chair. Perhaps a preliminary introduction remarks of any sort and then whatever evidence you wish to present. Thank you. Thank you. I would, with the commission's permission, request that the declarations of Mr. Soriano and Mr. Schaefer be accepted as the direct examinations of those two witnesses. Stop there, see if that's okay. Commissures, we have as part of the record as exhibits and you've had a chance to review them. I believe that what Mr. Alvano is requesting is absolutely permissible. We also have the opportunity to question both Mr. Soriano and Mr. Schaefer are here. So if we accept that as direct evidence, now we have the opportunity to ask questions of the two witnesses. If that makes sense to you, Mr. Alvano. Yes, that's actually what I was gonna propose that if the declarations are accepted as direct, as their direct examination, the witnesses are available here for any questions the commissioners may have. And if I may, I do have a sort of overview opening that I could, if it's permissible, I'd give at this time. I think that makes a great deal sense for you to give your opening remarks to set the stage and then we can go forward with any questions that the commissioners may have. Maybe that would be helpful. Thank you so much. Thank you. So we're here today to ask the commission to rule that PSI's March 2023 offering of the big cats can't lose parlay did not violate the statute or the regulations cited in the notice of hearing. As and nor did Mr. Portnoy's March 10 tweet constitute any type of a regulatory violation we submit as our pre-hearing brief explain in order to make those determinations, the commission has to analyze the documents the can't lose parlay or CLP name in context in context through the eyes of a reasonable consumer. We respectfully submit that no reasonable person who saw a parlay with long shot eyes that required a player to win not one, not two, not three, but four bets or lose the parlay. No reasonable person would have concluded that they were engaging in a risk-free sure thing type of bet. As the commission is also aware from our pre-hearing submission, our position of course is that as a matter of state law and constitutional law, there was no regulatory violation. But you also know that as was just stated that after this matter was brought to the attention of PSI no more since then, no CLP offerings have been made. And as we stated in our pre-hearing submission, we're willing to address the commission's concerns about the CLP by permanently terminating the offering, notwithstanding our position which has been clear that there has been no regulatory violation. If I could, I'd just like to set out the context that I think is relevant to the commission's determinations here. And I will not belabor point that I know you're already familiar with, at least to my best not to. The CLP is a humorous satirical reference to Mr. Dan Katz's reputation as an awful better. Exhibit D to Mr. Soriano's declaration which is exhibit seven in this hearing. It has some examples of public statements Mr. Katz has made on this subject. He has said he is a quote terrible, terrible gambler, a quote loser who doesn't win a gambling and that quote no one should ever listen to his advice. We also have some consumer data on this issue that we submit. As of March 20, 2023, there were 122,428 unique CLP players. 55% of those unique players were repeat betters. And of those repeat betters, 90% had lost their first bet. And that I would suggest is compelling evidence that betters who had hypothetically thought that this was a sure thing and lost. Surely 90% of them would not have come back for a repeat bet. That I would suggest is not surprising given again, the long shot odds that are disclosed in the need to win multiple bets. I should add here that the Barstool Sports Book app which is of course available to all public, that their menu, that menu has a link to contact support. And if you hit that link, you can either call, chat or email questions of any questions you have about the betting process. They also make available and through that link, there are articles under the topic, how to bet. And one of those articles is about a custom parlor. What is custom parlor? And it tells players that a parlor bet combines two or more individual wagers into one bet that better must pick all games correctly in order to win. And it also says parlors are a riskier betting option, but the payouts are much higher than a straight. There also is some historical context that is relevant, he suggested to the issues before the commission. The CLP has been offered in 15 jurisdictions. Six of those jurisdictions requires submissions to the regulators of the terms and conditions of each promotion. And four of those six require pre-approval of each offer. Prior to March, 2023, no regulatory authority had objected to any of the CLP offerings. And PSI has no record of any consumer complaints or consumer confusion about the terms of its offerings. My point here is not that the commission should find no violation here because, oh, there's 15 other jurisdictions who work that allow the CLP. My point is that, as someone born and bred in Massachusetts, Massachusetts residents are not less sophisticated, less reasonable, or less able to ascertain that if you have to win four legs of a long shot bet, it is not a sure thing. I think one might go further and say, a reasonable person would understand that if a gaming company was saying, here's a bet that you can't lose. And making that assertion as a factual matter rather than a satirical reference, any reasonable consumer would say, well, that company will be out of business in a day or two. It's just not the nature of the wager. We also have submitted evidence of the American Gaming Association's disposition of a complaint filed by the National Council of Problem Gaming about CLP. And as the exhibits to Mr. Soriano's declaration show, that complaint was closed in March of 2021 with no action taken. We've also offered evidence, and Mr. Schaefer can address this as his report there, his declaration, that social media discussions about the CLP demonstrate that those who post are familiar with bar stool and Danfax, and which is itself strong evidence that they actually are, for lack of a better term, in on the job. Mr. Schaefer's declaration explains the social media analysis that his firm engaged in, first collecting 15,000 over 15,000 tweets, then retrieving from that large data set a statistically significant sample and finding that 99% of those posts were from users who were familiar with at least one bar stool entity, and almost all were familiar with Mr. Schaefer's. The last thing I'd say on this point, if I may, is that although here we're dealing in a highly and appropriately regulated area, the legal standard that applies here is the same that applies when we look at signs we've all seen for things like the world's best pizza, buffalo wings for sale that don't contain any buffalo meat, or the couple of cases among the cases we cited that held that no reasonable member of the public would think that Captain Crunch berries are actually made of berries, or that fruit loops are actually made with fruit. The point I'm trying to convey here is that viewed in context, no reasonable person would take CLP as a factual assertion that this is a risk-free or reduced risk wager. Finally, if I may, I know that there's also been referenced to Mr. Portnoy's tweet. First of all, everything in the tweet is correct. There's no false statement in the tweet. It does contain, the screenshot contains the responsible gaming message. And of course, anyone who was interested in the program should go to the Arsenal Sportsbook page and get the odds and the description of the nature of that. He tweeted all of the amount that he'd bet. The amount he'd bet was permissible for a man of his means. And on that point, for Mr. Portnoy to tweet to his followers that he has made a $13,000 bet, it is an understatement for me to say that Mr. Portnoy's followers have often seen his references to his substantial wealth. So there would be no, I will submit, no risk of a misunderstanding on the part of his followers that this is a wealthy man who's made a $13,000 bet that I can't make, and that's his personality. The other thing I'd like to add on this is that there is a lot of social media by gaming companies that reference big bets. That MGM is posted about Mattress Mac winning bets from $1 to $10 million. The M-Duel has a big bet alert, a mega bet alert, Caesar Sportsbook has social media posts about the amount of people's winnings. So to the extent that the concern here is about the effect of gaming companies or social media, including the amount of a bet, I would here too just respectfully submit, that's not a regulatory violation at this point. It may, if that is the source of concern for the commission, it may be a subject worthy