MGM Resorts International Global Gaming Development, LLC v. Malloy
861 F.3d 40
2d Cir.2017Background
- Connecticut enacted Special Act 15-7 (2015), creating a process by which the two federally recognized tribes (Mashantucket Pequot and Mohegans) may form a jointly-owned “tribal business entity” (TBE) to pursue commercial casinos on non-tribal land and to submit RFPs to the state Department of Consumer Protection (DCP).
- Under the Indian Gaming Regulatory Act, tribes may run casinos on tribal land via compacts; commercial (non-tribal land) gaming is governed by state law. The Tribes already operate Foxwoods and Mohegan Sun on tribal land.
- MGM attempted to register a TBE with the Connecticut Secretary of State but was rejected because it has no affiliation with the Tribes; MGM says it is interested in developing a Connecticut casino but has no concrete project or active municipal negotiations.
- MGM sued the State of Connecticut, alleging Special Act 15-7 violates the Equal Protection Clause and the dormant Commerce Clause by (a) effectively excluding non-tribal competitors from the commercial casino market and (b) conferring competitive advantages on the Tribes via exclusive DCP RFP publication and “signaling.”
- The district court dismissed for lack of Article III standing; the Second Circuit affirmed, holding MGM’s alleged harms were too speculative and not sufficiently imminent to constitute an injury in fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Special Act 15-7 excludes non-tribal developers from Connecticut’s commercial casino market | MGM: The Act creates the exclusive statutory pathway (TBE) to negotiate for commercial casinos, effectively barring non-tribal bidders | State: Nothing in the Act or other law forbids non-tribal developers from negotiating with municipalities under Conn. Gen. Stat. § 7-194; the Act only imposes requirements on Tribes | Held: Act does not exclude non-tribal developers; MGM’s exclusion theory contradicted by statutory text and Connecticut law |
| Whether the Act confers a cognizable competitive injury by granting the Tribes exclusive RFP publication and state “signaling” | MGM: The RFP publication and signaling give Tribes an unfair competitive advantage that denies MGM equal footing | State: Any alleged preference is not exclusionary and speculative; MGM is not currently competing for any Connecticut project | Held: Alleged competitive disadvantage is concrete but not imminent; lacks the required immediacy for Article III standing |
| Whether MGM’s generalized interest and preliminary studies suffice to show imminence of injury for standing | MGM: It is “interested” and “able and ready” to bid; Mathews and some circuits relax imminence where classification is discriminatory | State: MGM has no concrete project, no bids, no municipal negotiations, and no financing tied to a Connecticut project | Held: Prior precedent requires actual or imminent bidding activity; MGM’s general interest and studies are too speculative to confer standing |
| Whether Heckler v. Mathews eliminates the imminence requirement for facially discriminatory statutes | MGM: Mathews permits standing to challenge facially discriminatory statutes without imminent harm | State: Mathews did not eliminate injury-in-fact; plaintiff still must show personal denial of a concrete benefit or other injury | Held: Mathews does not remove the imminence/concreteness requirement; MGM is not personally denied equal treatment because it lacks concrete plans to compete |
Key Cases Cited
- Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1983) (standing requires injury that is concrete and imminent; competitiveness in bidding can confer standing if plaintiff would bid)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (Article III standing requires concrete, particularized, and actual or imminent injury)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (clarifies concreteness and imminence requirements for injury-in-fact)
- Warth v. Seldin, 422 U.S. 490 (1975) (no standing where plaintiffs did not show they sought permits or were thwarted in specific projects)
- Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397 (6th Cir. 1999) (standing where plaintiff showed it was ready and able to bid in an ongoing, specific procurement)
- Heckler v. Mathews, 465 U.S. 728 (1984) (discriminatory denial of benefits can be a cognizable injury, but plaintiff still must show personal denial of a concrete benefit)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (a bare procedural violation absent concrete harm does not satisfy injury-in-fact)