Appeal of Win Win Win, LLC

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by email at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: https://www.courts.nh.gov/our-courts/supreme-court. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ New Hampshire Lottery and Gaming Commission Case Nos. 2024-0722 2024-0723 Citation: Appeal of Win Win Win, LLC, 2026 N.H. 40 APPEAL OF WIN WIN WIN, LLC, d/b/a CONCORD CASINO & a. (New Hampshire Lottery and Gaming Commission) Argued: February 10, 2026 Opinion Issued: October 28, 2026 Nixon Peabody LLP, of Manchester (Mark T. Knights on the brief), and Simpson Thacher & Bartlett LLP, of Boston, Massachusetts (Zachary R. Hafer and Adam M. Katz on the brief, and Adam M. Katz orally), for the petitioners. John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Mary A. Triick, senior assistant attorney general, on the brief and orally), for the New Hampshire Lottery and Gaming Commission. PER CURIAM. [¶1] In this consolidated appeal, the petitioners, Win Win Win, LLC d/b/a Concord Casino (WWW) and Anthony M. Sanborn, challenge orders from the respondent, the New Hampshire Lottery and Gaming Commission (Commission), rendered in separate but related proceedings. From the first proceeding, the petitioners appeal the Commission’s orders denying their request to extend the deadline to sell WWW to a Commission-approved buyer pursuant to the terms of a forced-sale order. From the second proceeding, they appeal the Commission’s order denying a prospective buyer’s applications for certain gaming licenses for himself and WWW. We affirm. I. Background [¶2] The record supports the following facts. In 2018, WWW received licenses to operate a charitable gaming facility. In 2021, the Commission conducted a regularly scheduled audit of WWW that revealed several instances of inaccurate or insufficient financial documentation. In 2022, the Commission conducted a subsequent audit that raised concerns about WWW’s application for, and use of, an Economic Injury Disaster Loan (EID loan) from the United States Small Business Administration. [¶3] In 2023, the Commission and the Attorney General (AG) conducted a “suitability review” of Sanborn and WWW to determine if they should remain involved with charitable gaming in New Hampshire. See RSA 287-D:11, II-III (2016 & Supp. 2023) (providing that any person or entity holding a facilities or game operator employer license shall file a written statement every five years, and the Commission and the AG shall investigate the license holder to determine if they are suitable to be associated with charitable gaming). After that review, the Commission and the AG determined that neither Sanborn nor WWW was suitable to be associated with charitable gaming because there was credible evidence that Sanborn and WWW unlawfully obtained the EID loan and that Sanborn used the proceeds from that loan for purchases not permitted by the loan. [¶4] Following that determination, the Commission initiated an administrative action against WWW to suspend or revoke its licenses. See RSA 287-D:23, III (Supp. 2023) (“The lottery commission may suspend or revoke the license of any licensee who violates any provision of this chapter or for just cause shown.”); RSA 287-D:2 (2016) (“The lottery commission, with the assistance of the attorney general and the chief of police of any city or town where games of chance are held, shall administer and enforce the provisions of this chapter.”); see also RSA 287-D:11, III(a) (providing that if the Commission and the AG determine that the license holder is unsuitable to be associated with charitable gaming, that person or entity shall not continue to hold a license). After a hearing, the Commission determined that WWW’s conduct violated RSA chapter 287-D and issued an order suspending WWW’s licenses to operate as a gaming facility (the forced-sale order). The order further provided that if WWW was not sold to a Commission-approved buyer within six months, then WWW’s license suspension would be converted into a revocation. The order permitted WWW to request a three-month extension in order to complete a sale if one was pending at the end of the six-month period. 2  [¶5] The petitioners found a willing buyer. Sanborn and the buyer entered into a purchase and sale agreement for the sale of WWW. The purchase and sale agreement provided that the buyer was not required to complete the transaction until he obtained a games operator employer license and games of chance facility license for WWW. See RSA 287-D:7-:8 (Supp. 2023). The buyer applied to the Commission for those licenses. [¶6] As the deadline to complete the sale under the terms of the forced- sale order approached, the Commission had yet to complete its review of the license applications. Specifically, the parties were waiting for the Commission and the AG to determine whether the buyer and WWW were suitable to be associated with charitable gaming. See