of more study and ultimately rulemaking. But for the reasons I've stated, we submit that it is not and was not a regulatory violation. And thank you for letting me go on. And at this point, I'll offer the witnesses for any questions the commission may have. Thank you, Mr. Obama, commissioners. We have Mr. Soriano and Mr. Shaper here. The exhibits are now directly put into evidence for any questions you wish to pose. And then of course, Mr. Alfonso will also address any questions you have. We can circle back to Mr. Mercer appropriately. Necessary. Commissioner O'Brien. Thank you, Madam Chair. I believe, Attorney Soriano, I'm gonna ask you a couple of questions about the submission in particular relating to the 2021 AGA review by specifically direct your attention. There's a summary of the complaint that was brought to their attention in which it says that the complainant did reach out to the company about the complaint prior to going to the AGA. And then there's a section that says, if yes, did you receive a response? And I'm not seeing that you guys directly responded or that there was something attached. I'm wondering if you can clarify for me whether anything was actually attached in that. Yes, good afternoon, Commissioner O'Brien. Can you hear me okay? I can, yep. Okay, yeah, I just wanted to make sure that our audio is working here. We're all in the same room, but using different mics. So, your references to the documentation related to the AGA complaint, is that correct? I just wanna make sure I had that in front of me. I would say, Madam Chair, I'm sorry, Commissioner O'Brien, while I'm looking for the documentation, we certainly have had communication with the NCPG regarding a number of issues. And looking at the specific documents, have you contacted the company directly? The answer is yes. And if yes, did you receive a response? To my recollection, this was a discussion that we had with the National Council on Problem Gaming with Mr. White. I do not recall, as I sit here now, any formal back and forth. We, again, speak with lots of responsible gaming organizations on a regular basis, including the NCPG, we're members of the NCPG. And I do recall having conversations with the NCPG regarding this. I do not recall us having a formal written back and forth with the NCPG on this. Okay. I want to make sure I wasn't missing anything. And then in your response in that, and I think for the record, I'm looking at what's exhibit three, your declaration and the attachments. There is an email from you back to the AGA dated Thursday, February 25, 2021 at 11.56 AM. Do you have that? I have that for sure. Yes. And you write in that paragraph where you turn the page, basically it starts off with the next page. As an initial matter, we are not currently offering the Can't Lose Parley. Did I read that correctly? That's correct. Okay. So the same representation has been made to us now. And one of the questions that I have for you is, it seems like some of the response in 2021 was to point out you were no longer offering that. And yet we get to 2023, it's being offered again. And so can you explain why it went from, we don't offer this February 25, 2021 to it being offered again? Yeah. Thank you, commissioner. To be clear, we wanted to make it out that at the moment in time, when we were sending this information back to the AGA, there was no active Can't Lose Parley that was being offered. And so there was no immediacy to us either deciding to terminate it or take steps that were required at that time that may have been prudent at that time because it was not an active wager at that time. And so we wanted to make clear that that was the case. We have offered it since that time. We've offered it obviously in the matter that's here. We did offer it subsequent to the discussions with the AGA but we did wanna make it clear at that time that there was no active Can't Lose Parley that we had running. And the moment, I don't think we had one that was in the near term that we expected to make here. Certainly when I reached out to the IEB, we had discussions. We certainly have suspended it based on feedback from the commission. And again, as we offer it in conjunction with this matter, we'll stop using it entirely going forward if that's the commission's preference. So that's one of my questions really was there's a representation being made. Well, we're not doing it now we've stopped but seeing that you stopped in 21 restarted, I'm looking for a little more certainty on this offer here of whether we agree or agree to disagree on whether or not you violated the reg that the intention of the licensee and their branding officials, et cetera, is to not continue to offer something that says Can't Lose Parley. That's correct, Commissioner. I'll make that representation and we would sign a documentation in the form of an order or likewise that we will permanently seize using it. And then I don't know if anyone has follow-ups on that Madam Chair. I had one other question I wanted to ask but I'll certainly defer people have questions to follow up. For sure it's follow-up on this line of questions for Mr. Sariano. Mr. Sariano, just with clarification, can you remind me and the questioners what the AGA concluded with that complaint? Yeah, I'm happy to, Chair. Good afternoon. The AGA process is essentially two-fold that the process that's followed by the AGA Code Compliance Review Board is essentially two-fold. When a complaint is made to the Code Compliance Review Board, the company against whom the complaint is filed has the opportunity to provide a response. And that's the documentation that we provided in the record. If the complainant is dissatisfied with the response, the complainant then has the opportunity to take the complaint to the full Code Compliance Review Board of the AGA and seek a written disposition by the Code Compliance Review Board. In this case, the complainant did not seek that for the review. And so the disposition, I don't want to use the term disposition, Chair, because I don't want to mislead about what it might be. It is a summary by the AGA of what's at place. And that is, as the exhibit A to my declaration, which is just for purposes of the record, is that six? I just want to make sure we're referring to things correctly. That is the, and I'm having flashbacks to my deposition days now. But I believe it's exhibit six, which is a summary prepared by the AGA, but that is not a, for lack of a better term, Chair, a ruling by the Code Compliance Review Board because the matter was not taken to the full board. I hope that clarifies. I apologize. It's exhibit four for the record. Say I... And that's all that the AGA issued in this connection with this? That's correct, Chair. Exhibit four is the AGA is essentially the closeout of the matter. Thank you. That's very helpful to me. I understand now. Okay. Other questions on this slide? And actually, Chair, Commissioner O'Brien would yield if you'd like to go to a different line of questioning and at this point, okay, Commissioner O'Brien. Certainly. I don't know whether, who is the appropriate person to respond to this query, but the data that you submitted in terms of pulling tweets and trying to pull social media to make a point that the satirical nature of the can't lose representation was obvious. If someone can speak to the concept that the non-sophisticated person or the person who loses is not going to likely maybe out their losses and there's an embarrassment factor. So can you speak to sort of the statistical relevance of what you're submitting in that regard? I mean, I'm sitting there, I'm listening to your points in terms of saying, well, this was obvious and here's some social media analysis to show that I'm pulling tweets that the frequent users have showed that it's a joke. But can, is there any sort of statistical analysis about how many of the betters were tweeting in that regard, any connection to it? If I may, I think Mr. Schaefer is, I think the question you're asking relates to Mr. Schaefer's work. Yes. And I'll let him discuss whether that's, your question is in or outside the scope of what he did. So, if I can turn to Mr. Schaefer. Sure. So, do you mind just rephrasing the question? I wanna make sure I'm staying in my wheelhouse of what I actually did. So I wanna make sure I can answer that. Really, do you mind just rephrasing? Right. So that's actually, I like that you phrased it that way because I'm trying to figure out exactly what your wheelhouse was. So I'm looking at it and I see the connection to the argument that the licensee is making that in terms of whether it was in fact obvious or whether there's some sort of protected speech that there was an analysis of social media in terms of the contemporaneous discussion about it. Trying to show this was obviously, you know, the general consumption was obvious that this was a joke. Can you speak at all statistically