New Hampshire Judge Prompts Rosenstein to Delay Wire Act Again
United States Deputy Attorney General Rod Rosenstein may be on his way to retirement later this month, but that didn’t stop him from slapping a second delay on the implementation date for the new Wire Act opinion recently issued by the Department of Justice.
No date has been set for Rosenstein’s exit from the DOJ, but new US Attorney General William Barr has taken the leadership role at the DOJ and will be putting forth a candidate for the Deputy AG job in the near future. But until that happens, Rosenstein maintains power from the position.
Since Rosenstein was the one who originally put a 90-day grace period on the new opinion, one that was dated November 2, 2018 but not issued until mid-January 2019, it made sense that he was also the one to step in and add another 60 days to that order.
It made even more sense to find out that the delay was requested by a New Hampshire judge, one who is faced with the cases that have been brought to the US District Court there as a result of the Wire Act decision. There have been three complaints issued thus far.
— Howard Stutz (@howardstutz) March 4, 2019
Uncertainty Leads to Delays
When the DOJ’s Office of Legal Counsel made public its new interpretation of the wire act on January 14, 2019, there was immediate confusion and varying analyses regarding its meaning. But aside from that major hurdle, there was a problem.
Nevada had offered legal online poker for more than five years. Delaware and New Jersey had offered legal online poker and casino games for more than five years. Pennsylvania had legalized those games in 2017, and online gambling sites were prepared to launch this year. In addition, three of those four states operate under an interstate online poker networking agreement, allowing sites offered on the same platform to combine player pools from one legal state to another.
Moreover, numerous states have offered online lottery ticket sales per the 2011 Wire Act decision from the DOJ.
In order to interpret the new DOJ opinion, it was clearly going to have to go through the courts for consensus. Rosenstein knew that it would take time to prepare and file cases. Even if states simply withdrew from interstate agreements and took lottery tickets down from online platforms, it would take time to take that action. However, most states would not be willing to give up that newfound revenue without a court battle.
So, Rosenstein put a 90-day delay on the new Wire Act opinion’s enforcement within 48 hours of its public release in January.
Deputy Attorney General Rod Rosenstein Issues Memo to U.S. Attorneys on the Recently Published OLC Opinion "Reconsidering Whether the Wire Act Applies to Non-Sports Gambling" https://t.co/DLjIm1m7je
— Justice Department (@TheJusticeDept) January 16, 2019
Last week, several gambling media outlets reported that Rosenstein added another 60 days to that order. Instead of enforcement being allowed from mid-April, the new date for the Wire Act implementation is set for June 14.
DOJ spokeswoman Nicole Navas did verify this with Gambling Compliance, “I can confirm there has been a 60-day extension to the 90-day deadline for gambling companies to comply.”
New Hampshire Judge Makes a Wish
Gambling Compliance then revealed that the reason behind Rosenstein’s extension can be easily traced to the three lawsuits already filed in the US District Court for the District of New Hampshire.
In mid-February, US District Court Judge Paul Barbadoro of New Hampshire saw the potential problems with the mid-April deadline for the Wire Act versus the court cases in front of he and his fellow judges. He asked a Justice Department attorney to inquire about another extension.
By February 22, Barbadoro spoke with attorneys involved in the lawsuits and determined he would need at least one month to consider oral arguments, which have not yet even been made. Barbadoro also spoke to DOJ attorney Steven Myers to clarify and requested a new deadline for compliance to handle the pending lawsuits. Without that delay, Barbadoro said attorneys would have to rush through their legal briefs and oral arguments. And he called the lack of a delay “absurd” and “silly.”
Days later, Rosenstein did issue the additional 60 days requested.
ROCKET DOCKET: @NHLottery lawsuit against DoJ over new Wire Act opinion will likely come to a head on April 10th or 11th, when the summary judgment motions will be orally argued before Judge Barbadoro. All briefing on the MSJ and likely cross-motion to be completed by April 8th.
— Daniel Wallach (@WALLACHLEGAL) March 2, 2019
The New Hampshire District Court is preparing to speed this case along. According to several sources who saw a recent court filing, written briefs may be due to the court by April 8, with oral arguments scheduled within days of that deadline. This will allow ample time for consideration and a ruling.
These days still need to be confirmed, but all parties seem to be working together to make sure the case can proceed and come to a conclusion before the Department of Justice can begin enforcing the new Wire Act interpretation.
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