RSA 287-D:11, III(a). The petitioners moved to extend the deadline to sell WWW pursuant to the forced-sale order until fifteen days after the Commission and the AG completed the suitability review. The Commission denied the motion but stayed the portion of the forced-sale order that would convert the suspension of WWW’s licenses into a revocation (the extension of time order). The stay was effective until thirty days after the Commission issued a notice of decision on any motion for rehearing on the extension of time order. The petitioners moved for rehearing. [¶7] While that motion was pending, by letter dated October 30, 2024, the Commission informed the buyer of the results of the suitability review. The Commission stated that its investigator raised “serious concerns about [the buyer’s] application and the materials submitted” and that it forwarded its report on the matter to the AG’s office. The AG’s office reviewed the application and materials and concluded that “[the buyer] and WWW are unsuitable to be associated with charitable gaming in New Hampshire” on two grounds: first, “Mr. Sanborn’s continued involvement with and connection to WWW” after the closing of the proposed transaction and, second, the buyer’s failure “to demonstrate the financial capacity” to meet his obligations under the proposed transaction. The Commission stated in its letter, “in light of our initial concerns and the Attorney General’s Office’s determination, the Lottery Commission must issue a denial of the application at this time.” The buyer and the petitioners unsuccessfully moved for rehearing. [¶8] On November 25, 2024, the Commission issued an order in which it determined that the pending filings regarding the petitioners’ motion for an extension of time were moot because the petitioners had received the relief they requested, i.e., WWW’s licenses were not revoked until more than fifteen days after the Commission and the AG completed the suitability review. The petitioners filed a motion requesting clarification as to whether the mootness order was effective immediately — meaning that the Commission could revoke WWW’s licenses — and requesting that the mootness order be stayed. The Commission issued an order clarifying that the mootness order was effective immediately and denying WWW’s request to stay the order. On November 26, 3 2024, the Commission issued an order revoking WWW’s games operator employer license and games of chance facility license. These appeals followed. II. Analysis [¶9] On appeal, the petitioners challenge the Commission’s orders denying: (1) the license applications; and (2) their request for an extension of time to comply with the forced-sale order. We address these challenges in turn. A. License Applications [¶10] The petitioners challenge the Commission’s order denying the license applications. The Commission argues that the petitioners lack standing. The petitioners counter that they have suffered an injury resulting from the denial of the license applications sufficient to confer standing. We hold that the petitioners have standing to appeal the Commission’s order. [¶11] Standing implicates the court’s subject matter jurisdiction and it may be raised at any time in a proceeding. See Appeal of Stonyfield Farm, 159 N.H. 227, 231 (2009). Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought; it is the extent to which a court can rule on the conduct of persons or the status of things. Lonergan v. Town of Sanbornton, 175 N.H. 772, 775 (2023). In other words, it is a tribunal’s authority to adjudicate the type of controversy involved in the action. Id. A tribunal lacks power to hear or determine a case that concerns subject matter over which it has no jurisdiction. Id. Thus, in the absence of subject matter jurisdiction, a tribunal’s order is void and the appellate tribunal acquires no jurisdiction over the merits upon appeal. Id. [¶12] The Commission’s order denying the license applications was issued pursuant to RSA 287-D:11, III(a). This appeal is therefore governed by RSA chapter 541. See RSA 287-D:24 (2016). Accordingly, the requirements to establish standing to appeal the Commission’s decision are set forth by statute. See RSA 541:3, :4, :6 (2021). To establish standing to appeal an administrative agency decision under RSA chapter 541, a party must demonstrate that its rights may be “directly affected” by the decision, or in other words, that it has suffered or will suffer an injury in fact. Appeal of Union Tel. Co., 160 N.H. 309, 313 (2010); Appeal of Richards, 134 N.H. 148, 154 (1991); see also RSA 541:3, :4. To show an injury in fact, the alleged harm cannot be speculative. Appeal of N.H. Right to Life, 166 N.H. 308, 314 (2014). “Another way of formulating the injury in fact requirement is that no individual or group of individuals has standing to appeal when the alleged injury caused by an administrative agency’s action affects the public in