Full opinion text
MEMORANDUM OPINION AND ORDER W. KEITH WATKINS, District Judge. Given the complexity of this case and for the reader’s convenience, this opinion is prefaced with the following table of contents. I. INTRODUCTION........................................................1086 II. JURISDICTION AND VENUE............................................1088 III. STANDARD OF REVIEW................................................1088 IV. BACKGROUND.........................................................1090 A. Ratification of Amendment No. 744....................................1090 B. Parties .............................................................1090 C. Sheriff Warren’s Rules and Regulations Governing Bingo in Macon County............................................................1093 1. Original Rules (December 2003) ...................................1093 2. First Amended Rules (June 2004)..................................1097 3. Second Amended Rules (January 2005).............................1098 4. VictoryLand’s Electronic Bingo Licenses...........................1100 5. VictoryLand’s and the Charities’ Income...........................1102 6. Lucky Palace’s Pursuit of Class B Bingo Operations in Macon County........................................................1103 7. This Lawsuit (December 2006).....................................1106 8. Third Amended Rules (December 2008).............................1107 V. DISCUSSION............................................................1108 A. RICO (Counts I and II) ..............................................1108 1. § 1962(c) — Count I...............................................1108 a. Bribery: Alabama Code § 13A-10-61(a)........................1109 i. Nature of the Theory.....................................1109 ii. Grounds for Summary Judgment..........................1110 iii. Thing of Value, Pecuniary Benefit, and Corrupt Influence.............................................1110 iv. Alabama Bribery Law....................................1112 v. Application .............................................1115 b. Honest Services Mail and Wire Fraud: § 1962(c)................1119 i. Nature of the Theory.....................................1119 ii. Initial Observation: Skilling .............................1120 iii. Grounds for Summary Judgment..........................1122 iv. § 1964(c): RICO Standing................................1123 a. Injury to Business of Property........................1123 b. Proximate Cause ....................................1125 2. § 1962(d) — Count II..............................................1134 B. Equal Protection (Counts III and IV)..................................1134 1. Vice Activities...................................................1136 2. Facial Challenges to the Second Amended Rules (The First Category)......................................................1137 a. Rational Basis Review........................................1137 b. Existing Facility Requirement................................1140 c. Numerical Licensing Requirements............................1145 d. Plaintiffs’ Arguments Against Rational Basis Review...........1150 3. Disparate Impact (Second Category)...............................1153 4. Unequal Administration of a Facially Neutral Statute (Third Category)......................................................1155 a. Nature of the Theory.........................................1155 b. Analysis......................................................1156 i. Intentional Discrimination...............................1156 (a) E & T Realty and Olech..............................1156 (b) Analysis.............................................1159 ii. Similarly Situated.......................................1162 c. Conclusion ..................................................1167 5. § 1983 Conspiracy to Deny Equal Protection........................1167 a. Defendants’ Summary Judgment Motion.......................1167 b. Plaintiffs’ Summary Judgment Motion.........................1168 C. Issues Particular to Sheriff Warren’s Summary Judgment Motion........1168 1. Absolute Legislative Immunity....................................1168 2. Qualified Immunity..............................................1170 3. Article III Standing..............................................1170 4. Exhaustion of Administrative Remedies............................1173 5. Equal Protection Claims and Statute of Limitations: RG Apartments and Greater White Church...........................1173 a. Count III....................................................1174 b. Count IY....................................................1176 D. State Law Claims Against Mr. McGregor and VictoryLand ..............1177 1. Tortious Interference with Contractual or Business Relationships (Count V)......................................................1178 a. Knowledge (Element Two)....................................1178 i. Plaintiffs’ Arguments....................................1178 ii. Defendants’ Arguments..................................1179 iii. Analysis................................................1180 b. Intentional Interference (Element Four).......................1182 c. Summary....................................................1185 2. Tortious Interference with Prospective Business Relationships (Count VI).....................................................1185 3. Statute of Limitations............................................1188 4. Summary........................................................1190 VI. CONCLUSION ..........................................................1190 VII. ORDER.................................................................1192 I. INTRODUCTION Before 1983, Macon County, Alabama, was primarily known as the home of historic Tuskegee Institute, now Tuskegee University, and its famous founder and first president, Dr. Booker T. Washington. The quiet hamlet began to awaken in 1983 when parimutuel gambling came to Macon County in the form of VictoryLand greyhound racing. Officially named Macon County Greyhound Park, Inc., Victory-Land was and still is run by its president and majority shareholder, Milton McGregor. In 2003, with dog racing having run its course, so to speak, the Alabama legislature proposed a constitutional amendment allowing “charitable” bingo in Macon County, and a majority of the qualified Macon County voters favored the amendment. Lest the reader deduce that Alabama requires a constitutional amendment for mere games of pleasure such as, say, Monopoly® or canasta, what the Alabama legislature had in mind was charitable bingo gambling. And what others had in mind was electronic bingo gambling, though the word “electronic” does not appear in the amendment. The constitutional amendment charged the sheriff of Macon County with writing the regulations and with enforcing them. The word “electronic” surfaced in the sheriffs regulations governing bingo in Macon County. The regulations were written and adopted within thirty-one days of