to what portion of the betters that may have put in on this and or lost would be represented in that analysis? I mean, so that's a little difficult from my position because you're asking about a proportion of the betters which obviously is gonna be different from the social media users up, you know the people who are talking on social media are obviously going to be fans of Big Cat so I can speak to their audience on Twitter. And in terms of the representativeness of the examples I found which is the second part of my assignment looking for those exemplary posts. I didn't do that using like a statistically significant sample. The first part, you know I wanted to make sure the sample I selected was representative, excuse me so it was collected randomly and so I can make, you know conclusions that are based on the entire dataset. I didn't do that for the second part. What I can say is, you know the finding those tweets was not the difficult part. So finding those examples wasn't hard it wasn't like we have to go through you know, 12,000 and 15,000 posts to identify people that, you know thought this was a joke. You know, the difficulty was finding stuff you know, it's sarcasm, right? So being able to find posts that are going to appear clear out of context is, you know we want to make sure they're obvious. So I personally, you know maybe saw one post or so from a person who was disappointed potentially by the bet. But again, I didn't do I didn't look at a representative sample of tweets and try to code, you know to what extent were people did people believe that this was a riskless wager? So I guess that's sort of my take on it which is while it was interesting it didn't really speak to the potential risk that people knew or didn't know particularly if they had a loss but it sounds like that's not something that you were representing with the data that was submitted. Is that a fair statement? Yes, so it was I can say it was relevant finding the examples of people taking it as a joke was fairly obvious. I mean, most of the tweets I were looking at in the sample were from people who are, you know retweeting or engaging with posts from Big Cat where he was often making fun of himself in his inability to pick accurately. But no, I didn't look at a like a representative sample of tweets to identify the people who took it as a joke or did not take it as a joke. And you can extrapolate to the pool of betters, Crick. I mean, I wasn't asked to do that. There may be a way, but that was not my assignment. I want to speculate on something like that without having to study it more carefully. Yep, great. Thank you so much. Question on the interview. Do you have a follow up on that? I have a follow up based on that line of questioning. I'm going to direct it to Mr. Albano and he can see fit on how to move it around. Does data exist on how many people who download or follow the entertainment arm, the bar stool, sports entertainment, podcasts, socials? How many of those exist? And they also wager on the sports book application? Is there crossover data that exists? May I have a moment? To what? Followers of you that are not, I think it'll be of age. Right. The answer I'm getting, and I'd be happy to follow up after the hearing with a submission, but what I'm hearing now is that the short answer is no. But again, I'd be happy to submit a letter after the hearing to explain. So would it be fair to say this part? Thank you. We don't. What's up, Maynard? Did you have another comment? Is it fair to say that they're potentially patrons who are not aware of the irony? Is it fair to say there's bar stool patrons who are not? I may have missed part of it, sorry. Let me, I appreciate that. Is it fair to say that potential wagers of this wager, right, of this parlay are not aware of the irony because they either do not follow the bar stool's entertainment piece? Is there potentially patrons who are not aware of the irony? Let me answer that in two ways. No reasonable person, we respectfully submit, no reasonable person would look at the odds and the need to win four separate bets and think it is risk-free. That is, but I wanna grant you that that's what I believe is the legal standard. It's a different question than your specific question was. Is there anyone in the world who might say, oh, we really can't lose this? That, I mean, I don't think that's knowable. And there's sort of, have there been consumer complaints? That would have been considered relevant, I'm sure. The absence of consumer complaints, I would submit is a positive, not a negative. Could one speculate that there's someone too embarrassed to say, yeah, but again, if the consumer complaints would be relevant, then I would suggest the absence of consumer complaints supports the conclusion that this did not violate the regs. In response to your question, I think many, many situations where the truth is that we can't know if someone out there, I'm talking about in different contexts, somebody might have bought those crunch berries and thought it was a healthy meal, that could have happened. I don't think the company could have gotten up and said, no one would ever misunderstand that. The legal issue is, would a reasonable person have misunderstood that? And there I do, like a broken record, say, we say no here. Is that approach answering your question? I think that you answered my question. I do have one follow-up, Madam Jay, if I may. These parlays, when they're announced, I'm gonna say prepackaged, that's probably not the correct term, but they're generated, right? They're generated for a patron to be able to easily make this wager, correct? Yes, yes, I think that's fair. And where do they live on the application itself, the day this wager is? Is it on the front of the application? Do you have to go two screens in? Does it depend on the patron? How does it appear on the app the day that it's offered? So I hate to admit this in front of my clients in the room, but I only recently looked at the app and the parlays. So if I may, may I consult and do you know me? We can answer, good afternoon, Commissioner Maynard. Can you hear me okay? Now we're on a different mic, so I just want to make the... Great, the kit was parlay along with other wagers of its type are located in a section of the app called Barstool Exclusives. So it's several screens and there's the login screen and then there's a front screen and then you click on Exclusives and you find it there. Got it, thank you. That's all I have, Madam Jay. Thank you, Commissioner Skinner, I believe you're leaving it. Yes, please, thank you, Madam Chair. Follow up to Commissioner Maynard's questions. How else and where else is the Cantons Parlay advertised beyond the Barstool Sports Big Cats platform, if anywhere? I think Mr. Sariano, you just said that it is featured on the actual sports book under the Barstool Exclusives tab, but is there anywhere else that this parlay is advertised outside of that show or the entertainment piece that Big Cats heads up? Yeah, good afternoon, Commissioner Skinner, thanks for the question. To be clear, where it's located on the app is how you go find it if you wanna place a wager on it. In terms of promotion of it to the public advertising, we don't particularly do things like build boards relating to it or blasts, things like that. It's typically shared through social media channels. We may have a tweet, Barstool Sports Book may have a tweet saying this promotion is available this wager is available, it's avenues like that. That said, I think it would be relatively simple for us to pull together some examples of that, Commissioner, and submit them to you following the hearing so that we have, if that would be useful to you. It would actually. And in that case, I mean, if I am not a fan of Big Cats, not necessarily not a fan, but if I'm not aware of that platform, if I am not really a Twitter user, so I don't get any information about the Can't Lose Parley through that medium, I brand new to sports wagering, let's say, I download the app. I'm curious about what this Barstool Exclusive tab is. I see the Can't Lose Parley advertised. I'm not looking at the odds because I'm not fully informed as to sports wagering. What would inform a reasonable mind in that instance? What would tell me as a better, that I'm more likely to lose that Can't Lose Parley than win it? Sure, Commissioner, the fact that it's present on the wagering site, I think makes clear that it is a wagering, but significantly under the description, and the description is that wagers themselves were exhibit seed of my declaration, how those were prepared, which is for the record, we'll get that just so that it's clear. You know, when it says, even if you're not looking at, for example, the Plus 320, because that's not a number that resonates with you. It does list the four things that have to happen right there in order for you to win that wager. Four