Wire Act Case Awaits New Hampshire Lottery Brief in Feb

Last updated on January 21st, 2020

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In the American judicial system, a case working its way through the system – especially in the case of appeals – can take years. That seems to be true of the New Hampshire Lottery Commission and NeoPollard case against the US Department of Justice and US Attorney General William Barr.

The latest news, as of the start of 2020, was that the New Hampshire Lottery and NeoPollard requested an extension to file its brief with the US Court of Appeals for the First Circuit. This was after the Justice Department and AG Barr also took advantage of an extension to file their initial brief.

With that, nothing more is expected from the docket until February 26, 2020, unless the appellees choose to file their brief sooner.

Timeline of Case Thus Far

Technically, the case started in 2011. The Department of Justice under President Obama issued a statement regarding the 1961 Wire Act, which interpreted the law for modern times. The result was a decision that the Wire Act pertained only to sports betting, not to online lotteries or other forms of internet gaming, such as casino games or online poker.

After that, numerous states legalized online poker: Nevada, Delaware, New Jersey, and Pennsylvania. (West Virginia and Michigan didn’t legalize until 2019.)

Enter the Trump Administration, friends of anti-online gaming billionaire and Republican donor extraordinaire Sheldon Adelson. The DOJ in the new era issued a new memorandum to reverse that 2011 decision but in a way that was vague and confusing in its interpretation. That memo was written in November 2018, but the public did not become aware of it until 2019. The timeline begins there.

–January 14, 2019: Wire Act opinion becomes available to the public
–January 16, 2019: Deputy AG Rosenstein issues 90-day delay on application of interpretation
–January 18, 2019: Media report links Adelson to DOJ decision
–February 5, 2019: State Attorneys General (NJ and PA) threaten legal action
–February 15, 2019: New Hampshire Lottery Commission files lawsuit against DOJ
–February 15, 2019: NeoPollard (NH online lottery platform provider) files lawsuit against DOJ
–February 27, 2019: iDEA Growth files lawsuit against DOJ
–March 4, 2019: Rosenstein extends application of Wire Act to June 14, 2019
–April 11, 2019: US District Court for District of New Hampshire hears oral arguments
–April 11, 2019: Judge Paul Barbadoro predicts case will reach US Supreme Court
–June 3, 2019: Barbadoro rules for plaintiffs, sets aside recent DOJ Wire Act decision
–June 12, 2019: DOJ orders no application of new Wire Act memo through 2019
–August 16, 2019: DOJ and Barr file last-minute appeal in First Circuit Court of Appeals
–November 12: 2019: DOJ and Barr brief due in First Circuit but granted extension
–December 18, 2019: DOJ extends Wire Act application to June 30, 2020
–December 20, 2019: DOJ and Barr file brief in First Circuit
–January 19, 2020: New Hampshire and NeoPollard brief due in First Circuit but granted extension
–February 26, 2020: New Hampshire and NeoPollard brief due

The #DOJ has filed its initial brief in the #WireAct appeal. A New Hampshire federal district court had vacated the DoJ’s reinterpretation of the Wire Act as covering all forms of gambling, not just sports betting. Case is now before the First Circuit. More briefing to follow. pic.twitter.com/MtmOfYhOr5
— Daniel Wallach (@WALLACHLEGAL) December 23, 2019

Delayed Until February

The last two dates above are actually the latest news from the US Court of Appeals for the First Circuit.

The New Hampshire Lottery Commission and NeoPollard were originally scheduled to file their reply brief to the DOJ and Barr by mid-January, but they requested an extension. This was granted on January 2. The new due date is February 26, 2020.

Once that brief is filed, the DOJ and Barr will have one more chance to reply. That document will be due 21 days from the date of New Hampshire’s submission, though there could be another extension requested and granted for that, too.