the passage of the constitutional amendment, and within thirteen days after that, charitable electronic bingo was licensed by Sheriff Warren at VictoryLand. (According to the regulations, charities have to be licensed first and then contract, if they wish, with an operator of electronic bingo gaming. VictoryLand is a for-profit operator of charitable electronic bingo, operating under an operator’s license, for nonprofit organizations that have bingo licenses. The distinction between the operator’s license and the charity bingo license is important.) Since December 2003, VictoryLand has been the only “qualified location” for charitable electronic bingo licensed by the sheriff of Macon County. It is said that charity begins at home, and by any measure short of the national debt, charitable electronic bingo in Macon County was immediately, and has continued to be, successful for VietoryLand and its investors. It is not surprising, then, that other charitable-minded business people noticed an opportunity. In 2004, with some Macon County charities in tow, Lucky Palace, Inc., formed by its president Paul Bracy after the passage of the constitutional amendment, began a conversation with Sheriff Warren about licensing another electronic bingo operation in Macon County in competition with VietoryLand. Soon thereafter, in June 2004, Sheriff Warren amended the regulations, making the licensing of electronic bingo a bit more challenging. Nevertheless, Lucky Palace continued its planning and stayed in touch with Sheriff Warren. After charitable electronic bingo drew the attention of the public and the Attorney General of Alabama, the Attorney General conducted a road trip investigation of electronic bingo and issued a written news release on the topic in late 2004. Sheriff Warren articulated the findings in that news release as the reason he amended the regulations again, on January 1, 2005, this time to redefine “bingo” and to limit the number of available charity licenses for electronic bingo in Macon County. Lucky Palace filed an application for an operator’s license with Sheriff Warren in November 2004, which was denied in January 2005. The reason given for the denial was that Lucky Palace did not have a “qualified location” for electronic bingo in Macon County. By “qualified location” the sheriff meant a completed facility ready to inspect. The charities which had aligned with Lucky Palace filed an application for their licenses in July 2005; Sheriff Warren denied their applications on the same basis, that there was no “qualified location.” To date, no Plaintiff has received a license from Sheriff Warren. In an attempt to cover its bets, and considering that the regulations had been amended twice in thirteen months, Lucky Palace took a political detour in 2006 and tried to defeat Sheriff Warren in his reelection bid. Sheriff Warren took Lucky Palace to the woodshed, winning an overwhelming reelection victory. Lucky Palace and its charities, having not been so lucky, turned to the courts for relief. That is this case, which is against Sheriff Warren, VietoryLand and Mr. McGregor. As it turns out, Sheriff Warren had considerable help drafting the bingo regulations and subsequent amendments. After a conversation with Mr. McGregor within a week or so of the passage of the constitutional amendment, Sheriff Warren called his own lawyer to help with drafting the regulations. That lawyer is the son and law partner of the lawyer who has represented VietoryLand and has been a minority shareholder in VietoryLand since its founding in 1983. Mr. McGregor offered the services of other attorneys retained by him or VietoryLand, an offer Sheriff Warren’s attorney accepted. Because VietoryLand attorneys had a hand in drafting the regulations adopted by the sheriff, Lucky Palace and its charities allege that VietoryLand corruptly influenced Sheriff Warren’s lawyer to draft and recommend regulations and amendments thereto, by bribery, loss of honest services, and conspiracy to do the same, all in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and to the damage of Plaintiffs. (None of the involved attorneys is a party to this suit, however.) Moreover, Plaintiffs allege violations of their right to equal protection under the United States Constitution through 42 U.S.C. § 1983 in what they claim is unequal treatment by Sheriff Warren and his regulations, and the conspiracy of all Defendants to violate the Constitution to the detriment of Plaintiffs. Finally, Plaintiffs contend Alabama law has been violated by Mr. McGregor’s and VictoryLand’s unlawful interference with business and contractual relations between Lucky Palace and its charities, and with unnamed future patrons of a proposed Lucky Palace charitable electronic bingo operation. Plaintiffs seek money damages and injunctive relief. These claims are before the court on motions for summary judgment. Presently pending are: (1) One motion filed by Mr. McGregor and VictoryLand (Doc. # 421); (2) six motions filed by Sheriff Warren (Docs. # 423, 425, 427, 429, 431, 433); (3) and one motion filed by Plaintiffs (Doc. # 445). The motions have been fully briefed, and are ready for adjudication. II. JURISDICTION AND VENUE The parties do not dispute subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367; nor do the parties contest personal jurisdiction or venue. There are adequate allegations in support of each. III. STANDARD OF REVIEW “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) (per curiam) (citation and internal quotation marks omitted); Fed.R.Civ.P. 56(c) (Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24, 106 S.Ct. 2548. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Fed.R.Civ.P. 56(e)(2); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) (“Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment.”). Furthermore, “[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) (per curiam) (citation and internal quotation marks omitted). A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11 th Cir.2001). However, if the evidence on which the nonmoving party relies “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). “A mere ‘scintilla’ of evidence supporting the [nonmovant’s] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party,” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990), and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (per curiam) (A plaintiffs “conclusory assertions ... in the absence of supporting evidence, are insufficient to withstand summary judgment.”). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., All U.S. at 323, 106 S.Ct. 2548 (“[F]ailure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”). Thus, in cases where the evidence before the court is admissible on its face or can be reduced to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex Corp., All U.S. at 323-24, 106 S.Ct. 2548 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact). The standard of review is unaffected by the filing of cross-motions for summary judgment. See Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir.2001); see also Monumental Paving & Excavating, Inc. v. Pa. Mfrs. ’ Ass’n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999) (“When considering motions from both parties for summary judgment, the court applies the same standard of review and so may not resolve genuine issues of material fact. Instead, [it must] consider and rule upon each party’s motion separately and determine whether summary judgment is appropriate as to each under the Rule 56 standard.” (citations omitted)). IV. BACKGROUND A. Ratification of Amendment No. 744 On November 4, 2003, in a referendum, a majority of the qualified electors in Macon County, Alabama, approved a proposed constitutional amendment, which became Amendment No. 744 to the Alabama Constitution. See Ala. Const. 1901 amend. No. 744; see also Ala. Const. 1901 Art. XVIII § 284.01 (Recomp.) (Amend. No. 425 & Amend. No. 555). Amendment No. 744 makes it legal for nonprofit organizations to operate bingo in Macon County and requires the sheriff to promulgate rules and regulations governing licensing and operation of the county’s bingo games. B. Parties Defendant Macon County Greyhound Park, Inc., which does business as Victory-Land (“VietoryLand”), currently operates the only electronic bingo facility in Macon County, Alabama. VietoryLand was incorporated in 1983 for the purpose of conducting parimutuel wagering in Macon County. Defendant Milton McGregor (“McGregor”) is VictoryLand’s president and majority shareholder. (McGregor Dep. 66-67 (Ex. 3 to Doc. # 443 & Ex. I to Doc. #446).) VictoryLand operates electronic bingo under the rules and regulations as implemented, amended, and enforced by Defendant David Warren (“Sheriff Warren”). In November 2003, and at all relevant times to this litigation, Warren was the sheriff of Macon County. Plaintiff Lucky Palace, LLC (“Lucky Palace”), also desires to conduct electronic bingo operations in Macon County, but, as detailed later, Sheriff Warren’s rules, as amended, have been applied so as to preclude it from doing so. In a nutshell, the current form of the rules requires Class B Bingo Licenses for electronic bingo to be issued only to nonprofit organizations, which in turn can contract with an operator to run electronic bingo gaming. However, “[a]t no time shall there be issued and outstanding more than sixty (60) Class B Licenses for the operation of bingo in Macon County.” (2d Am. Rules § 2.) Victory-Land operates electronic bingo at its greyhound racing facility for sixty nonprofit organizations that are Class B Bingo License-holders, meaning that no more Class B Bingo Licenses are available in Macon County (until an incumbent licensee surrenders it license or a licensee loses its license). (Warren Dep. 113 (Ex. 8 to Doc. # 443 & Ex. M to Doc. # 446).) Presently joined with Lucky Palace as plaintiffs in this lawsuit are fifteen Macon County nonprofit organizations (“Plaintiff Charities”) that have contracted with Lucky Palace to conduct electronic bingo at a presently undeveloped location in Macon County. The Plaintiff Charities are: (1) Hope for Families & Community Services, Inc.; (2) Beulah Missionary Baptist Church; (3) E.D. Nixon Apartments, Inc.; (4) Greater White Church; (5) McRae Prostate Cancer Awareness Foundation; (6) Milstead Community Center, Inc.; (7) New Elam Missionary Baptist Church; (8) RG Apartments, Inc.; (9) Shorter Community Development, Inc.; (10) Shorter Lodge # 533; (11) Shorter Volunteer Fire Department; (12) Sweet Gum AME Zion Church; (13) Tabernacle Baptist Church; (14) Tubman Gardens, Inc.; and (15) Tuskegee Macon County Community Foundation, Inc. (6th Am. Compl. (Doc. # 342).) The operative complaint, which is the Sixth Amended Complaint, also implicates three “relevant non-parties.” (6th Am. Compl. ¶¶ 25-27.) They are: (1) the law firm of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, P.C. (“Gray Law Firm”), an Alabama professional corporation; (2) Fred D. Gray Sr. (“Gray Sr.”), who is Mr. Gray Jr.’s father, and who is an attorney and the majority owner of the Gray Law Firm (Gray Sr. Dep. 25-26, 233 (Ex. 14 to Doc. #443 & Ex. F to Doc. # 446)); and (3) Fred D. Gray Jr. (“Gray Jr.”), who, as an associate in the Gray Law Firm, represented Sheriff Warren in drafting the bingo rules and regulations and certain amendments to those rules. (See generally Gray Jr. Dep. (Ex. 13 to Doc. # 443 & Ex. G to Doc. # 446).) The Gray Law Firm has performed legal work for VictoryLand since 1983, but does not represent VictoryLand in this lawsuit. (McGregor Aff. ¶ 10 (Ex. 39 to Doc. # 441); Gray Sr. Aff. 1, 3 (Ex. 2 to Doc. # 445).) Since 1984, VictoryLand has paid the Gray Law Firm a quarterly retainer, and the amount of the retainer has not changed. (McGregor Aff. ¶ 11; Gray Sr. Dep. at 54-55 (Ex. 14 to Doc. # 443).) The Gray Law Firm also has received other payments from VictoryLand for legal representation in litigation and other matters. (VictoryLand Receipts, FGJ0174, FGJ0217, FGJ0220-21 (Ex. 4 to Doc. # 445); Gray Sr. Dep. 47; McGregor Dep. 77, 84.) Mr. Gray Sr. has represented VictoryLand on non-bingo legal matters continuously since 1983. (Gray Sr. Aff. 1-2; McGregor Dep. 198.) Mr. Gray Sr. and Stanley Gray are the primary attorneys in the Gray Law Firm who have represented VictoryLand. (Gray Sr. Aff. 3; Gray Sr. Dep. 62.) Mr. Gray Sr. typically determines which lawyers work on which VictoryLand matters. (Gray Sr. Aff. 3) In addition to being a shareholder of the Gray Law Firm, Mr. Gray Sr. also has been a minority shareholder in Victory-Land since 1983, and has received dividend payments as a VictoryLand shareholder based upon an ownership percentage that has never changed. (Gray Sr. Aff. 1-2.) He has received regular shareholder dividends from VictoryLand based on his ownership interest in the company. (McGregor Aff. ¶¶ 13, 16-17; Gray Sr. Dep. 47.) Mr. Gray Jr. “ha[s] been [Sheriff Warren’s] attorney for years” (Warren Dep. 50-51 (Ex. 8 to Doc. #443 & Ex. M to Doc. # 446); Gray Jr. Dep. 57), and in that capacity, rendered legal advice regarding all versions of the bingo rules promulgated by Sheriff Warren. (Gray Sr. Aff. 2; Warren Dep. 52-55, 69-70.) C. Sheriff Warren’s Rules and Regulations Governing Bingo in Macon County At the core of this litigation are the rules promulgated by Sheriff Warren pursuant to the authority vested in him by Amendment No. 744. See Ala. Const.1901 amend. No. 744 (“The sheriff shall promulgate rules and regulations for the licensing and operation of bingo games within the county.”). The Original Rules have been amended three times, pursuant to a section in all versions of the Rules that “reserves” the sheriffs “right to amend” them “from time to time as necessary.” (See Original Rules, effective Dec. 5, 2003 (Ex. A to Doc. # 342); 1st Am. & Restated Rules & Regulations for the Licensing & Operation of Bingo Games in Macon County, Alabama, effective June 2, 2004 (Ex. B to Doc. # 342); 2d Am. & Restated Rules & Regulations for the Licensing & Operation of Bingo Games in Macon County, Alabama, effective Jan. 1, 2005 (Ex. C to Doc. # 342); 3d Am. & Restated Rules & Regulations for the Licensing & Operation of Bingo Games in Macon County, Alabama, effective Dec. 15, 2008 (Ex. D to Doc. # 342).) 