legs of the Parley are listed right there in terms of what they are. So we think that, even with a basic, and then as we stated earlier, there's also the page that describes what a Parley is and that can be accessed by customers and the opportunity to ask questions through customer service. I think when you take all of that together, if you are even a new person to sports wagering, if you take a look at the fact that four things have to happen consistent with a point spread described right there, I think it's clear from that that this is a wager, that this is, that necessarily includes uncertainty to it, that it's not a short thing. I mean, the mere fact that it's offered as a wager, I think puts that out there in context, but I think the way it's laid out when you see these four different things that all have to happen, I think it becomes abundantly clear just from seeing that. And that's exhibit six for the record. Thank you. And so what's the appeal with the Can't Lose language? I mean, in your documentation you call in, I think you've been, Mr. Albano, referred to the wager as a long shot. In your documents, you say the bet is highly likely to lose. And so why not call it Can't Win, Parley? So what is the exact appeal to that Can't Lose language? Sure, because it's, again, it's historic. It goes back to 2019, certainly before the affiliation between Penn and Barstool. And it plays on, again, what Mr. Albano described earlier as Mr. Katz's persona as someone who is a bad betterer who then often says, it can't lose and it loses. He'll say that just in general comments about his porch wagering history. And so it's really something that sort of borne out of his personality and his social media presence as just a term that he regularly uses. I mean, certainly when you see the odds and you see its location, I think we can look at it again in the proper context. It's a name that, again, is meant to be satirical based on Mr. Katz's personality and not one meant by a gambling company to say, this is something where you're guaranteed to win. Thank you. Can I do a follow-up, Jessica, please? I appreciate my colleagues' line of questioning. And I think you used the terms I was struggling with, Commissioner Skinner, Mr. Albano, you used the terminology reasonable person. I don't think you said reasonable consumer, but I think Commissioner Skinner used the term informed. I'm not sure, quite frankly, Mr. Albano, what the legal standard is. But I guess my question is, is Commissioner Skinner was thinking like I was, where is it on the app that says this is really not free of risk that really you can, and in fact, you are highly likely to lose. Just like if I looked at the Captain Crunch box, Mr. Albano, and I reflect back on maybe some poor judgment, because I do believe I serve that to my children for Christmas special practices. I suspect there's a place on that box where if I look at that panel, it does say these are real berries. And so I become an informed consumer. And in our regulatory function, we're really working hard because of the risks associated with gaming that we offer all the tools so that our consumers in Massachusetts are highly informed so they can make choices that are healthy for them. You'll load it to that with respect to what, you know, Mr. Portnoy's study, $13,000 is healthy for him, but they may get informed choices based on information. And to Commissioner Skinner's point, you know, you can't lose means you can't lose. Berries mean berries unless somebody tells me differently. So I guess my question is Mr. Albano, is it a reasonable consumer or a reasonable person an informed consumer and informed person? What exactly is the standard that you think we should be choosing in line? I read the SJC as using the terms reasonable consumer and reasonable person interchangeably. I think it would be sufficient, for example, if the crunch berry box, rather than saying there are no berries in here, just listed the ingredients. That would be enough for a reasonable person. And so here, a reasonable person, consumer sees odds of, I think it was exhibit six plus three 20, it sees you need to win four bets or you lose the parlay. That, I mean, I would submit that. That is, those are the ingredients on the box. And any reasonable person would, I respectfully submit, say, first of all, I'm in a betting app, it's a wager, I'm making a bet. These people aren't giving away their money, but now I see long shot and I need to win four. So I would say that alone is enough. And just to, if I may, just to clarify the social media. Oh yeah. Just to get to social media. So do you think that we should have on allow our offers to say free, cost free or free of risk? Should we allow that? If we allow for, you can't lose because a reasonable consumer would know, of course nothing's free of risk. We look at our language, imply or promote sports wagering as free of risk in general, in connection. And even though I love bunny, Mr. Alvato, I love bunny, I love satirical, I don't love bunny at anyone's expense however. Do you think that there's really a difference between free, cost free, free of risk and you can't lose? Or is it not to be associated with satire and people have to understand it's satire? Yeah, so I think the analysis should be, I'm not suggesting that the regulation is flawed. I'm not suggesting that it's not permissible for a regulator to say if you're promoting a wager, our regulations say you can't say it's risk free. My point is that in applying that regulation, one must look at the context in which the statement was made. And I don't know how to say this, except the words are can't lose partly. And one way to look at it is to say our inquiry ends there. They said can't lose, we're done. I suggest that the correct legal analysis is we must go further, we must examine the context in which this statement was made to determine if a reasonable consumer would have concluded, oh, this actually is like withdrawing money from someone else's bank account. They're just letting me do it. And I don't think that, I don't, again, I respectfully submit that's not what a reasonable person would be. Madam Chair. I have a question for you. Thank you, Madam Chair. I don't know who wants to answer these comments for me. I am the only person on this commission who was not adjourned. So I don't look at it through the legal eyes as my fellow commissioners do. What I do look through is my eyes as an everyday Joe. And when I hear the word a reasonable consumer, I have to tell you that a red flag goes up to me because I have to ask myself, what is a reasonable consumer? What is a reasonable person? We keep talking about the history of Dan Katz and the big cat, and he has a good history, has a good show, and I'm gonna say that publicly. I've heard it, I laugh at it, and enjoy it on occasion. But we just started a new industry here in 2023. We don't go back to 2019. We've only been up and running for three months. So when you say we have reasonable consumers betting on this particular can't lose promotion, these are new bettors in Massachusetts. This isn't nationwide, this isn't any other jurisdiction, Massachusetts, and I'm going to go out and be blunt about this. What do we call a reasonable consumer as responsible gaming issues who are new to this industry? Our young people who we have been told through report after report after report are having the biggest problems with problem gaming who are new to this industry. They don't know who Dan Katz was in 2019. They're only come to know him possibly, arguably, in 2023. Yesterday or a few days ago, there was a report out from our federal government that a lot of what is happening with our youth today with mental health issues is happening because of social media. So I need somebody to help me understand what is a reasonable consumer when it comes to this new industry? Because I believe that, yes, there are a majority who would know that this is a joke. I think we can all turn to the past playoff, the last leg of the playoff when the South Dicks were playing Miami and there was a former NBA All-Star who would put his bets out there for the public to hear. And we all know, at least those of us who are involved in NBA watching and loving former NBA stars, that this particular person does not do well when he bets. Same idea. However, let's be honest, there are people who are making those bets as soon as he says, this is how you, I would bet. So when I hear the word responsible consumer, what really is a responsible consumer? The majority, you're probably right, but I don't care if it's 10%. My job is to ensure that that 10% who has a responsible gaming issue, who has a mental health issue, who is young and doesn't always make the right decisions when they're young, but here I am 56 years old, I still don't make all the right decisions in my life, but certainly I look back when I was in my 20s and I may have been