‘Hero Votes’: Favorite Chef Contest Is an Illegal Lottery, Class Action Alleges [UPDATE]

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The operators of the online Favorite Chef competition face a proposed class action that alleges the apparent contest was no contest at all and in fact a “cleverly designed lottery” whereby the winner was the person who had the most money spent on their behalf. 

The 19-page lawsuit alleges Favorite Chef runner Crow Vote, LLC, an “online social crowd voting” business; company founder Darrin Austin; and chef and TV personality Edward Matney, ran, in truth, an unlawful lottery/sweepstakes that violated California law, in particular by offering the option for voters to pay real money to cast “hero votes”—essentially extra votes for their favorite participant. 

In reality, Favorite Chef was “not an objective or even subjective test of cooking skills,” and no persons were “observing cooking skills, tasting the food, or assessing the skill and efficiency by which the food was prepared,” the case says. 

“The more money someone spent, the more votes they could cast on behalf of the contestant of their choice and therefore the more likely the contestant was to win the prizes,” the suit says. “Theoretically, it was possible for someone with no cooking skill at all to win simply by having others spend the most money to obtain the most votes.” 

The two plaintiffs, the sister and wife of a Favorite Chef participant who hoped to use the proceeds from winning the contest to buy a food truck and start his own business, further allege the defendants were not forthcoming with voters in regard to the donation of money spent on hero votes to a food bank charity. Overall, the lawsuit alleges the Favorite Chef runners’ “online competition” constituted an “illegal lottery” and “illegal gambling business” under the California’s Unfair Competition Law and the federal Racketeer Influenced and Corrupt Organization Act (RICO), respectively.  

“Although attorneys and other experts are able to determine that this cleverly designed scheme was an illegal lottery, Plaintiffs did not know that at the times they spent the money nor did members of the public, and specifically class members, likely did not know that as well,” the complaint contends. 

To participate in Favorite Chef, an individual, chef or not, needed to create a profile on the official sponsored website, the case says. Participants could also advertise themselves on social media and ask followers to go to their official Favorite Chef page and vote for them, per the suit. According to the complaint, whoever obtained the most votes at the end of each round of voting would proceed to the next, with the contest winner receiving the title of “World’s Favorite Chef,” $50,000 in cash and a two-page ad spread in Bon Appétit magazine. 

The lawsuit says, however, that Favorite Chef “deviated” from a standard popularity contest in that contestants were “encourag[ed], if not require[ed],” to pay real money “for a realistic chance of winning.”  

Specifically, members of the public, including participants’ families and friends, were permitted to spend real money on extra votes, i.e., hero votes, for the contestant of their choice, the suit says. Per the lawsuit, this method of voting allowed contestants’ “allies” to buy votes at a minimum of $10 each in exchange for one or two votes per dollar spent. 

“Defendants referred to this option as casting ‘Hero Votes,’ although doing so was plainly more mercenary than heroic,” the complaint reads. 

The suit says that in order to “soften” the optic of allowing money to be paid for votes, the defendants used statements on their website such as “[p]urchase votes benefiting Feeding America,” a fairly well-known charity. According to the case, those who went to the Favorite Chef website to buy hero votes were directed to another web page on which they could enter an amount to spend, and next to the box in which payment was specified was text relaying that a portion of the proceeds would be donated to Feeding America.

After entering an amount to spend and hitting “continue,” the lawsuit says, users were taken to a payment page with a disclosure that stated, in part: 

“Your purchase helps us provide the prize, run the competition, and donate a minimum of 25% of the proceeds to Feeding America. Please review our terms (/terms) for additional information.” 

The plaintiffs allege that although the defendants claimed a “minimum of 25%” of the payment for hero votes would go to Feeding America, the fine print of the terms and conditions disclosed on a different web page acknowledges, in part: 

“At the end of the Competition, the Sponsor in its separate and sole capacity will be donating 25% of its proceeds earned from votes purchased to ‘Feeding America’, a not-for-profit 501©(3) organization [sic] working to connect people with food and end hunger. THIS DOES NOT AMOUNT TO A DONATION BY VOTERS IN ANY WAY, SHAPE OR FORM.”

In other words, the charity did not actually receive 25 percent of all money paid for votes, the lawsuit clarifies. According to the case, those who cast hero votes, during the voting and payment process, were not required to read any material that stated the terms and conditions of the charity donations, which the plaintiffs say “constituted at least 20 pages of dense single-spaced text.” 

The plaintiffs claim in the suit that they paid a combined $510 in exchange for 710 votes, and that hundreds or thousands of others also paid at least $10 each, or considerably more, to buy votes for the participants of their choice. 

The case states that a bona fide contest, defined under California’s Business and Professions Code, is “any game, contest, puzzle, scheme, or plan that holds out or offers to prospective participants the opportunity to receive or compete for gifts, prizes, or gratuities as determined by skill or any combination of chance and skill and that is, or in whole or in part may be, conditioned upon the payment of consideration.” The legal definition of a lottery is far closer to matching the Favorite Chef competition, the plaintiffs assert: 

“Three elements must be present to constitute a lottery: (1) a prize, (2) distribution by chance, and (3) consideration. The Favorite Chef contest was a lottery because it was a scheme to award (distribute) a valuable prize among persons who have paid to have a chance of winning the prize, even though the contestants had third parties pay money to improve their chances of winning the prize. For the reasons stated above, it is pure chance, as opposed to skill regarding who will win the ‘Grand Prize.’”

Back in February, Bon Appétit tweeted a statement in which the publication said that neither the contest nor the ad feature were “edit-endorsed” and asked Favorite Chef, who bought a paid ad in the magazine, to “clarify the terms of the competition.” The winner of this year’s Favorite Chef contest was Newport News, Virginia’s Sémone Hopkins. 

The lawsuit, filed on April 16 in Orange County Superior Court and removed to California’s Central District on June 24, looks to cover all persons in the United States who, on or after February 16, 2021, paid for “hero votes” for contestants participating in the Favorite Chef contest. 

“The questionable legality of paying for votes to win a prize and the deceptive nature of disclosures or omission associated with the purchase of these votes can be adjudicated on a class-wide basis,” the complaint states. 

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