1. Original Rules (December 2003) Sheriff Warren adopted the Original Rules thirty-one days after the passage of Amendment No. 744. In summary, two types of bingo licenses are authorized by the Original Rules: Class A Bingo Licenses (paper bingo) and Class B Bingo Licenses (electronic bingo). (See, e.g., Original Rules §§ 1(g), (h) & 4.) Nonprofit organizations are permitted to operate bingo games, but must have a license from the sheriff of Macon County to do so. To obtain a Class B Bingo License, a nonprofit organization must complete an application and submit it to the sheriff for approval or denial. The holder of a Class B Bingo License can conduct electronic bingo games only at a “qualified location,” which has been “inspected and approved by the sheriff’ and for which “satisfactory evidence” of specified criteria has been demonstrated. A nonprofit organization can contract with another entity to operate electronic bingo games on its behalf at a “qualified location.” Here is how the Original Rules came to be. Within a week of voter approval of Amendment No. 744, and after a telephone call from Mr. McGregor, Sheriff Warren sought assistance from Mr. Gray Jr. in drafting the Rules for electronic bingo in Macon County. (Warren Dep. 50-51; Gray Jr. Dep. 57.) At that time, Mr. Gray Jr. was an associate, not a shareholder, in the Gray Law Firm. (Gray Sr. Dep. 185.) Sheriff Warren “did not care if Mr. Gray [Jr.] discussed [the bingo Rules] with [third parties, including VictoryLand’s agents and Mr. Gray Sr.] in accomplishing what [he] had asked [Mr. Gray Jr.] to do.” (Warren Dep. 170, 177-78, 219.) Sheriff Warren testified that Mr. Gray Jr. could consult others during the rule-drafting process because he trusted Mr. Gray Jr. “to act in the best interest of the citizens of Macon County [and] in [Sheriff Warren’s] best interest.” (Warren Dep. 162.) Sheriff Warren also testified that, during the drafting process and at the time of his deposition, he did not know to whom Mr. Gray Jr. spoke or from whom he received input during the drafting process. (Warren Dep. 178-79.) Within days of the passage of Amendment No. 744, Mr. McGregor contacted Sheriff Warren to request a meeting. (Warren Dep. 81.) Sheriff Warren and Mr. McGregor scheduled the meeting to be held on or about November 11, 2003. (Warren Dep. 78; Warren Answer to 6th Am. Compl. ¶33 (Doc. #358).) Sheriff Warren believed that the purpose of the meeting would be to discuss gaming, and he invited his attorney, Mr. Gray Jr., to attend. (Warren Dep. 81-84; Gray Jr. Dep. 99-100.) Mr. Gray Jr., Sheriff Warren and Mr. McGregor met at the law offices of the Gray Law Firm. (Warren Dep. 80-81, 86-87; Gray Jr. Dep. 98-100; McGregor Answer to 6th Am. Compl. ¶ 33 (Doc. # 356); Warren Answer to 6th Am. Compl. ¶ 94.) The meeting lasted about twenty minutes. (Gray Jr. Dep. 104.) The “gist” of what Mr. McGregor conveyed during that meeting was that he had “an interest in gaming” (Warren Dep. 91, 95) and, in particular, “in bingo in Macon County,” given that the referendum had passed (Gray Jr. Dep. 104). Another topic discussed among Mr. McGregor, Mr. Gray Jr. and Sheriff Warren was the fact that Amendment No. 744 “didn’t give a lot of guidance” concerning the promulgation of the rules for which Sheriff Warren was responsible. (Gray Jr. Dep. 104-05.) Mr. McGregor informed Sheriff Warren that he (Mr. McGregor) “knew of a lawyer ... who would get in touch with [Mr. Gray Jr.] and render any kind of support” needed. (Gray Jr. Dep. 105.) That lawyer was John Bolton (Gray Jr. Dep. 96, 105), and Mr. Gray Jr. left that meeting with the distinct “feeling” that Mr. Bolton would be contacting him. (Mr. Gray Jr. Dep. 105.) That intuition proved correct. Beginning with this November 11 meeting between the regulator (Sheriff Warren) and the soon-to-be regulated (VictoryLand/Mr. McGregor), Sheriff Warren, through his counsel Mr. Gray Jr., involved VictoryLand or its counsel in every phase of the drafting process, until the Original Rules were adopted on December 5, 2003. As promised, Mr. Bolton contacted Mr. Gray Jr. “within two weeks of the referendum passing.” (Gray Jr. Dep. 96-97; Bolton Dep. 39-40 (Ex. 11 to Doc. #443 & Ex. B to Doc. #446).) Mr. Bolton testified that, during his initial conversation with Mr. Gray Jr., he does not “recall” telling Mr. Gray Jr. that he represented Mr. McGregor. Mr. Bolton, however, “understood” that Mr. Gray Jr. represented Sheriff Warren. “I believe he understood that I represented [VictoryLand]. I can’t tell you ... that I recall ... specifically telling Mr. Gray [Jr.] that or him specifically telling me who he represented.” (Bolton Dep. 54.) Similarly, Mr. Gray Jr. “understood” that Mr. Bolton’s client was either VictoryLand or Mr. McGregor. (Gray Jr. Dep. 118; see also Gray Jr. Dep. 105.) During that initial conversation, Mr. Gray Jr. told Mr. Bolton that he planned to issue bingo regulations; that he had obtained a copy of the Montgomery County bingo regulations and planned to use them as a model; that he planned to impose some financial or other standards for bingo operators; and that he was considering imposing either a square footage requirement or an investment requirement for bingo operators in Macon County. (Bolton Dep. 42-43.) Mr. Bolton offered his assistance in drafting the Rules. (Bolton Dep. 51-53.) He told Mr. Gray Jr. that he “had worked on a case involving the Montgomery County regulations” and “offered to take a first cut at a draft of the regulations” using the Montgomery County Rules as a “model.” (Bolton Dep. 52-53, 63, 80.) Mr. Gray Jr. accepted Mr. Bolton’s offer, and within approximately one week, Mr. Bolton submitted a draft set of rules to Mr. Gray Jr. (Bolton Dep. 53, 63, 72, 85, 119; Draft Rules, MCGP(JMB) 002188 (Ex. 5 to Doc. #445).) For this work and all related work on the Macon County bingo Rules, Mr. Bolton was paid by VictoryLand. (Bolton Dep. 26.) Following the initial submission of draft rules, there were several communications between Mr. Gray Jr. and Mr. Bolton, and the two exchanged by email annotated drafts of Mr. Bolton’s initial draft of rules. (Bolton Dep. 78-79, 85-88; McGregor Answer to 6th Am. Compl. ¶ 36 (Doc. # 356).) On November 26, 2003, an email was sent from Mr. Bolton’s assistant to Mr. Gray Jr. and others, with the message, “Please see attached. Macon Co. Bingo Regulations.” (Emails, FGJ0226-227 (Ex. 5 to Doc. # 445).) Mr. Bolton, Mr. Gray Jr., George David Johnston (“Johnston”), Sheriff Warren and Mr. McGregor met at the Gray Law Firm sometime before Thanksgiving 2003. (Bolton Dep. 90; Johnston Dep. 21 (Ex. 15 to Doc. # 443; Ex. H to Doc. # 446).) During the meeting, which lasted fifteen to twenty minutes, the parties discussed the then-current draft of the Rules. (Bolton Dep. 95-97; Johnston Dep. 22-24.) They did not discuss