general.” Id. (quotations and brackets omitted). Similarly, standing to challenge an administrative agency’s action cannot be based upon a mere interest in a problem. See id. 4  [¶13] The issue before the Commission was approval of the license applications. The buyer filed applications for game operator employer licenses and games of chance facility licenses for himself and WWW. Accordingly, the buyer and WWW were directly affected by the decision because they both, as a direct result of the Commission’s decision, were denied the licenses. Cf. Stonyfield Farm, 159 N.H. at 231 (explaining that a party lacked standing in an RSA chapter 541 appeal because it had not suffered an “immediate or direct injury”); Richards, 134 N.H. at 154-57. Because WWW was directly affected by the Commission’s order and timely filed a motion for rehearing, WWW has RSA chapter 541 standing to appeal the Commission’s order. See RSA 541:3 (providing that “any person directly affected” by an order or decision of the Commission may apply for rehearing within thirty days); RSA 541:4 (providing that no appeal from any order or decision of the Commission shall be taken “unless the appellant shall have made application for rehearing as herein provided”); RSA 541:6. [¶14] We also conclude that Sanborn has standing to appeal the Commission’s decision. Sanborn and the buyer had a signed purchase and sale agreement for the sale of WWW. That sale was contingent upon the buyer and WWW receiving the licenses. By denying the license applications, the Commission’s order had the effect of preventing the sale of WWW from proceeding, which caused a direct financial injury to Sanborn. Sanborn’s alleged injury is not shared with the public in general, nor is it a mere interest in a problem. See N.H. Right to Life, 166 N.H. at 314-15 (holding that an appellant lacked RSA chapter 541 standing to challenge an agency’s licensing decision because it was not the applicant and only asserted a “generalized interest in helping the public”). Because Sanborn has a direct financial interest in the outcome of this particular licensing decision and timely filed a motion for rehearing, he has standing to appeal the Commission’s decision. See RSA 541:3, :4, :6; N.H. Right to Life, 166 N.H. at 314-15; cf. Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 544-45 (1979) (holding that property owners may have standing to appeal zoning board decisions if they have a sufficiently direct interest in the outcome of a proceeding, which depends upon such factors as “the proximity of the plaintiff’s property to the site for which approval is sought, the type of change proposed, the immediacy of the injury claimed, and the plaintiff’s participation in the administrative hearings”). [¶15] We now turn to the merits of the petitioners’ appeal of the Commission’s order. The Commission and the AG reviewed the license applications and jointly determined that the buyer and WWW were unsuitable to be associated with charitable gaming under the proposed sale terms. See RSA 287-D:11, III(a). Accordingly, the Commission issued an order denying the license applications. See id. The petitioners argue that the Commission’s order was not supported by the record. 5  [¶16] We will not set aside the Commission’s order “except for errors of law,” unless we are satisfied “by a clear preponderance of the evidence” before us “that such order is unjust or unreasonable.” RSA 541:13 (2021). The Commission’s factual findings “shall be deemed to be prima facie lawful and reasonable.” Id. [¶17] RSA 287-D:11, III(a) provides: The lottery commission shall notify the attorney general of the receipt of an application under this chapter, and in concert and consultation with the attorney general, the lottery commission shall conduct an investigation of the license applicant . . . . Any appropriate state or federal law enforcement system may investigate the subject’s financial, criminal, or business background, or any other information which the lottery commission or attorney general may find to bear on the subject’s suitability to be associated with charitable gaming in New Hampshire, including, but not limited to, the subject’s character, personal associations, and the extent to which the subject is properly doing business in the manner in which it purports to operate. When the lottery commission initiates such an investigation, the lottery commission shall report the results of such investigation to the attorney general within 45 days after the initiation of the investigation. The attorney general and the lottery commission shall confer and determine, if in their opinion, such person is suitable to be associated with charitable gaming in New Hampshire and upon a determination that the person is not suitable, the person shall not be issued or continue to hold a license. [¶18] The Commission and the AG jointly determined that the buyer and WWW were unsuitable to be associated with charitable