Philadelphia Entertainment and Development Partners LP, the bankrupt limited partnership that did business as Foxwoods Casino Philadelphia (“Foxwoods”), will not be able to recover the $50 million it paid to the Pennsylvania Gaming Control Board for a slot machine license. Foxwoods planned to open a sizable slot machine facility in Philadelphia and paid for the license in 2007 before its location was final. Neighborhood opposition forced substantial delays and when Foxwoods missed a series of deadlines the Board revoked the license in December 2010.
Foxwoods filed for bankruptcy in 2014 after it unsuccessfully tried to get the license back in state court. In bankruptcy court, it brought a fraudulent transfer claim against the Commonwealth of Pennsylvania to recover the payment it made for the revoked license. The claim was initially dismissed in 2016, remanded on appeal, and then dismissed by the Eastern District of Pennsylvania on sovereign immunity grounds. Foxwoods appealed again, arguing it had a property interest in the revoked license. A sovereign immunity defense is not available in cases that further a bankruptcy court’s in rem jurisdiction. In other words, if Foxwoods had a property interest in the revoked license, the claim could move forward.
The Third Circuit, looking to the Pennsylvania Horse Racing Development and Gaming Act, found that Foxwoods did not have a property interest in the license. The Gaming Act provides that a license is a revocable privilege. It also provides that the license cannot be sold or transferred and that the Gaming Act should not be construed “to create in any person an entitlement to a license.” These comments conflict with the Pennsylvania Uniform Fraudulent Transfer Act commentary, which says that generally licenses should be considered property, even if they can’t be transferred. The Third Circuit resolved the conflict in favor of the Gaming Act because it found the more specific provisions govern the slot machine license at issue, ahead of PUFTA.
This case demonstrates that whether a government license is property for a fraudulent transfer action depends heavily on the specifics of the state’s laws for that license. As many states liberalize their gaming rules, their treatment of the licenses may not seem like a big deal, but in this case it cost Foxwoods $50 million. The story of Foxwoods’ license has a happy ending, at least for Philadelphia gamblers. The license was repurchased in November 2014 and under a new developer finally opened for business in February 2021, complete with 2,200 slot machines.
The case is In re Philadelphia Entertainment & Development Partners LP, No. 20-3171 (3d Cir. June 29, 2021).