swayed at that time in my life to make a bet because of something I saw without knowing the history of the big cat. That's one issue, Madam Chair, that I have. And then the second one is, I really would... I think it's a good question to address that one. Do you have your thoughts about this? Yep. Maybe a pause right there, and does that make sense, Commissioner Hill? Mr. O'Donnell, I'm trying to appeal first. Sure. Commissioner, you raised obviously important issues, consumers with responsible gaming issues. Young but of age wagers. The legislature, I think the starting point here is that those issues are in Massachusetts because the legislature made a decision to authorize sports wagering subject to the commission's regulations. What comes with that is the authority to regulate advertising. What comes with the authority to regulate advertising is the requirement that in determining whether a statement is true or false, a statement is making a false factual assertion. The law, the SJC Supreme Court requires that in regulating that type of advertising, one must view the statement in context and yes, through the eyes of a reasonable person. Just as in other areas of the law, the standard of reasonableness is applied. People, I mean, I'll be blunt, people get hurt in malpractice cases. And the question is, was the physician, did the physician act reasonably or not? And sometimes the physician acted reasonably notwithstanding an injury. And you're raising deep difficult issues but I think the answer to your question is that the legal system that surrounds this issue has imposed these requirements when one regulates even commercial speech. So I don't see any escape from having to examine here the statements in context. And also in defense of average Joe's, average Joe's know a bet's a bet and average Joe's know if I gotta win four of them, it's more difficult than just winning one. And that, I personally think that's the heart of the issue. Is it relevant that the social media indicated that a lot of people talking about CLP know band cats and presumably know as reputation is an awful better? Yes, yes, I do say it's relevant. It's a brick in the wall of our case. But what it comes down to, I think essentially is, no reasonable person would think having to win four bets is a sure thing. It doesn't, I wanna respond to the kind of heartfelt part of your question, which is concern about people. And I think the only way I can respond to that is to say that the legislature made its decision and the laws are what the laws are. And we have to do our best through responsible gaming help, the responsible gaming message that N does well in order to mitigate those risks. But we, I just respectfully say, can't start a different speech regulation regime out of those very heartfelt concerns. Can I just do a follow-up to that earlier if it's connected to yours, Commissioner Hill? Mr. O'Ball, you said that the ingredients, we go back to the various things that, it's connected to Commissioner Hill's concern about being formed, better than we wanna reach with responsible gaming tools to understand the risks. You said the ingredients say the ingredients and then they don't, this is what I have to say, no berries, but they're not going to have an ingredient, these strawberries, it's gonna be an absence of that. I'm sort of stuck on the idea that what you described as the ingredients here to explain why you can't lose, can't possibly mean you can't lose because it absolutely assumes some basic understanding of sports for each other. And I think that was Commissioner Skinner's earlier point and then I think Commissioner Hill's question about what is the reason of a consumer in a brand new industry? What is it that we should be providing them with? And if you just start with complicated ingredients without a basic understanding, is a reasonable consumer supposed to make sense of all of that even though the ingredients are really nonsensical unless you have background? And I think Commissioner Skinner, you leaned into that, you know, you don't know anything about this. Those ingredients don't make any sense. So how's that play into what we're supposed to assess as a reasonable consumer here? Right, well, here's the way I look at it. If it was a simpler set of facts, but based on this situation, I'm a new better, by the way, the 15 other jurisdictions that permitted the CLP, also had new betters, sports wagering hasn't been around that long. But back to the way I think of this, it says can't lose parlay, long shot, odds, you have to win four bets. That, I think a reasonable person betting is, you know, they do know what a bet is. Red in context, a reasonable person gets that. Well, that's really, and I personally think it's somewhat telling that the number of repeat betters who lost the first, that's real data, that actually happened. People lost the first bet and went back. That's not an indication, again, I don't say that's it, that's our whole case. But, you know, it is another, I would say, significant brick in the wall. But I hope I answer your question. That's my, that's what I can do there. Commissioner O'Brien and Commissioner Hill. So another way to look at that, Attorney Albano, is those people are chasing losses. And so to be blunt, I'm not overly persuaded by that piece of information. To follow up on what some of the other commissioners said, I am inherently troubled by your analogy that seems to say, because a parlay is inherently statistically harder to win, no matter what you caption it with, a reasonable consumer should know there's a risk involved. And I just don't think that that's accurate. I mean, there's a reason that regulations that we have and other jurisdictions have as well that are moving towards say, you can't say free, you can't say risk-free, and maybe you can't say can't lose. So the discussion of what under the law of commercial speech, which is sort of the lowest level of protected speech, what does that mean? I don't, as one commissioner, accept the representation that you're putting forward, because then no matter what the parlay's captioned, it couldn't have any sort of misleading to the consumer. And I don't accept that representation. And I'm also going back to sort of some of the other questions that Commissioner Maynard and Patricia Skinner asked about the positioning of this on an app, wholly apart from whether this person follows the social media personality that is Dan Katz. And I go back to that Pepsi, Harry, or Jet, where putting just kidding or not on an ad can make it very clear whether or not you're being satirical. So I think there's a way to make it very clear if you want to be funny and take the risk out or minimize it. It's not really a question so much as just my response to some of the chatter and the conversation that we've been having about what the reasonable person reasonable consumer standard is in this context. If I may, I did not and I do not represent that a promotion can say anything and slide by your regulations. I am saying, I don't know if it's a representation, it's my honest read of the case law that there aren't magic words that end the analysis that I understand the case law to say one must go further and look at the context. So whatever other, for example, if you have another hypothetical in your mind, I would say we have to look at the context and what would a reasonable person slash consumer believe? That's what I'm, if it's a representation, it's a representation. That's what I believe the case law requires and from there I say there are a variety of facts here that support the conclusion that a reasonable person would not have thought that this was like a license to withdraw money from someone else's bank. It's a bet. That part's not complicated, I submit. Should he'll be going to your second point or follow up and I know Commissioner Skinner also is ready to answer. So my second question and this is a direct question is I really need to understand how you truly believe you're compliant with 205-CMR-256.02, which is the application and I'll read it for you that says the provisions of this section shall apply to all advertising marketing and branding of sportsway during aimed at published air displayed disseminated or just distributed here in the commonwealth. Can you please tell me how you feel you were in compliance with that regulation? Yes, that regulation in my view is 100% valid but when a regulatory authority applies that regulation so the difference between, is it invalid on its face? No, that's the gaming regulation but when it is applied and I apologize if I'm repeating myself because I think I haven't come up with a better way of saying it. When it is applied and I apologize if I'm repeating myself because I think I haven't come up with a better way of saying it. When it gets applied, one has to look at red in context, is it misleading? Red in context, would a reasonable