The Encore Boston Harbor casino has been in full swing since June, drawing thousands of employees and gamblers every day to this slice of Vegas on the Mystic.
But Wynn Resorts’ old rival for the Boston-area casino license, Connecticut casino operator Mohegan Sun, hasn’t given up the fight, not by a long shot.
Mohegan is still asking a judge to invalidate a license that the Massachusetts Gaming Commission awarded to Wynn rather than Mohegan five years ago. Mohegan claims the commission provided unfair advantages back then, that the fix was in for Wynn. It’s not easy to forgive and forget — especially when there’s this much money at stake.
Mohegan and the commission resume their legal battle in Suffolk Superior Court on Tuesday. This showdown was essentially put on hold while the commission conducted a new review of Wynn’s suitability to operate the casino. The focus of this upcoming hearing: Mohegan’s lawyers at Foley Hoag want Judge Janet Sanders to amend their previous lawsuit against the commission to include events that have transpired during the past two years.
And what an eventful stretch it has been. The saga kicked off with a Wall Street Journal story in January 2018, outlining sexual misconduct allegations against company founder Steve Wynn. He was forced to step down as CEO, sell his stock, and exit the premises. The claims against the casino mogul prompted the Gaming Commission to conduct a second investigation, into whether the company and some of its remaining top executives were suitable to hold the casino license – basically who knew what, and when. (The company and its principals passed the commission’s first suitability test, but that was years before the #MeToo movement and the revelations that led to Steve Wynn’s downfall.)
The commission’s investigation took more than a year — longer than anyone expected. In April, the commission cleared Wynn Resorts to run Encore Boston Harbor, although not without imposing a $35 million fine. Not a moment too soon: There was less than two months to go before opening day for the $2.6 billion complex in Everett.
Now, Mohegan wants to amend its lawsuit to reflect the commission’s latest review. Mohegan accuses the commission of being capricious and abusing its discretion by finding Wynn Resorts, chief executive Matt Maddox, and major shareholder (and Steve Wynn’s former wife) Elaine Wynn suitable to be license holders.
The Gaming Commission’s response? Not so fast. Mohegan filed its proposed amended complaint on Aug. 2. The panel says Mohegan missed the statute of limitations for these kinds of claims, by not filing within 60 days of its April decision, and not honoring that time limit could possibly lead to an endless series of amended lawsuits. The commission’s lawyers from Anderson & Kreiger will make that argument in court on Tuesday.
Sanders may still grant Mohegan’s request, regardless, presumably with the hope that several years of legal wrangling would get closer to a final resolution.
It once seemed sensible for Mohegan to pour money into this case, but the motivation isn’t quite so clear anymore.
Maybe, at one point, Mohegan had its eyes on the prize: that coveted Boston-area license. Mohegan had been working with the then-owners of the Suffolk Downs racetrack for its bid, back in 2014. But the track has since been sold, and developer Tom O’Brien has grand plans for the 161-acre site on the East Boston-Revere line — plans that don’t include a casino.
Then there’s the math in Connecticut: The longer the Wynn casino’s opening was delayed, the more money presumably would be spent by gamblers at Mohegan Sun’s flagship casino instead. It’s not clear how much Mohegan’s suit slowed the construction, if at all. But that concern seems moot now that Encore Boston Harbor is open.
All along, Mohegan has been asking Sanders to vacate the commission’s 2014 license award to Wynn.
But Sanders, in a dismissal of a related case in July, indicated she would be reluctant to do so now. Such a remedy, she wrote, would have drastic consequences, essentially putting the commission back to square one, undoing years of work. Without a license, Encore Boston Harbor might very well have to close. The harm would be extensive, Sanders wrote, and possibly irreparable.
Still, Mohegan plows ahead. No one at the tribal headquarters in Uncasville must have been pleased by the arrival of this flashy interloper from Las Vegas. After all, there are only so many gambling dollars in New England to go around.