gaming for two reasons. First, under the terms of the proposed transaction, Sanborn would continue to be involved with and connected to WWW after the sale. Second, the buyer failed to demonstrate that he had the financial capacity to meet his obligations under the proposed transaction, and therefore failed to show that he is financially suitable to be associated with charitable gaming. [¶19] Regarding the former reason, the Commission and the AG may consider the applicant’s “personal associations” and “any other information which the lottery commission or attorney general may find to bear on the subject’s suitability to be associated with charitable gaming in New Hampshire” in their suitability determination. RSA 287-D:11, III(a). Here, Sanborn would have ongoing connections to WWW after the sale pursuant to the terms of the proposed transaction. Those connections include: (1) an LLC — in which 6 Sanborn is identified as the managing member — leasing space to WWW after the sale; (2) Sanborn receiving payments based upon WWW’s earnings for a certain number of years after the sale; and (3) Sanborn receiving proceeds from a future sale of WWW unless certain conditions are met. Sanborn would have those ongoing connections to WWW despite the fact that the Commission previously found that WWW made misrepresentations on an EID loan application and that Sanborn spent funds from that loan on purchases not permitted by the loan, resulting in the forced-sale order. Given this statutory backdrop and these prior proceedings, it was not unlawful or unreasonable for the Commission to consider Sanborn’s continued association with WWW after the sale under the terms of the proposed transaction as negatively impacting the buyer’s and WWW’s suitability to be associated with charitable gaming. See id. [¶20] Regarding the latter reason, the Commission and the AG may consider the buyer’s financial circumstances in their suitability determination. See id. Here, payment of the base purchase price for WWW was split into multiple steps, with a portion due at closing and the bulk of the purchase price due after closing when the buyer met several conditions. The amount due at closing alone was over ten times the amount of cash the buyer had on hand, as reflected in the financial documentation he submitted with his applications. Further, as described above, the purchase and sale agreement required various payments from the buyer to Sanborn after closing, and some of those future obligations — which the buyer would be responsible for paying if certain conditions were met — approached or exceeded the buyer’s net worth, as reflected in his application materials. The petitioners do not argue that, at the time of the Commission’s decision, the buyer had obtained financing to meet those obligations. On this record, we cannot conclude that the Commission’s and the AG’s determination that the buyer had not demonstrated the financial capacity to meet his obligations under the proposed transaction was unlawful or unreasonable. Accordingly, we hold that the petitioners have not demonstrated that the Commission’s order denying the license applications was unlawful or unreasonable, and we affirm that order. B. Extension of Time [¶21] The petitioners challenge: (1) the extension of time order; and (2) the Commission’s decision on their motion for rehearing concluding that their motion for an extension of time was moot. The extension of time order was issued pursuant to RSA chapter 287-D. Thus, this issue is also governed by RSA chapter 541. See RSA 287-D:24. [¶22] During the reconsideration period on the extension of time order, the Commission concluded that the petitioners’ motion was moot. Specifically, the Commission reasoned that the petitioners effectively received the relief they 7 requested. Generally, a matter is moot when it no longer presents a justiciable controversy because the issues involved in the case have become academic or dead. Petition of K.S., 177 N.H. 79, 85 (2024), 2024 N.H. 62, ¶13. An issue that has already been resolved is not entitled to judicial intervention. Id. However, mootness is not subject to rigid rules, but is a matter of convenience and discretion. Id. A case may not be moot if it presents legal issues that are of pressing public interest and that are capable of repetition yet evading review. Id. [¶23] We hold that the Commission correctly determined that the petitioners’ motion for an extension of time was moot. The petitioners in effect received the extension of time that they requested because WWW’s licenses were not revoked until more than fifteen days after the suitability review had been completed and the license applications had been denied. In addition, the petitioners’ arguments on this issue present narrow questions of statutory interpretation, specifically regarding the Commission’s statutory authority to modify and enforce its orders. These arguments are not “of pressing