person have believed it was a risk-free bet? That is what the case is saying. Case say some things are patently false that red in context aren't false. It really is what the exercise is of regulating commercial speech which yes, as was noted, does not get the same levels of protection as political speech but it is still constitutionally protected and leave aside the constitution for a second. The SJC's false advertising cases all say the same thing. Gotta read the statement in context and look through the eyes of a reasonable person. Here you've got our stool, God, they are a Massachusetts based company so it's not like nobody heard of them here before. There's apart from the facts that I've been focusing on there's the how to section of the app says how to bet. And so I come back to, I know the facts are different but the analysis is the same. There's no buffalo in buffalo wild wings but it's not a false statement because in context people get it. Now you may disagree with me about how to apply the facts of this and I respect that but I think we have the law, right? And I think the combination of factors here do not support the conclusion that a reasonable person would believe that was a sure thing that four legged. Mr. Maynard, I think Mr. Maynard might be following up on a point that Mr. Alvano raised. I think I saw his glove. I don't know if you have a follow up first too. I do. Welcome to go first. So, Commissioner Skinner. Thank you, Commissioner Maynard. Just done that last point you made, Mr. Alvano. So would you say that it's unreasonable for a better to expect to win? This can't lose Parley. Just curious as to how you look at it from the other angle. Yes. I think someone who said, someone who looked at a Parley and said, there's long shots and I need to win four bets. I do think it's unreasonable to say that's, I don't have to worry about this, that, no, I lost them. Hang on, did someone? No, you're still on, you're still asleep. All right. Sorry, folks. Give me a second. No problem. Sorry about that. I don't know how it happened. But I think Commissioner Skinner, the short answer is yes, I think a reasonable person would not reach that conclusion and I think that means that it would be unreasonable for someone to reach that conclusion, considering all the facts. May I go to Commissioner Maynard? Commissioner Maynard? Thank you, Madam Chair. So would it be possible for a listener and a follower to Big Cat, to assemble the same can't lose Parley that's being talked about either online or on the air themselves? I hear Big Cat, Big Cat announces his can't lose Parley. Can I as the consumer and listener and follower and very understood, I understand the irony, can I go into the app and assemble that same Parley myself? Yeah, you got it. Yeah, Commissioner Maynard, there's essentially, you can make your own Parley. Like a customer could go in and choose any games and essentially make a Parley on them. I think the only difference would be, here the odds are set, the odds are displayed, the payout is displayed and sometimes it's boosted. But if you went on the app and said I'd like to Parley, choose any four games. And I think this is not unique to us. This is anywhere. Choose any four games. You would then get a price for that Parley. You would get a payout for that Parley. So yes, a customer could simply say, I want to Parley three games tonight and pick any three games. And that would be paid according to odds. And that would almost guarantee that the person who's assembling this themselves, making the same wager themselves, understood what Big Cat was doing, right? Wouldn't that better protect the casual sports book user who doesn't follow Big Cat at all, but may see the pre-packaged Parley on the screen when they enter the app? In other words, Commissioner, your suggestion is that rather than have pre-packaged Parley is available at all, that customers go in and build the Parley themselves? For my line of questioning and the line of questioning of my fellow commissioners, I see an issue which is that there's no data that shows. If you brought data that showed 100% of the people who place these wagers are listeners of Big Cat, then I think we would have, the argument would be very strong, right? But I'm worried about the one person. I don't care if it's just one person who doesn't understand the fact, who maybe has never heard of Big Cat, who just happened to be on the app for five minutes, scrolling through, sees the words, but then places the bet. That's who I'm trying to account for. And my job as a regulator, which is my duty. And so I'm sitting here thinking to myself, well, I know for a fact, if I was listening and in real time made the same can't, can't lose Parley. The odds of me being the reasonable consumer who understood that Big Cat being ironic, exponentially go up, right? Versus the pre-packaged bet from the company that follows Big Cat's prediction. I'm just throwing that out there and you answer my question. That's your standard? Yeah, so I think the more I sit here and listen to this proceeding, I'm getting, I'm troubled even more because, I mean, if there's virtually no chance of winning these parlays, it begs the question, why are people doing this? And I know this might be getting beyond what we are reviewing today, but this is just, why are people betting such large amounts in particular? Why is Dan Katz betting such large amounts on a wager that is a short loser and promoting, if you will. And I wanna be careful because I don't wanna speak outside of the alleged regulation that we are reviewing here and confusing, but I think someone said it earlier. It's almost like you're just going into people's bank accounts and withdrawing money. And I know people have freedom of choice to do what they will with their discretionary funds but it just seems to be morally wrong almost. If there is not a chance that this wager will win, why even offer it? Why even put it out there even through this big Katz platform? What is the point? I just, I'm struggling with that. Significantly. Commissioner Skinner, if I may clarify around that, the thing to keep in mind is parlays are as we made clear, they're more difficult to win than say a one game straight bat. They're not impossible to win and in fact, for the commission's background and context, the March 10th parlay won. Anyone who bet that that can't lose parlay, it was a winner would have won on that bet. Certainly, when you look at math and odds and I think, I would perhaps speak to counsel and reserve the right to submit something confidential following this proceeding to perhaps provide more information on this. There are percentages and imputed win probabilities when these are calculated as a matter of math that they're not impossible to win. They're just more difficult to win when you take four together and look at them than it is if say you were to just bet on one game and have to make it. I just wanted to make that point clear that the word impossible is not as far, it was certainly not, these are not impossible to win. They're just less likely than the traditional wager to win which is rewarded by a higher payout, consistent with, for example, a futures bet that's made at the beginning of the season on a team that's unlikely to perform well at the beginning of the season has really long odds and then performs well. You might even consider, it's perhaps not the most apt analogy, but when you look at the, all the advertising and all the promotion that goes around when the multi-state lottery jackpots get really big and folks see commercials all over the place about the Powerball jackpot is $500 million and there's, every store on the street has a sign that says Powerball $500 million or $1 billion or something like that. Your odds of winning that are infinitesimally small but people are still wagering on it. They're getting the entertainment value, they're getting a chance to win. I mean, the odds of hitting a parlay are substantially larger obviously than that but I think it's one of those things again, looked at in context, it is a more challenging wager and we do disclose that in our how to bet section of our app, that a parlay is harder to win but it is one that pays more. And so I think that this is a, it's a great question and I think it's apt to look at parlays generally but again, they are not impossible to win, they're just priced based on the likelihood of hitting four together or three together or six together, whatever parlay someone chooses to make. Thank you for that clarification. I do actually have one other question for the licensee pertaining to the other material that was submitted in terms of David Portnoy's bet and what the argument is that him pushing out his 13,000 plus bet in honor of launch day and how that did not run afoul of 205CMR256.046C. Yes, they're right in front of me. Don't worry Mr. Ivanov, me, yeah. If I understand correctly, this