potential conflicts of interest. (Gray Jr. Dep. 110-11; Bolton Dep. 110.) Mr. Gray Jr. “did not think there was any conflict” concerning his representation of Sheriff Warren related to drafting bingo Rules while the Gray Law Firm and Mr. Gray Sr. continued to represent Victory-Land on non-bingo matters, and while Mr. Gray Sr. maintained a minority shareholder interest in VictoryLand. (Gray Jr. Dep. 87-88; see also Warren Dep. 28-29.) In short, Mr. Gray Jr. did not perceive, anticipate or consider any conflicts regarding his representation of Sheriff Warren. (Gray Jr. Dep. 87-88, 177.) Mr. Gray Jr. already represented Sheriff Warren on other matters when he was retained with respect to the Rules. (Gray Jr. Dep. 86.) The Gray Law Firm does not have a written process for checking conflicts. (Gray Jr. Dep. 39-41; Gray Sr. Dep. 207-08.) It does, however, check for conflicts. (Gray Jr. Dep. 40.) Moreover, Sheriff Warren was aware of the Gray Law Firm’s ties to and representation of VictoryLand. (Warren Dep. 179-80.) Sheriff Warren also knew that Mr. Gray Sr. had an “affiliation with” Victory-Land, but he did not know the “extent” of that affiliation. (Warren Dep. 179-80.) Additionally, Mr. Gray Sr. testified that Sheriff Warren was “fully aware” not only that the Gray Law Firm represented VictoryLand, but also that Mr. Gray Sr. was a shareholder in VictoryLand. (Gray Sr. Dep. 92-93, 97, 99,104-05,110.) Mr. Gray Jr., Sheriff Warren, Mr. McGregor and Mr. Bolton reconvened at a later date, but this time in Mr. McGregor’s office in Montgomery, Alabama. (Bolton Dep. 121-22.) They discussed bingo “regulations in general” at that meeting. (Bolton Dep. 125.) On December 3, 2003, Mr. Bolton’s assistant sent an email to Mr. Gray Jr., with a message, “Please see attached. Macon Co. Bingo Regulations.” (Email, FGJ0231; MCGP(JMB)002201-2213 (Ex. 5 to Doc. #445).) On December 5, 2003, Mr. Gray Jr. sent an email to Linda Pittman (Mr. McGregor’s secretary, see McGregor Dep. 323), Mr. Johnston and Beth Herrington (Mr. Johnston’s assistant) and attached a revised draft of the bingo rules. (Email, MCGP(GDJ)0020992111 (Ex. 5 to Doc. # 445).) Mr. Gray Jr. asked the recipients to “[c]all upon review.” (Email, FGJ0226 (Ex. 5 to Doc. # 445).) In the email, Mr. Gray Jr. noted that his “client” (Sheriff Warren) had not reviewed the attached draft. (Email, FGJ0226 (Ex. 5 to Doc. # 445).) Mr. Gray Jr. emailed two more drafts on the same day to the same VictoryLand recipients, the last with the notation, “This is the draft that is currently being reviewed. READ CAREFULLY.” (Email, MCGP(GDJ)002126-2146 (Ex. 5 to Doc. # 445).) Mr. Gray Jr. and Sheriff Warren reviewed the Original Rules together, maybe not “every word,” but “every section.” (Warren Dep. 196.) During the editing process, Sheriff Warren made some changes to the draft rules. (Gray Jr. Dep. 123-24, 128-29, 138-39, 207-10; Bolton Dep. 86-88, 107, 141-43.) No evidence, however, has been cited as to what those changes were. (Bolton Dep. 106-08 (testifying that edits were made to his proposals, but that he (Mr. Bolton) did not have a record of those edits).) According to Mr. Bolton, Sheriff Warren also “intended to have an investment requirement ... [, and Mr. Bolton] drafted some proposed language.” (Bolton Dep. 100.) Sheriff Warren, however, testified as follows: And the rules and what Mr. Gray [Jr.] and I came up with was what I wanted. I used my discretion on the information that he brought to me. I exercised what judgment I could, given my knowledge of this issue, which was — which I used as best I could and the rules and regulations that I came up with, I approved and intended that they govern this activity. (Warren Dep. 159-60.) Sheriff Warren also testified that “[w]hat Mr. Gray [Jr.] came up with, we discussed. I used my discretion. I approved what I wanted to approve and the rules that are adopted are the rules that were adopted by the Macon County sheriff.” (Warren Dep. 157.) Sheriff Warren signed the Original Rules on December 5, 2003. (Gray Jr. Dep. 127-28.) They were adopted without public hearing, comment or other public notice or involvement. As of December 5, 2003, “VictoryLand met the requirements set forth in the [Original Rules]” and “was the only qualified location in Macon County.” (Warren Dep. 146^17; Original Rules § l(j) (defining “qualified location”).) On December 16, 2003, Mr. McGregor signed a sworn Operator’s Certificate. The Operator’s Certificate contained information relevant to Mr. McGregor’s position that VictoryLand was a “qualified location” within the meaning of the Original Rules. (Operator’s Certificate (Ex. 10 to Doc. # 445); Warren Aff. ¶ 11 (Ex. 38 to Doc. # 441).) On December 18, 2003, Sheriff Warren issued VictoryLand a Class B “Bingo Operator’s License.” (Victory-Land Bingo Operator’s License (Ex. 12 to Doc. #445).) By the end of December 2003, VictoryLand had gross receipts from electronic bingo of $586,867, with gross profits of $408,481. (VictoryLand’s Independent Auditor’s Report; VictoryLand’s 2d Suppl. Resp. to Lucky Palace Interrog. No. 9.) 2. First Amended Rules (June 2004) On June 2, 2004, approximately six months after adopting the Original Rules, Sheriff Warren amended them, again without public notice, comment or input. (Warren Dep. 147; 1 st Am. Rules.) VictoryLand’s attorneys were involved again in the rule-making process. Proposals for the amendments originated from Mr. Bolton by email. (Gray Jr. Dep. 179; Email, MCGP(JMB)002214-29 (Ex. 6 to Doc. # 445).) Mr. Gray Jr. made handwritten notes on the draft that Mr. Bolton emailed him. (Draft 1 st Am. Rules (Ex. 6 to Doc. # 445, FGS0054-64); Gray Jr. Dep. 185-90.) On June 2, 2004, Mr. Gray Jr. faxed a copy of the First Amended Rules to Mr. McGregor, Mr. Bolton and Mr. Johnston. (Fax Transmission Cover Sheet and attachment (Ex. 15 to Doc. # 445).) The First Amended Rules implemented amendments that (1) clarified that a nonprofit organization must be “active and in good standing,” § 1(d); (2) increased the capital investment requirement of a qualified location from $5 million to $15 million, § l(j); (3) required that “[n]o Class B Licensee shall be authorized to operate bingo at any qualified location, as defined herein, unless a minimum of fifteen (15) applicants shall first obtain Class B Licenses for such location,” § 2; (4) increased the Operator’s License Fee from $40,000 to $250,000, § 4(a); (5) increased the single prize limitation from $1 million to $20 million, § 9(f); and (6) added a provision regarding transportation of bingo equipment, § 15. The First Amended Rules also contained a Commentary, setting forth reasons for the amendments. For example, the Commentary set forth the following reason for § l(j)’s amendment for raising the capital investment requirement: The capital investment amount required for a “qualified location” for the holder of a Class B License is hereby increased to $15,000,000 and limited to actual cost in order to require any qualified location to prove a significant investment and financial