Judicial order might give publishers pause on ‘gaming’ ads

The courts have been active in early 2026: A U.S. District Court judge issued an order finding there was no chance “no chance” games were not gambling devices under Missouri law, and the Missouri Supreme Court modified libel law in the state.

I have been asked a few times on the hotline regarding advertising of so-called “no-chance” gaming. The question is basically this: Is “no-chance” gaming legal?

In February the U.S. District Court for the Eastern District of Missouri provided an answer in a declaratory judgment. In the civil case TNT Amusements, Inc., d/b/a Play-Mor Coin-Op v. Torch Electronics, LLC, Case No. 4:23-CV-330-JAR (E.D. Mo. Feb. 13, 2026), Judge John A. Ross concluded “the devices clearly meet the definition of gambling device in § 572.010…. Necessarily, then, outside of a licensed casino, the devices are prohibited in the state of Missouri – i.e., they are illegal.”

The plaintiff in the case, TNT Amusements, Inc., leases arcade games, dart boards and pinball machines in Missouri establishments. It had sued Torch, alleging that Torch’s “no-chance” devices were illegal slot machines that diverted their customers. The case went to trial in September 2025, and the jury found against Torch on two claims, unfair competition and false advertising under the Lanham Act, and awarded TNT $500,000 in damages. In a separate order directing Torch to partially disgorge profits, the Court noted that “consumers spent over $32 million on Torch devices” during the period at issue in the lawsuit and “had profited tremendously from its misrepresentations and had avoided regulation, taxation, and prosecution by virtue of its government relations efforts and the Gaming Commission’s limited jurisdiction. In this regulatory void, TNT’s lawsuit not only vindicates its own competitive interests but also protects consumers from the fallacy of ‘no-chance’ gaming going forward.” 

The court’s language in the decision impacts Missouri publishers in this way. The Missouri Merchandising Practices Act, which prohibits many advertisements that contain any “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact…” That act excludes newspapers and other “printed matter” from liability, but only “when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser…” Given that language, Judge Ross’s decision may give publishers some pause regarding ads on such devices.  

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In January, the Missouri Supreme Court removed a hurdle for defamation plaintiffs that required a party to prove, with testimony other than his own, reputational injury. In Apperson v. Kaminsky, the Court held that a person may prove harm to his reputation by his own testimony, as long as that testimony is more than merely conclusory or entirely subjective.

According to the decision, the plaintiff, Apperson, claimed two women defamed him when they told others that he had raped them, among other things:

“Apperson had romantic involvements with Kaminsky from 2012 to 2013 and with Norman from 2016 to 2017. After these involvements ended, Norman told more than one person Apperson raped and abused her, and Kaminsky told others (in person and through an extensive social media campaign intended to reach those with whom Apperson dealt personally and professionally) that Apperson stalked and raped her, was a serial rapist and serial abuser, was restrained from coming within 500 feet of her, and threatened to kill both her and Norman. As a result of these statements, Apperson was confronted in his home by a group of people (several of whom were armed) supporting Kaminsky and Norman. Because of this confrontation, Apperson was forced out of his home for seven months. Kaminsky’s statements also resulted in Apperson being asked not to patronize a local coffee shop, being made to disassociate himself from two organizations he founded, and losing a speaking engagement. Finally, Apperson was involuntarily removed from shared office space after Kaminsky told the management Apperson raped her and insisted management take action against him.”

An earlier Missouri Supreme Court case, Kenney v. Wal-Mart Stores, Inc., contained language suggesting that jury awards “based on plaintiff’s testimony alone” were unacceptable. This language had been interpreted in subsequent appellate decisions to mean that a defamation plaintiff in Missouri had to present some evidence, other than his own testimony, to win his case.

In the Apperson decision, the Missouri Supreme Court shut down this line of authority, calling Apperson’s testimony adequate to submit to a jury. Missouri still remains one of the states that requires proof of actual damages to win a defamation case. But now such proof can come from the plaintiff, making it incrementally harder for a defendant to win.