is not really a, I don't think of this as a can't lose parlay question. No, it's different. Yeah, it's a very important question about what's the impact of the numerous gaming companies and personalities who post on social media. Could I stop for one minute, Commissioner O'Brien, because I do think we were really into the questioning around thing of that. And then if you wouldn't mind if we could address your question after we've exhausted. You want a table until we've exhausted. I wanted to clarify whether or not we could, everybody is all set, Commissioner O'Brien. Okay, thank you. And I'm sorry, Mr. Ivanov, this is the challenge of a virtual room sometimes. I'm kind of trying to read the room. Commissioners, follow up questions on the can't lose or new questions on can't lose. I have, I think, just a clarifying question for me to stop on them. I want to ask you how I reconcile again, our, I think I heard you say that you weren't challenging our regulations, is that correct? Yes, what I mean by that is one, in theory, one can bring a claim that says a regulation, well, on any matter, but certainly one that regulates advertising is unconstitutional on its face. You don't have to get into the facts. That's not at all the argument that I'm making here. The argument I'm making here is that, well, the constitutional argument is that if you apply that regulation to these facts, that would violate constitutional commercial speech principles. But my first argument, as always, is, well, there's actually a body of law on determining whether a statement is false and misleading, and the SJC has repeatedly said that is viewing it in context in the eyes of a reasonable person. So I make the same argument there that if you apply, that that standard is how you apply the regulation under the laws of the common law. And then I move to the facts, and I submit the facts can't get you there. Does that? Yeah, that's helping me as I think about my decision-making. And so your facts, one, presume, familiarity with Mr. Katz. And two, they presume an understanding of satire in some context. Am I wrong on that? Do I have to assume, do I have to make those presumptions to get to the reading of the facts that make some reasonable consumer say, no bet Parley, I mean, no lose on Parley, truly means I'm not, I may not win, and I'm not, I might be more likely to lose. So I have to, do I have to accept those two things? Do I have to assume that the majority, a number to Commissioner Maynard's early, early point? We have to assume that everybody knows who Mr. Katz is and his satire to really understand that. Then when I go to the operator, I pick up my new, my device with my new app on Massachusetts, our stool brand. Do I have to know Mr. Katz's funniness? Do I have to know that satire in order for the context to be delivered to me in order for me to make sure that I don't, in any way. No, you do know, my, I would say one looks at, again, there's a poster, it says, can't lose Parley, long shot odds, you have to win four separate bets. My starting point is that's enough. A reasonable person would know that's, I, this isn't a very lawyerly way to answer the rest of the question, the other stuff helps, helps reach that conclusion, but it's not. But you're saying just a new better alone should just, doesn't matter that it's satirical, because I saw a lot about that, you know, on the paper. So it's funny, you know, but that doesn't matter. It's just for the brand new better, they just should know better. So, I stand by what I said, that hypothetical poster, I think would not, a reasonable consumer would not believe that those four bets are a sure thing. I am saying the reason the other arguments are made is that I think those additional facts which provide additional context are relevant and helpful, as are the repeat betters who lose the first time, it is sort of similar to, there's consumer complaints, that would be bad. If there's no consumer complaints, oh, that's bad too. If there's repeat betters, if there were no repeat betters, that would probably be considered bad. But if there are repeat betters- Mr. Alvano, in terms of those repeat betters, I missed this. And I'm just asking the question now, how many, what percentage of those from Massachusetts betters? I don't, I don't know and we don't know, but we can check and get that. Well, but I- Oh, it's not going to be much. It's not going to be any, because we stopped March. Yeah, I mean, to be clear, we offered it initially and then in response to our discussions, we should have stopped. I just wanted to add that clarity that those don't include any Massachusetts betters. Yeah, and to reiterate, we stopped and again, our position here is we will permanently stop it. That's just the point I wanted to make sure came across. But if I may, relevant, because as I, so this is going to be the second time I've mounted a defense of Massachusetts residents that they're not less sophisticated, less reasonable than the folks in those 15 other jurisdictions. So I think that consumer data is relevant, albeit obviously only caught not much of Massachusetts. Any other questions on this? All right. Commissioner O'Brien, if you wouldn't mind just restating your quick question about the other issue, as long as we're all set on the, yeah, Commissioner Hill, I just want to confirm you're all set, right? Commissioner Skinner, you're all set. Okay, Commissioner Maynard. Right, Commissioner O'Brien, let's go. Certainly, and I don't know if it's Mr. Soriano, if the Attorney Soriano is more in a position to answer this or not. But in terms of the other part of why we're here today, which was David Portnoy coasting his $13,000 plus bet on the Can't Lose Parley that we're talking about and why you would take the position, if you do, I don't know, that you are not running a foul of our regulations by endorsing a particular bet. Yeah, and Mr. Albano had started answering that question earlier, Commissioner, and I'll let him. Sure. I'll jump in if you need me. The regulation, I'll paraphrase, I've got it in front of me. Advertising and the like that promotes irresponsible or excessive participation in sports. No, it's more specific than that though, Attorney Albano. So 205CMR256.046C It says no advertising marketing branding any other promotional material published, air displayed, disseminated or distributed by or on behalf of any sports wagering operator. She'll see Implier promote sports wagering as a free of risk in general or in connection with any particular promo or sports wagering offer. That's the specific rag I'm talking about. Okay, thanks. Sorry, I was talking on the wrong road. Yes, that's okay. Thank you. The answer is really the same reason that the CLP offering itself does not violate the regulations. His, may I ask the concern would be is your question directed at did he violate the regulation by promoting the Parley as risk-free or is your concern about him including the amount of his fat or is it both I want to address? So the issue that was raised by the IB summary was you have a content provider. You have some closely affiliated with them. You have a branding individual, David Portnoy who in honor of the launch day of that sports betting app in Massachusetts says in honor of the launch day putting $13,000 plus dollars down on a can't lose Parley the one we're talking about. And we have a regulation that, dovetails sum up with this conversation but we haven't discussed at all whether if the finding of this commission is that that was in fact a violation to do the can't lose Parley does it automatically then follow that David Portnoy doing what he did with posting his bet was that then implying or promoting a particular promo and sports wagering as being risk-free? So, and... That's not discussing the solutions that were submitted. That's why I asked the question. Yeah, and forgive me for that. I know I shouldn't be asking a question back but just if you don't mind, help me answer it. Is the gist of the question if you were to rule that PSI what had violated the regulations by offering can't lose Parley does that mean that Mr. Portnoy must also have violated the regulation by sending the tweet that he sent out? So there's an argument to be made particularly because of the lack of any discussion of this and the submissions by the licensee that there's no arguably no challenge to what you just said that that would in fact be the logical conclusion and extension if we were to so find. So I'm specifically asking whether there's a different position being taken by the licensee on that matter. Well, I think every defense asserted on behalf of PSI would apply to Mr. Portnoy and I think he has additional defenses because he's not the one because first of all, everything in his tweet is true. That's a rather Except for maybe the can't lose part, right? If fair point on your side but I would say every factual and maybe I'll