commitment to Macon County prior to becoming a “qualified location.” Further, the capital investment requirement is restricted to actual cost, not based on any valuation, in order to avoid potential dispute or abuse based on any real estate appraisal submitted with an application. (1st Am. Rules, Commentary, § l(j).) The Commentary also provided that § 2, imposing a fifteen-license Class B Bingo License minimum, was added to maximize economic benefits to numerous nonprofit organizations in Macon County and to further avoid the potential abuse of a third party individual or business entity from using one nonprofit organization (or a minimal number) as a “front” to operate bingo games under a Class B License.... By requiring at least fifteen (15) nonprofit organizations to obtain Class B Licenses prior to authorizing such a bingo operation at a qualified location, assurance is provided that a large representative group of charities is afforded the opportunity to obtain the economic benefits associated with a Class B License. (1st Am. Rules, Commentary, § 2.) 3. Second Amended Rules (January 2005) On December 1, 2004, Alabama Attorney General Troy King concluded a six-month long review of gambling in Alabama and published a news release containing his “findings” from that review. Those findings defined requirements for legal bingo video machines. (King Press Release, Dec. 1, 2004 (Ex. 42 to Doc. #441).) Sheriff Warren testified that, based on those findings, he instructed Mr. Gray Jr. to draft the Second Amended Rules. (Warren Dep. 182.) Continuing a familiar pattern, Mr. Bolton sent Mr. Gray Jr. a draft of the Second Amended Rules, with proposed amendments. (Mr. Gray Jr. Dep. 179-81; Bolton Dep. 201-02.) On January 6, 2005, Sheriff Warren signed the Second Amended Rules, with an effective date of January 1, 2005. (Warren Dep. 147; 2d Am. Rules.) According to Defendants, the Second Amended Rules were published in The Tuskegee News on December 30, 2004. (Doc. # 440, at 16 (citing Ex. 161).) Of primary relevance, the Second Amended Rules capped the total number of Class B Bingo Licenses available in Macon County at sixty, as set out in § 2: No Class B Licensee shall be authorized to operate bingo at any qualified location, as defined herein, unless a minimum of fifteen (15) applicants shall first obtain Class B Licenses for such location.....At no time shall there be issued and outstanding more than sixty (60) Class B Licenses for the operation of bingo in Macon County. (2d Am. Rules § 2.) Mr. Gray Jr. communicated to Mr. Bolton the idea of a limit on the number of charities that could participate in electronic bingo. (Bolton Dep. 202-03.) Sheriff Warren limited that number to sixty. (Warren Dep. 150.) The Second Amended Rules also modified § 4 to permit Class B Bingo Licenses to be valid for five years, rather than one year. (2d Am. Rules § 4.) The Commentary to the Second Amended Rules provided, in part: The Attorney General for the State of Alabama has recently conducted an exhaustive investigation and review of gaming activities in the State of Alabama, including but not limited to, bingo games conducted in Macon County, Alabama, pursuant to Amendment No. 744 of the Constitution of Alabama. In response to the Attorney General’s recent findings and pronouncements, the First Amended and Restated Rules and Regulations For the Licensing and Operation of Bingo Games in Macon County (the “Macon County Bingo Regulations”) are hereby amended and restated to comport and comply with the Attorney General’s definition of bingo games and policy to limit Class B bingo gaming activities in Macon County, Alabama, at a reasonable level whereby the Sheriff can more adequately and effectively regulate and enforce the proper conduct of such bingo games. Accordingly, the following changes have been made to the Macon County Bingo Regulations. Section 2: A new sentence has been added to the end of Section 2 to limit the number of Class B Licenses that may be issued in order to follow the policy of the Attorney General to limit Class B bingo gaming activities in Macon County, Alabama, and to allow the Sheriff to more effectively regulate and enforce the proper conduct of such bingo games. (2d Am. Rules, Commentary.) Sheriff Warren testified that “[t]he attorney general never publicly stated that he wanted to limit gaming in Macon County.” (Warren Dep. 269.) Sheriff Warren said, however, that his rule limiting the number of Class B Bingo Licenses to sixty “was simply stating what [he] honestly believed the spirit of the attorney general’s language meant to [him]” and that “anybody who knows Mr. King knows his opposition to gaming in the state of Alabama.” (Warren Dep. 270.) Sheriff Warren also testified that the monetary requirement for a “qualified location” was included to keep “fly by nighters” from Macon County. (Warren Dep. 139, 150-51.) He wanted to ensure that a “substantial investment” was made to attract only “serious” investors. (Warren Dep. 139.) He said that when he wrote the Rules, he had “no desire or plans that VictoryLand be the only qualified location in Macon County.” (Warren Dep. 149.) VictoryLand, however, “met the requirements set forth in the [Original Rules].” (Warren Dep. 146.) And each time the Rules were amended, VictoryLand “was the only qualified location in Macon County.” (Warren Dep. 147.) 4. VictoryLand’s Electronic Bingo Licenses On December 8, 2003, three days after the promulgation of the Original Rules, VictoryLand presented Sheriff Warren with applications from twelve Macon County charity organizations that had contracted with VictoryLand for the operation of electronic bingo. (Twelve VictoryLand Charity Applications (Ex. 8 to Doc. # 445).) There is evidence suggesting that at least some of the applications of the initial twelve VictoryLand charities did not contain all the required information, such as “[a] certified copy of the charter, certificate of incorporation, by-laws, or other evidence of legal existence of the organization,” and tax exemption documentation. (Original Rules § 4(c)(2) & (3); Ex. 8 to Doc. #445; Deputy Tommy Miller Dep. 50-51 (Ex. J to Doc. # 446 & Ex. 13 to Doc. #461); Warren Dep. 332.) On December 16, 2003, Mr. McGregor signed an “Operator’s Certificate.” The Operator’s Certificate was submitted to Sheriff Warren with the Tuskegee-Macon County YMCA’s Class B Bingo License materials “as evidence that VictoryLand met the requirements of a qualified location.” (Operator’s Certificate (Ex. 10 to Doc. # 445); McGregor Aff., MCGP00001-03; Warren Aff. ¶ 11.) On December 17, 2003, Sheriff Warren issued Class B Bingo Licenses to the twelve charity-applicants for the operation of electronic bingo at VictoryLand. (Class B Bingo Licenses (Ex. 11 to Doc. #445); Ex. C to Warren Aff.) On December 18, 2003, Sheriff Warren issued VictoryLand a Class B “Bingo Operator’s License.” (VictoryLand Operator’s License (Ex. 12 to Doc. # 445).) Sheriff Warren did not conduct a “formal investigation of VictoryLand” prior to declaring it a “qualified