US DOJ in Wire Act Case Faces Mid-June Deadline
A filing in the United States Court of Appeals for the First Circuit this week created a lot of buzz in the gambling world. It indicated that – quite possibly – the long-running case involving the US Wire Act finally ended. After more than a decade of speculation and two differing opinions by the Justice Department’s Office of Legal Counsel, the matter was settled.
This is not exactly true.
But it is close, as there is a potential end date for the case of the New Hampshire Lottery Commission and NeoPollard versus the US Attorney General, Department of Justice, and the United States of America.
Per a lottery spox IRT the status of the Wire Act case
"The @NHLottery has spoken with the NH Attorney General's office and it is our understanding that the appeal process is not officially over yet. We will continue to monitor any developments in the case moving forward."
— Steve Bittenbender (@CasinoOrgSteveB) March 19, 2021
Years of Wire Act Confusion
The case officially started in early 2019 when the New Hampshire Lottery Commission and online lottery platform provider NeoPollard Interactive sued the US Justice Department and its Attorney General. They did so on behalf of many states that were more than a bit upset and confused by the most recent interpretation of the Wire Act from the DOJ’s Office of Legal Counsel.
States with lotteries online or internet gambling – especially online poker – wanted clarification. Some of those states originally sought clarification in 2009 with regard to any potential conflicts between the 1961 Wire Act and interstate lotteries. A 2011 ruling from the Obama Administration’s DOJ put their fears to rest, asserting that the Wire Act pertained to sports betting only. This gave states the nod to move forward with online lottery plans, as well as legislation pertaining to state-regulated online poker and casino games.
Fast-forward to the Trump Administration’s DOJ and the donation-driven influence of anti-igaming activist Sheldon Adelson. That delivered a 2018 OLC opinion that essentially reversed the 2011 opinion but not in a clear way, prompting the lawsuit.
This timeline breaks down the progression of the issue and its path through the US courts system:
–September 13, 1961: Federal Wire Act (to stop organized crime trafficking) became effective
–September 20, 2011: US Asst. AG Virginia Seitz from DOJ OLC issued memo regarding Wire Act, determined it applied only to sports wagering, not online lotteries, poker, or casino games
–November 2, 2018: US Asst. Acting AG Steven Engel from DOJ OLC issued memo reversing 2011 opinion, declared Wire Act not limited to sports betting
–January 14, 2019: New Wire Act opinion made public
–February 15, 2019: New Hampshire Lottery Commission and NeoPollard (lottery platform provider) filed lawsuit against Barr and DOJ
-April 8, 2019: Deputy AG issued memo to states claiming no position on state lottery applicability
–April 11, 2019: US District Court in New Hampshire heard oral arguments, Judge Paul Barbadoro predicted case would reach US Supreme Court
–June 3, 2019: Barbadoro ruled for plaintiffs, set aside Barr-DOJ Wire Act interpretation
–August 16, 2019: New US AG Barr and DOJ appealed case in First Circuit Court of Appeals
–December 20, 2019: DOJ and Barr filed initial brief, extended application through June 30, 2020
–February 26, 2020: New Hampshire Lottery and NeoPollard filed briefs
–May 26, 2020: DOJ and Barr filed reply brief
–June 18, 2020: US Court of Appeals heard oral arguments
–January 20, 2021: Appeals Court upheld Barbadoro decision, ruled for New Hampshire Lottery Commission and NeoPollard
And then, the wait for a potential appeal to the United States Supreme Court began.
A Filing Creates a Flutter
For those without a law degree or specialized knowledge of the US Appeals Court and SCOTUS process, like this author, the time given to the DOJ and US Attorney General to appeal their case to the Supreme Court seemed fairly clear-cut.
Per the SCOTUS blog, the appellants in the Appeals Court case had 90 days to ask the US Supreme Court to heart the case. The appellants could also file a petition for a 60-day extension in which to make that decision.
The only documents filed in the case since the January 20 decision came in early March. Those were notes to add Robert Montague Wilkinson on as the new Acting Attorney General of the US and then to add Merrick Garland as the new AG.
And then, on March 15, the court issued a mandate:
“In accordance with the judgment of January 20, 2021, and pursuant to Federal Rule of Appellate Procedure 41(a), this constitutes the formal mandate of this Court.”
That certainly sounds like a win!
Hold Up, Wait a Minute
Pokerfuse did a little digging and figured out exactly what it all meant.
With all due respect to opr for their excellent reporting – this is our understanding of this week's Wire Act developments. https://t.co/HMiFChcNjp
— Nick Jones (@pokerprojones) March 19, 2021
The mandate was a procedural step, one that simply formalized the January 20 decision. And noted igaming attorney Jeff Ifrah told Pokerfuse that it was “just a normal routine matter that occurs once the Court of Appeals decision becomes final.”
However disappointing that may be, it does set an official timeline by which us non-lawyering types can follow the process. The mandate officially started the clock for the parties to appeal the matter if they choose. They now have 90 days to file a petition for a writ of certiorari, which is the formal request to SCOTUS.
That puts the deadline on June 15, 2021.
The likelihood of this happening is slim to none. While it might be nice to have a formal SCOTUS opinion on the matter, the court decisions thus far nullify the 2018 OLC memo and reset the precedent back to the 2011 interpretation of the Wire Act. This was the one under which states have been expanding their online poker, casino games, and lotteries.
As we wrote in January, the Biden Administration is unlikely to seek to continue this case. Newly-sworn-in AG Merrick Garland has little motivation to pursue the wishes of Sheldon Adelson or Republican lawmakers who wish to revert to 1961 laws regarding gambling. Garland is likely to side with the courts thus far and allow their decisions to stand.
We will know for certain by June 15, 2021.
The opportunity for the DOJ under the Biden administration to appeal the Wire Act case at the Supreme Court is still technically available.
But the clock is ticking and DOJ has until mid-June to do so⏰
Whether the DOJ will appeal?🧐https://t.co/6niRFRvaFU
— pokerfuse (@pokerfuse) March 20, 2021
Disclaimer: This author is not a lawyer and has virtually zero qualifications to analyze legal documents or arguments. Nevertheless, she persists.