amend it every factual assertion in the tweet is true understanding that your concern that CLP also is a factual assertion. It does contain the responsible gaming message. It had the anyone who was interested in the Parley who saw the tweet would have to go to Barstool sports book and see the odds and the four leg bed. It's a permissible bet for a man of his means. And to the extent the concern is the amount of the bed. That's where I think I said earlier that that seems more like a rule making issue than a violation of the right given and I'd be happy to submit social media posts from many gaming who's talking about much, much bigger bets and winnings. So I guess maybe I can be more pointed at the question which is, would you agree that him doing that was an endorsement and a promotion of that particular bet? I think it was a promotion of the bet. I think he has additional, he's one step removed. Let me be 100% clear here. I'm not saying that PSI doesn't kind of own the tweet. It's a tweet, it's not technically by an employee but it's by a personality, a Barstool personality who is disseminating information about a bet and the company's not walking away from that and I hope I didn't say anything that sounded like I was because I'm not. Our defenses are on the merits of what is said. Thank you, I don't have another follow up. Commissions, do you have follow up some of this line questioning? Everybody's all set. Everybody would indulge me. I would like to just take about a 10 minute break before we conclude our today's session. So that would allow me to come back right around two. Does that make sense, everyone? We'll have a screen put up and we'll go back to making our, I mean concluding statements and make sure that we're all set before we adjourn. Okay, thank you so much. Okay, Dave, I think we can take down the screen save for now. Thank you. Thanks, everyone. Thank you, Dave. Okay, we'll get started. This is a continuation of an adjudicatory hearing before the master's is gaining commission relative to the alleged non-compliance of Penn Sports Interactive. I'll see the master's general laws and I won't go through them all. I did capture them all at the beginning of our hearing which started at noon today. Commissioners, just because we are holding this adjudicatory hearing in a virtual setting, I'll make sure to do a vocal, Commissioner O'Brien. I am here. Commissioner Hill. I am here. Mr. Skinner. I'm here. And Commissioner Mayer. Here. So we're all set to proceed and thank you for indulging me for a short break. Before we continue, I'm going to ask PSI, they would be interested in making a closing statement, but before we continue commissioners, I really want all of us to stop and pause and think, are there any other questions you have that we can anticipate having as we proceed to deliberations that we could ask either Mr. Soriano, Mr. Schaefer or Mr. Albano to address any other questions. And of course there were two chief lines of questioning. Okay, Commissioner Skinner. Thank you, Madam Chair. I do have one other question. Are either of the personalities, Dan Katz or David Portnoy receiving an allowance or reimbursement for the wagers that they promote as part of CLP? And if that's a sensitive question, I can turn to legal, to our legal division to determine how we might best be able to get that answered. I'm sorry, I can't remember where you go. Go right ahead. Apologies, I was just going to note that there is a provision in the regs for potentially taking the deliberations to a private setting in the event that the operator asked for that and the commission agreed. And if that's something that the operator would like to consider, I can read the provision of the reg. Should I read it? Mr. Albano, you are on mute. If you're speaking to us, thank you. And so we do have the opportunity to do it privately. I was gonna say, there's no need to hear because the answer to the question is no, they are not. Okay, any other question on either topic that you might otherwise anticipate for deliberations, anything that's going to help in your decision making commissioners? Okay, so Mr. Albano, would you like to make a closing statement today? If I may, I'll keep it brief. Oh no, no problem. So one part of having a hot bench experience is that some things that I had hoped to convey, I worry I did not because the big picture here is that as we've said before, once the company became aware of the concerns that the commission had about the Can't Lose Parley, Parley, they stopped them. And as I have said, they continued to stop them and they're proposed permanently terminating them. And as Mr. Soriano said that we can put in a document that the history, this is different than what occurred before the AGA because what the AGA was told was they are not currently, they were not currently offering the CLP, which was true. The next sentence, I think said that said, here's why it's now in paraphrasing, here's why it's valid. There was then a follow-up submission that was entirely devoted to defending the merits of the CLP. I offered a defense of the CLP, but I'm also here to say this is a different proposal than clearly different than what was submitted to the AGA, which was a defense. Yes, we believe that we did not violate the regulations for the reasons that we've tried to explain that I've tried to explain. But we also appreciate the authority the commission has and the concerns that you're trying to grapple with. And I'd like to add to the extent it's relevant to any decision, I think it may be relevant to whatever decision you may make. There really is not a question here about whether the licensee or Mr. Portnoy were acting in good faith at the time, I'd say. And again, this commission isn't bound by what any other regulator does. But if we're trying to look at kind of the state of mind and the good faith of the licensee here, then when that Massachusetts CLP was offered, the licensee's experience was that it was free to offer it in 15 jurisdictions, to them it was significant that those regulators had not complained that they hadn't got the consumer complaints. And in terms of the Mr. Portnoy's tweet on the opening day, when it had been live in 15 other jurisdictions, he too was acting in good faith when sending something that was in effect as acknowledged, a promotional material concerning the CLP. The AGA taking no action was, I think, further evidence of the state of mind of the licensee. And when I said, I wondered if I had conveyed this in the course of answering the questions that the commission has. In particular, I wondered if I had conveyed the willingness to do this because of the appreciation and respect for the issues, the commission and the issues that the commission is grappling with. It's always difficult to marry that with a defense, right? But, and so we can get back and forth and what's the reasonable person, reasonable consumer? And those are interesting, important questions too. But I would like to close by saying there's a sincere willingness to resolve and desire to resolve this matter in a way that addresses the commission's concerns. And I hope that whatever, and would ask that whatever ruling you make, that the history of the CLP and the fact that it is consistent with and I think demonstrates the good faith and the lack of any intention to run afoul of the commission's regulations would be a part of your decision if only in a mitigating sense of the word. So that's, I think I've said enough, maybe too much. We really appreciate your closing statement, Mr. Albano and appreciate your time and your representation today and as well as all those who appeared on behalf of PSI. Thank you and I'm imagining from your perspective and in your experience, for you to call us a hot bench, I guess we were probably just that as you have certainly appeared before many benches. So thank you and thank you for your patience as we asked a multitude of questions. With that, I think we're all set commissioners and unless so unless there are any further matters that PSI or my fellow commissioners would like to address and I'm gonna give that opportunity one more time to your commissioners, anything else? Then we would conclude this portion of our proceeding today, nothing further, right? All right, then the commission, as I mentioned earlier, will deliberate about the matter in private and issue a written decision and the proceeding at this point however remains open if at any point during deliberations commission determines that further testimonial or documentary evidence is desirable. It may send notice of such and provide instructions on how to proceed. Thank everyone for your time to our team. Thank you very much for your good work and to PSI to North, it's great to see all of you. Thank you so much and thank you for your nice work today. We're adjourned. Thank you, thank you very much. Take care. Thank you so much. Thank you.