location,” but he “made inquiries” that “satisfied” him of VictoryLand’s “standing.” (Warren Dep. 189.) Also, Sheriff Warren’s deputy, Tommy Miller (“Deputy Miller”), did not speak to Mr. McGregor about the Operator’s Certificate or inspect VictoryLand to ensure that the statements in that certificate were correct. (Miller Dep. 68-69.) Also in December 2003, VictoryLand opened its electronic bingo operations with 303 electronic bingo machines. (McGregor Aff. ¶ 20.) Over the next six months Victory-Land increased the number of electronic bingo machines, and by June 1, 2004, VictoryLand had 928 machines. (McGregor Aff. ¶ 21.) The number of machines continued to increase, and as of September 2009, VictoryLand had approximately 6,400 electronic bingo machines in operation. (McGregor Aff. ¶ 23.) VictoryLand also gradually increased the number of its contracts with Class B Bingo License holders. Between January 1, 2004, and June 1, 2004, while the Original Rules remained in effect, seventeen additional applications were submitted from VictoryLand charities to Sheriff Warren for Class B Bingo Licenses and were granted. These applicants also had contracted to conduct electronic bingo at VictoryLand, bringing the total number of VictoryLand’s Class B Bingo Licenses to twenty-nine. Thereafter, on June 2, 2004, the First Amended Rules went into effect. Between June 2, 2004, and December 31, 2004, Sheriff Warren granted ten more Class B Bingo Licenses to charity organizations contracting with VictoryLand. (Warren Aff. ¶ 17.) Hence, as of December 31, 2004, thirty-nine charities had obtained Class B Bingo Licenses, and all thirty-nine of those charities had entered into contracts with VictoryLand for the operation of electronic bingo. On January 1, 2005, the Second Amended Rules went into effect. Also, by that date, VictoryLand had negotiated contracts with an additional twenty charities, although those twenty charities had not yet submitted applications to Sheriff Warren for Class B Bingo Licenses. On February 7, 2005, fourteen of those additional twenty charities received Class B Bingo Licenses from Sheriff Warren, bringing VictoryLand’s total number of licensed charities to fifty-three. Pursuant to the Second Amended Rules, as of February 7, 2005, no other entity could be a “qualified location” for the holder of a Class B Bingo License and conduct electronic bingo in Macon County. (Warren Dep. 128-29, 115-17.) This was because the Second Amended Rules required that a “qualified location” have a minimum of fifteen Class B Bingo Licenses, but at the same time prohibited the issuance of more than sixty Class B Bingo Licenses in Macon County. Six more VictoryLand charities obtained their Class B Bingo Licenses between April 29, 2005 and June 14, 2005; hence, as of June 14, 2005, VictoryLand was operating electronic bingo on behalf of fifty-nine licensed charities. (Warren Aff. ¶ 26; Ex. C to Warren Aff.) By March 20, 2006, VictoryLand had secured all sixty Class B Bingo Licenses. (VictoryLand Charities 2006 Class B Bingo Licenses (Ex. 31 to Doc. # 446); Ex. C to Warren Aff.; McGregor Answer to 6th Am. Compl. ¶ 74.) There is no evidence that Sheriff Warren refused a Class B Bingo License to any VictoryLand charity. The following chart summarizes the timeline for the issuance of Class B Bingo Licenses for VictoryLand charities, measured against the effective dates of the Rules: Dates Number of Class B Bingo Number of Class B Bingo 5. VictoryLand’s and the Charities’ Income VictoryLand’s annual gross receipts and annual gross profits from electronic bingo for the years 2003, 2004, 2005, 2006, 2007, and 2008 reflect steady and substantial increases, as set out in the chart below. (VictoryLand’s Independent Auditor’s Report (Ex. 30 to Doc. # 446); VictoryLand’s 2d Suppl. Resp. to Lucky Palace Interrog. No. 9 (Doc. # 521).) Since the inception of electronic bingo at VictoryLand, Mr. Gray Sr.’s income derived from his minority ownership interest in Victory-Land also has increased substantially. Combined, the charities contracting with VictoryLand received the following payments from VictoryLand in the years 2004-2008: 2004 ($546,350); 2005 ($978,-250); 2006 ($797,650); 2007 ($797,650); and 2008 ($1,300,026). (VictoryLand Charity Payouts (Ex. 28 to Doc. #446).) In 2008, VictoryLand and its charities entered into new lease agreements under which the charities received $3,751.50 as a Bingo Session Charity Fee. VictoryLand’s Gross Receipts from VictoryLand’s Gross Profits Total Payments from VictoryLand _Electronic Bingo_from Electronic Bingo_to its Charities 2002_ 2003_$ 586,867_$ 408,481_ 2004_$ 64,070,688_$ 49,902,963_$ 546,350_ 2005_$112,693,949_$ 89,148,794_$ 978,250_ 2006_$139,853,391_$110,936,378_$ 797,650_ 2007_$157,498,710_$126,706,748_$ 797,650_ 2008_$162,571,464_$125,860,684 (estimated)_$1,300,026_ 6. Lucky Palace’s Pursuit of Class B Bingo Operations in Macon County The preceding recital of facts has little contextual meaning absent the overlay of Lucky Palace’s timeline. In early 2003, Paul Bracy, Lucky Palace’s president, “became interested” in operating electronic bingo in Macon County. (Bracy Dep. 59-60 (Ex. 12 to Doc. # 443 & Ex. C to Doc. #446).) Lucky Palace was incorporated on February 17, 2004, for the purpose of developing an electronic bingo establishment in Macon County. (Bracy Letter (Ex. 562 to Doc. #440); Lucky Palace Articles of Incorporation (Ex. 702 to Doc. # 441).) Mr. Bracy and his associates met with Sheriff Warren and Deputy Miller in the sheriffs office sometime in the spring of 2004, which was prior to any amendments to the Original Rules. (Dwight Washington Dep. 24-25 (Ex. N to Doc. # 446).) At that meeting, Sheriff Warren assured Mr. Bracy that there would be no problem with another entity obtaining an Operator’s License, so long as it “follow[ed] the rules and regulations.” (Washington Dep. 26.) On June 11, 2004, unaware that on June 2 Sheriff Warren had amended the Original Rules, Mr. Bracy notified Sheriff Warren by letter that Lucky Palace still intended to establish an electronic bingo facility in Macon County and explained the steps Lucky Palace had taken toward the attainment of that goal. In the closing paragraph, Mr. Bracy said, Given that [Lucky Palace] intends to meet or exceed all of the requirements set forth in the Rules and Regulations issued by the Sheriff of Macon County, Alabama, is there any reason for [Lucky Palace] to expect that a license will not be granted? [Lucky Palace] is very willing to meet with you or your representative(s) if there is something that may have been overlooked.... If [Lucky Palace] has not heard from your office or representative by June 21, 2004[,] we will assume that a license will be granted. (June 11, 2004 Letter (Ex. 16 to Doc. # 445, PTF00563).) On June 15, 2004, Mr. Bracy sent another letter to Sheriff Warren, expressing his “surprise[]” to read the First Amended Rules in The Tuskegee News, dated June 10, 2004. (June 15, 2004 Letter (Ex. 16 to Doc. #445, PTF00564-565).) Mr. Bracy