Francis M. Gagliardi - Page 32




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         Respondent did not call any witness, or expert witness, to                   
         counter Mr. Nicely’s conclusions.  We find Mr. Nicely to be                  
         credible and rely on his expert opinion.                                     
              Mr. Nicely credibly explained why he used the figures for               
         return to player (RTP) set forth in his report.  Mr. Nicely                  
         stated that the machines petitioner played are “class 2                      
         electronic pull tab machines” which have an RTP of between 55 and            
         90 percent.  The operating manual for such machines states that              
         the default setting is 80 percent RTP.                                       
              We conclude that Mr. Nicely’s “best case scenario” of 90                
         percent RTP (the figure normally used in the gaming industry) for            
         Mr. Gagliardi’s expected wins or losses was reasonable, given his            
         research,25 his expert opinion that the casinos at which Mr.                 


               25  Mr. Nicely never worked for any of the casinos where Mr.           
          Gagliardi gambled.  The casinos are under no obligation to                  
          publish their RTP.  Mr. Nicely researched the expected RTP at the           
          casinos in such publications as the Wall Street Journal (70                 
          percent RTP); the Sacramento Bee (90 percent RTP), which quoted             
          Bill Eadington (the director of Study for Center of Gambling and            
          Commercial Gaming at the University of Nevada Reno); and the                
          Orange County Register (90 percent RTP).  These news articles all           
          were about RTP at California Indian Nation casinos.                         
               Industry contacts of Mr. Nicely thought the casinos’ RTP was           
          in the low 80 percent range.  Mr. Nicely also testified that                
          Washington State promotes its Indian Nation gaming as having the            
          best RTP in the United States and lists the RTP as between 70               
          percent and 90 percent.                                                     
               Mr. Nicely also explained that on some slot machines a                 
          player can win a certain payout only if the player gambles the              
          maximum amount--known as “buy a bet”, “buy a pay”, or “buy a                
          bonus”.  The maximum expected RTP is obtained only by playing the           
          maximum bet on this type of machine.                                        





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