DOJ, New Hampshire complete latest round in fight over the Wire Act

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Posted on: June 19, 2020 8:59 pm EDT

The battle over the legality of online gaming in the US continues

The latest round of the case between the New Hampshire Lottery Commission (NHLC) and NeoPollard Interactive LLC against the US Department of Justice (DOJ) was completed yesterday. Everything began in February 2019 due to a recent interpretation of the Wire Act made by the DOJ. Yesterday, both parties appeared virtually in front of the US Court of Appeals for the First Circuit via telephone to give their arguments. This is a case that, though, involves only one state, could change the online poker gambling scene for good.

The attorneys representing the plaintiffs claim that the 2018 Office of Legal Counsel’s (OLC) interpretation of the Wire Act could lead to the criminalization of online lottery sales and online poker across the state. The lawsuit was won by the NHLC last year in a lower federal court, and a judge said that the scope of the Wire Act was limited to sports betting only. Following up on this decision, the DOJ filed an appeal, claiming that the enforcement of the Wire Act includes other forms of gambling besides sports betting.

During the arguments given in front of the court yesterday, the DOJ clarified a few points. “The plaintiffs face no threat of prosecution for anything they’ve done in the past, anything they’re currently doing, or anything they will do in the future indefinitely,” said Jeffrey E. Sandberg, counsel for the DOJ. “There’s no threat at all. OLC opinions are advice [internally] to the federal government. They cannot and do not directly affect the rights of private parties.”

However, the plaintiffs are not satisfied with this answer and attorneys stated that the DOJ could simply step back from their declaration and present a legal case against them at any moment it wants. It’s not deliberative advice internal to the department. It’s an edict solicited by an interested private person to the public-at-large precisely to end businesses’ reliance on the 2011 OLC opinion,” said Matthew D. McGill, counsels for the plaintiffs.

The three-judge panel hearing the case has a good grasp of the situation and what’s at stake, and made references yesterday that seemed to indicate that it might be willing to lean in favor of the NHLC. However, even if the panel rejects the DOJ’s appeal, the case will almost certainly be taken to the US Supreme Court.