public interest and . . . capable of repetition yet evading review.” Id. Accordingly, we hold that the Commission correctly concluded that the petitioners’ motion for an extension of time was moot, and we affirm its decision. See id. C. Due Process [¶24] We observe that the petitioners request that we vacate the Commission’s orders and remand with instructions that they be given an additional twelve months to comply with the forced-sale order. They argue that they are entitled to this relief because, among other reasons, the process they received before the Commission while attempting to comply with the forced-sale order did not comport with the requirements of “due process,” based upon their assertion that the Commission’s reasons for denying the license applications were “pretextual” and the Commission and the AG acted in bad faith to obstruct the sale. They do not cite either the State or Federal Constitution in their brief. Nor does it matter which constitution the petitioners may have intended to invoke, because these arguments are not properly before this court. [¶25] As previously stated, because the orders on appeal were issued pursuant to RSA chapter 287-D, these appeals are governed by RSA chapter 541. See RSA 287-D:24. RSA 541:3 provides that any person directly affected by a decision can apply for rehearing, “specifying in the motion all grounds for rehearing.” In turn, RSA 541:4 requires that the motion “set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable” and provides: No appeal from any order or decision of the commission shall be taken unless the appellant shall have made application for rehearing as herein provided, and when such application shall 8  have been made, no ground not set forth therein shall be urged, relied on, or given any consideration by the court, unless the court for good cause shown shall allow the appellant to specify additional grounds. [¶26] Upon reviewing the record, we conclude that the petitioners did not raise a due process argument or request an additional twelve months to comply with the forced-sale order in a motion for rehearing with respect to any of the orders on appeal. See RSA 541:4. With respect to the petitioners’ appeal of the denial of the license applications, the only reference to due process in the motion for rehearing was one sentence in which the petitioners argued that the Commission’s reliance on Sanborn’s presale conduct in its suitability determination was “illogical and contrary to due process principles.” The petitioners’ vague assertion that the Commission’s decision was “contrary to due process principles,” without reference to a specific constitution, a developed argument, or legal authority, was insufficient to raise a due process argument before the Commission. See State v. Oakes, 161 N.H. 270, 285 (2010) (holding that a defendant failed to preserve his federal constitutional argument because he “did not refer to the Federal Constitution” before the trial court); State v. Plante, 134 N.H. 456, 459 (1991) (holding that constitutional arguments were not preserved when “the constitutional dimension of the defendant’s argument was not called to the trial court’s attention”). With respect to the petitioners’ appeal of the extension of time order, there was no reference to due process, nor a request for a twelve-month extension, in the petitioners’ motion for rehearing. [¶27] Further, the petitioners do not argue, and we do not find, that there is good cause to allow them to specify additional grounds now. See RSA 541:4. The petitioners asserted in their motion for an extension of time that the Commission and the AG were acting in bad faith by attempting to block the sale. For example, the petitioners asserted in that motion that the Commission and the AG had, among other things, “attempted to scare off buyers (in multiple instances, succeeding).” Thus, the petitioners could have requested an additional twelve months to comply with the forced-sale order or raised a due process argument in their motion for rehearing on the extension of time order, or they could have raised a due process argument in their subsequent motion for rehearing on the denial of the license applications, but they did not do so. Accordingly, these arguments are not properly before this court, and we decline to consider them. See Appeal of Lakes Region Water Co., 171 N.H. 515, 524-25 (2018) (declining to consider an argument in an RSA chapter 541 appeal because it was not included in a motion for rehearing); Appeal of Silva, 172 N.H. 183, 192 (2019). [¶28] We have considered the petitioners’ remaining arguments in these appeals, and we conclude that they do not require further discussion. See 9 Vogel v. Vogel, 137 N.H. 321, 322 (1993). For the foregoing reasons, we affirm the Commission’s orders. Affirmed. DONOVAN, COUNTWAY, and WILL, JJ., concurred; MACDONALD, C.J., sat for oral argument but did not participate in the final vote. 10