We just wanted to poke a little fun at Mattress Mack’s expense.
Jim McIngvale did, after all, gain notoriety wearing mattresses on television. There are parrots in his Gallery Furniture parking lot, caged monkeys on the showroom floor. Surely, we assumed, the legend who built an independent furniture empire from a tent off the freeway could take some gentle ribbing.
In early May, the post ran on Houstonia’s Shop Talk blog, a few hundred words long: “We’re Worried About Mattress Mack’s Gambling Habit.”
We’d noticed the contests he’s been running, where GF gives customers full rebates on large qualifying purchases, but only if those customers correctly choose the outcome of a designated game or news event. Pick the NFC title winner? Mack’ll cover that $5,000 sectional. Guess whether the price of oil jumps over $85 per barrel? The $7,000 dining set is on him. The store had racked up considerable losses as a result—$4 million after the Astros won its 63rd game in 2014, another $7 million after Seattle beat Denver in Super Bowl 48. Tongue planted squarely in cheek, we warned Mack about his vice: “You can’t keep gambling away your furniture, Mack! You’re a pillar of the community.” We even extended (sardonic) support. “If you ever want to quit, Houston is here for you.”
Mack apparently wasn’t crazy about the joke. His representatives contacted our publisher quickly, and with an irritated tone. They told us, essentially, that our satire was too subtle, that we’d baselessly smeared a Houston icon. Talk of a potential advertising deal was quashed.
The reaction surprised us, to say the least. And it also made us wonder: Had we inadvertently struck a nerve? Was this actually gambling? Is there any chance these contests could be illegal?
Others had raised mild questions about the practice before; reportedly, the Harris County District Attorney’s Office poked around a few years back. But nothing we could find settled the question definitively, so we enlisted expert help.
Jim Elliott is an official with the Federal Trade Commission, in Dallas. “One of the first things that comes to mind,” he says, “is that availability of the offer would need be disclosed. Not just to a few customers, but all customers that are interested in purchasing.” Mack certainly wasn’t hiding his intentions, or the rules, so we could check that box. Gambling, though, is usually policed by state and local authorities, so Elliott recommended we speak to someone familiar with the Texas Penal Code.
One such person is Markus Kypreos, a partner at the Fort Worth law firm Pennington Hill. Texas defines a bet as “an agreement to win or lose something of value solely or partially by chance.” (It’s Chapter 47.) “Here, it’s not a bet,” he says, “because you’re going in and spending [money], and in return, what you’re getting is a piece of furniture.”
Kypreos likens the gambit to a half-court shot at a Rockets game, where a random fan is yanked onto the floor and given the opportunity to sink a long-range basket for big bucks. That fan has already paid for her ticket, and all the enjoyment (or misery) the home team provides. Her transaction, under the law, is complete. Any cash she wins on account of excellent aim is, according to Kypreos, “additional consideration.”
Plus, practically speaking, no law enforcement agency would bum-rush a furniture chain in good standing when there are other, less savory institutions to investigate. “There are so many other borderline gambling violations that we have in Texas, [stuff] that people look the other way on,” Kypreos says. “This certainly doesn’t get there for me.”
So, it’s crystal clear that Mattress Mack has nothing to worry about, legally speaking. And in the spirit of the season, McIngvale is offering Houstonians a new chance to test their prognostication skills: Anyone who buys a mattress set for $2,000 or more and can name the winning party in this year’s presidential election will get their money back.
We’d recommend the GOP; if voters elect Trump, at least you’ll sleep well at night.