sought “clarification of the impact of the new requirements on [Lucky Palace’s] planned development.” (June 15, 2004 Letter (Ex. 16 to Doc. #445, PTF00564565).) In the closing paragraph, Mr. Bracy said, “We are prepared to continue moving ahead with our project as scheduled ... governed under” the Original Rules. (June 15, 2004 Letter (Ex. 16 to Doc. # 445, PTF00565).) On July 21, 2004, Mr. Bracy and Sheriff Warren met in Sheriff Warren’s office to discuss Lucky Palace’s plans. On July 30, 2004, Mr. Bracy sent Sheriff Warren a letter and, per a phone conversation earlier that day, sought a signed statement from Sheriff Warren that the First Amended Rules would not be amended again and that there would be “no delays or problems in obtaining the license for a ‘Class B’ qualified location, for the operation of electronic bingo in Macon County, Alabama.” (July 30, 2004 Letter & Proposed Statement (Ex. 16 to Doc. # 445, PTF00566, PTF00609, PTF00567); Warren Dep. 230-31.) Sheriff Warren did not sign this statement. (Warren Answer to 6th Am. Compl. ¶ 64 (Doc. # 358); Warren Dep. 229-30.) However, on August 5, 2004, Sheriff Warren sent Mr. Bracy a letter stating that, while he “reserve[d] the right to amend the regulations as necessary,” he did “not foresee any need for any substantive changes in the foreseeable future.” (Aug. 5, 2004 Letter (Ex. 16 to Doc. # 445, PTF00609).) On August 17, 2004, Mr. Bracy responded to Sheriff Warren’s August 5 letter, thanking him for his “prompt response.” (Aug. 17, 2004 Letter (Ex. 16 to Doc. # 445, PTF00568).) On September 25, 2004, the Montgomery Advertiser published an article about Lucky Palace’s efforts to open an electronic bingo facility in Macon County. (Jannell McGrew, Die Cast for New Bingo Facility, Montgomery Advertiser, Sept. 25, 2004 (Ex. 17 to Doc. #445).) That article paraphrases Mr. McGregor as saying that “he was not concerned about competition from the new facility” and includes a direct quote from Mr. McGregor that “ ‘competition doesn’t concern me at all.’ ” (Ex. 17.) Mr. McGregor testified that he first learned of Lucky Palace’s efforts to become a qualified location for electronic bingo from an article in the Montgomery Advertiser (McGregor Dep. 327), but he did not give the date of the article from which he acquired this knowledge. By November 10, 2004, Lucky Palace had secured contracts with more than fifteen local charities (including the fifteen Plaintiff Charities). (Lucky Palace/Charity Contracts (Ex. 18 to Doc. # 445).) Under those contracts, the charities that affiliated with Lucky Palace would be entitled to a semiannual payment of $21,000 each. (Lucky Palace/Charity Contracts § 5.) Although the Rules do not contain provisions requiring or permitting preapproval, Lucky Palace attempted to secure preapproval of its planned facility by submitting an application for an electronic bingo Operator’s License on November 10, 2004. (Warren Dep. 111-12; Nov. 10, 2004 Application (Ex. 16 to Doc. # 445, PTF00572575).) On January 14, 2005, when VietoryLand was operating electronic bingo for thirty-nine charities under the Second Amended Rules, and more than sixty days after he (Sheriff Warren) had received Lucky Palace’s application, Sheriff Warren returned Lucky Palace’s November 10, 2004 application for an electronic bingo Operator’s License. (Warren Dep. 272-73; Bracy Dep. 193-201; Envelopes (Ex. 23 to Doc. # 446).) On the envelope returning the application, Mary Davis, Sheriff Warren’s administrative assistant, handwrote the following: “Return,” “Not Approved,” “Building not completed,” “Building must qualify.” (Envelopes (Ex. 23 to Doc. #446); Warren Dep. 125-28, 261; Bracy Dep. 199-200.) Lucky Palace received the returned Operator’s License application on January 19, 2005. (Envelopes (Ex. 23); Bracy Dep. 197-201.) It was Sheriff Warren’s intent “that a building be present to inspect before a license was issued.” (Warren Dep. 133-34, 144.) Sheriff Warren testified, ‘You know ... every store I’ve seen open, before they get a license, there was a store there for somebody to inspect; every — every restaurant that I know of had to have a building to inspect before they were licensed.... I don’t think that expecting someone to have a building there before they get a license is asking too much.” (Warren Dep. 134; see also Warren Dep. 144 (“My intention was to provide rules that would govern bingo. And in my opinion, before I approved a qualified location, there would have to be a building there for me to approve.”).) Hence, the sole reason Sheriff Warren has refused to issue Lucky Palace an Operator’s License is because it does not have a “qualified location.” (Warren Dep. 111-13; Warren Dep. 113 (When asked if there was “[a]ny other reason[]” Lucky Palace could not get a license, Sheriff Warren responded, “At this time, there aren’t ... any other reasons.”).) On July 25, 2005, when VictoryLand was operating electronic bingo on behalf of fifty-nine charities, thereby foreclosing another entity from conducting electronic bingo operations in Macon County, Lucky Palace attempted to deliver twenty-two applications for Class B Bingo Licenses, along with checks for the licensing fees, to Sheriff Warren. (July 25, 2005 Letter & 22 Checks, at PTF00578-PTF00584 (Ex. 16 to Doc. # 445).) On that same date, Mr. Bracy also sent Sheriff Warren a letter providing information about Lucky Palace that Mr. Bracy believed satisfied the Second Amended Rules pertaining to a “qualified location.” (July 25, 2005 Letter, PTF00578-PTF00584 (Ex. 16 to Doc. # 445).) Sheriff Warren’s office refused to accept Lucky Palace’s charity applications and returned them immediately. (Bracy Dep. 205-06.) Sheriff Warren’s assistant, Ms. Davis, told Mr. Bracy that the charity license applications were “premature” because the applicants “did not have a building,” ie., did not have a “qualified location” at which to conduct electronic bingo. (Bracy Dep. 206.) No mention was made of the dispositive fact that VictoryLand had sewn up all but one of the available licenses. The denial was not appealed by the Plaintiff Charities, as permitted by § 14 of the Rules. (Bracy Dep. 201.) By March 20, 2006, VictoryLand had secured all sixty Class B Bingo Licenses. (VictoryLand Charities 2006 Class B Bingo Licenses (Ex. 31 to Doc. # 446); Ex. C to Warren Aff.; McGregor Answer to 6th Am. Compl. ¶ 74.) Plaintiffs attempted to rectify their perceived injury through political means. Those means included selecting and funding a candidate to run against Sheriff Warren- — -a candidate who was supportive of Lucky Palace’s project and who was committed to expanding gaming in Macon County. (Windom Dep. 345 (Ex. 1 to Doc. # 443).) Those efforts, however, did not achieve their desired result, as in the primary election in June 2006, the voters of Macon County overwhelmingly reelected Sheriff Warren over the candidate supported by Plaintiffs. (Windom Dep. 182.) 7. This Lawsuit (December 2006) On December 18, 2006, seventeen nonprofit organizations — which had contracted with Luc