US Court of Appeals May Hear Wire Act Case in Early 2020
The schedule as dictated by the United States Court of Appeals for the First Circuit, the case involving the Wire Act should have its day in court in early 2020.
Court cases can drag on for years in the US court system. This can happen with the smallest cases on busy dockets as well as significant, consequential cases that face the same kind of backlog. The latter, however, also take more time to prepare, especially when they involve the US Department of Justice (DOJ) and the Attorney General (AG) of the United States.
It’s not as if Attorney General William Barr has much else on his plate these days, right?
Regardless, there is now a schedule for the briefings in the case of the New Hampshire Lottery Commission and NeoPollard Interactive versus Attorney General Barr, the DOJ, and the United States.
Earlier This Year…
While the process technically began in 1961 with the passage of the Wire Act, it took on new life in 2011 when the DOJ’s Office of Legal Counsel (OLC) issued a decision applying the Wire Act to sports betting online only. Online lotteries, poker, and other forms of gambling were not affected by the Wire Act.
But with the constant pushes from casino billionaire Sheldon Adelson, the OLC eventually reconsidered that decision under the Trump administration in late 2018. But the new reading of the Wire Act was unclear and troublesome to many states.
Those states filed suit in the US District Court and won.
That happened on June 3, 2019.
The decision sat for more than two months until the DOJ and AG Barr filed an appeal on the last possible day to do so, which was August 16.
BREAKING: The U.S. Department of Justice has appealed the order of a New Hampshire federal district court judge vacating its reinterpretation of the Wire Act as extending to all forms of gambling (not just sports betting). Today was the deadline for filing the notice of appeal. pic.twitter.com/naUu1BS3Hw
— Daniel Wallach (@WALLACHLEGAL) August 16, 2019
Appeal Moves Forward
The case moved to the US Court of Appeals for the First Circuit, docketed there on August 29, 2019.
The month of September was filled with notices about docketing, registrations for court notices, and general paperwork.
Interestingly, as a part of that process, there were numerous parties that failed to register for the appellate ECF account and will no longer receive notices about the case. And many of those parties were the attorneys for the DOJ and AG Barr.
But we digress.
The October 3 notice set the briefing schedule as follows:
–DOJ, US, and Barr brief and appendix due November 12, 2019
–NH Lottery Commission and NeoPollard brief due 30 days after original brief is served
–DOJ, US, and Barr reply brief due 21 days after appellee brief is served
There may be extensions granted for extenuating circumstances, but the current court documents state that the failure to file the brief in compliance with the rules could lead to the dismissal of the appeal.
Support for Both Sides
One of the first groups to hail the DOJ’s decision to appeal the case was the Coalition to Stop Internet Gambling (CSIG), Adelson’s lobbying group to reverse outlaw most types of online gambling in the US.
CSIG spokesperson Parker Mantell said, “American families do not want casinos available on their kids’ mobile devices 24-7, especially now that online casinos are offering cartoon and fairytale-themed games and advertisements for online gaming appearing on websites targeted at children. The Coalition remains confident that our position is correct legally and from a policy standpoint.”
Fact check: Online casinos do not market to, aim advertisements to, or target children in any way. CSIG’s claims to this effect have been debunked numerous times.
The National Association of Convenience Stores is also on the case as supporting the DOJ.
The First Circuit court documents show a number of “interested parties” that were also along for the ride in support of the New Hampshire Lottery Commission at the US Circuit Court level:
–iDevelopment and Economic Association (iDEA Growth)
–State of New Jersey
–Michigan Bureau of State Lottery
–Commonwealth of Pennsylvania
.@iDEA_Growth responds to the appeal of the DOJ ruling that the Wire Act covers only #sportsbetting and not lottery or gaming. Read our full press release here: https://t.co/ZkIS24Wx2p
— iDEA Growth (@iDEA_Growth) August 16, 2019
Potential First Circuit Judges
Last month, Legal Sports Report listed the judges that could hear the case:
–Jeffrey Howard
–Juan Torruella
–Sandra Lynch
–William Kayatta, Jr.
–David Baron
–Bruce Selya
–Michael Boudin
–Norman Stahl
–Kermit Lipez
–O. Rogeriee Thompson
It seems that the last five names on the above list are semi-retired, making the first five the most likely candidates to take the case. Only three judges will be on the panel for the appeal.
