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Plaintiffs Respond to Victory in Wire Act Case

Written by Jennifer Newell
Last updated on
Jennifer Newell

This week’s closure of the Wire Act case was years in the making and a relief for states across America. Entities from lottery commissions to businesses around the gambling and betting industries count it as a win.

On June 22, the United States Department of Justice, headed up by Attorney General Merrick Garland, confirmed that it will not appeal the Wire Act case to the US Supreme Court. This was five months after the US Court of Appeals for the First Circuit affirmed the US District Court’s decision of June 2019. That decision ruled in favor of a group of plaintiffs:  New Hampshire Lottery Commission, NeoPollard Interactive LLC, and Pollard Banknote Limited.

The standing precedent is now the judgment of Judge Paul Barbadoro:

“I hereby declare that §1084(a) of the Wire Act, 18 U.S.C. §1084(a), applies only to transmissions related to bets or wagers on a sporting event or contest. The 2018 OLC Opinion is set aside. SO ORDERED.”

And that harkens back to the 2011 memo from the DOJ’s Office of Legal Counsel, which also concluded that the 1961 Federal Wire Act applies only to sports betting, not to other forms of online lotteries and gambling. Once again, that OLC document is THE modern interpretation of the antiquated law.

New Hampshire Lottery Responds

Many people confirmed the DOJ statement this week, the one originally obtained by gaming attorney and iDEA Growth General Counsel Jeff Ifrah. However, without an official press release or confirming document, attorneys for the plaintiffs wanted to be certain that there had been no miscommunication.

The New Hampshire Lottery did acknowledge the closure of the case on June 24, and they were prepared to declare victory. Executive Director Charlie McIntyre released a statement that read, in part:

“While we have been confident in this outcome throughout this process, we are extremely pleased to have closure. This case represents a historic victory for the New Hampshire Lottery and lotteries across the country. … As the nation’s first lottery, we had a responsibility to challenge this opinion.”

McIntyre went on to thank the New Hampshire Attorney General’s Office for guiding the lottery commission through the process and for filing the suit on their behalf in 2019.

NeoPollard Interactive Speaks

Pollard Banknote Limited, one of the plaintiffs, and NeoGames own NeoPollard Interactive. And it was that subsidiary that announced that it was “thrilled” with the decision of the Court of Appeals in January and the District Court before it. The press released noted its importance to all lottery sales – retail or online – that rely on the internet transmission of data. This also pertains to multi-state games like Powerball and Mega Millions.

NeoPollard General Manager Liz Siver said, “We are very happy with the recent judgement confirming, yet again, the 2011 interpretation of the Wire Act. This is a great success for the lottery industry generally, and iLottery specifically, as it ensures that the sale of both iLottery games and national and regional multi-state games can continue to be strong contributors to lottery sales and the good causes that US lotteries support.”

Awaiting Official DOJ Statement

Normally, an entity like the US Justice Department would not issue a statement of inaction. For example, it wouldn’t make much sense for AG Merrick Garland to issue a press release regarding which cases he will not pursue in court.

However, the Wire Act situation needs it. Online lotteries, casinos, poker sites, and other forms of online gambling currently operate on the basis of the 2011 Office of Legal Counsel decision and a 2019 District Court case. It would be clearer if the DOJ would issue a formal statement to acknowledge its promise to adhere to those interpretations of the Wire Act pertaining only to sports betting.

This is what New Jersey Attorney General Gurbir Grewal and 25 other attorneys general requested from Garland. In a significant letter detailing the reasons a statement is needed, the letter may elicit a response from the DOJ.

 

 

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