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Massihzadeh v. Seaver

Court of Appeals of Colorado, First Division

June 20, 2019

Amir Massihzadeh, Plaintiff-Appellant,
Tom Seaver, in his official capacity as the Colorado Lottery Director, and Colorado State Lottery Division, an agency of the State of Colorado, Defendants-Appellees.

          City and County of Denver District Court No. 17CV33699 Honorable Brian R. Whitney, Judge

          Recht Kornfeld, P.C., Thomas M. Rogers III, Denver, Colorado; Lewis Roca Rothgerber Christie LLP, Hermine Kallman, Denver, Colorado; The Law Offices of Robert R. Duncan, LLC, Robert R. Duncan, Denver, Colorado, for Plaintiff-Appellant

          Philip J. Weiser, Attorney General, Robert H. Dodd, First Assistant Attorney General, Cynthia P. Delaney, Assistant Attorney General, Robert Padjen, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees


          TAUBMAN, JUDGE.

         ¶ 1 What transpires when a person, who was one of three lottery winners, turns out to be the only true lottery winner following the discovery of fraud that invalidated the other two tickets? Is the innocent winner entitled to the full jackpot?

         ¶ 2 Plaintiff, Amir Massihzadeh, seeks to resolve this question in appealing the district court's judgment granting the motion to dismiss of defendants, the Colorado State Lottery Division (the Division) and Tom Seaver, in his official capacity as Colorado Lottery Director.[1] We agree with the district court that Massihzadeh's claims are barred by statute.

         I. Background

         ¶ 3 Massihzadeh held one of three lottery tickets containing the combination of numbers matching those drawn in the November 23, 2005 Lotto for a $4.8 million jackpot. After the Division director certified the results and all three tickets became "winning tickets," the Division distributed one-third of the jackpot to each winning ticket holder.

         ¶ 4 Tommy Tipton transferred the second winning ticket to another individual, and a third party, Cuestion de Suerte, LLC, redeemed the third winning ticket. Thus, Massihzadeh, the other individual, and Cuestion de Suerte each received a lump sum of $568, 990 - one-third of the jackpot prize after taxes. This was the reduced amount based on the winners' elections to receive a lump sum payout rather than installments paid over the course of several years.

         ¶ 5 According to the 2005 Lottery Division Rules, the Division was required to hold a random drawing of six numbers, certify the drawing and announce the winning combination, and pay the prize. Lottery Rules 10.A.4, 10.A.5, 1 Code Colo. Regs. 206-1 (effective until Dec. 31, 2006). The Division held what it believed was a random drawing, certified and announced the winning combination, and paid the prize it believed was due.

         ¶ 6 A decade later, the Division learned that the tickets redeemed by the other individual and Cuestion de Suerte were procured with advance knowledge of the likely winning numbers as part of a scheme to defraud lotteries in multiple states.

         ¶ 7 Colorado contracts with the Multi-State Lottery Association (MUSL) to procure services for the state lottery, and it used these services to execute the November 2005 drawing. The MUSL provides computer software to facilitate lottery drawings to the lottery departments in its thirty-three member states.

         ¶ 8 In 2015, the Iowa Bureau of Investigation contacted the Division with information about its prosecution of Eddie Tipton, the Director of Information Security for MUSL, who manipulated a 2014 Iowa lottery drawing. As Director of Information Security, Tipton had unfettered access to the computer software used to conduct lottery drawings. Before the November 2005 drawing in Colorado, Tipton manipulated the software to defraud the lottery. He then accessed the software for the November 23, 2005 Colorado drawing and transferred what he forecasted to be the winning combination to his brother, Tommy Tipton, who supplied them to a third party. Both Tommy and the third party purchased "manual play" tickets with the numbers provided by Tipton for the Colorado Lottery drawing in November 2005.

         ¶ 9 Iowa prosecutors filed two criminal complaints against Tipton - one for manipulation of the 2014 Iowa drawing and a second for engaging in an ongoing criminal enterprise to influence other state lotteries. They also charged Tommy with aiding and abetting thefts. The Tipton brothers pleaded guilty to the Iowa charges in June 2017. The State of Colorado agreed not to prosecute the brothers in exchange for a restitution agreement from Tipton to pay $1, 137, 980 (the total amount paid out to ...

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