First Circuit Requests Briefs for DOJ Wire Act Appeal
The next step in determining the future of legalized online gambling in the United States is underway. The United States Court of Appeals for the First Circuit has now announced the briefing schedule for the DOJ vs. New Hampshire Lottery Commission appeal case.
This is the first step in the continued battle to overturn the revised Wire Act opinion given by the US Department of Justice in 2018.
DOJ Must File Briefs by November 12
The first deadline is set for briefs in the DOJ’s appeal of the NH Lottery Commission lawsuit. The First Circuit instructed the DOJ to deliver their briefs by November 12. This will begin a dual-phase response period by both parties.
After the DOJ delivers their briefs and associated paperwork, the NH Lottery Commission has 30 days to deliver their response. Other parties that have joined in the lawsuit must also file their briefs and paperwork during this period.
Once the NH Lottery Commission has filed their briefs, the DOJ will have an additional 21 days to file their reply brief.
What’s Next for the Case?
Once briefs and replies are filed, the case then proceeds to oral arguments. The First Circuit generally hears cases on the first week of a calendar month. Based on the timeframe outlined above, the earliest we can expect oral arguments is January 2020. However, it could be later.
Oral arguments in the First Circuit are head by a three-judge panel. There are ten judges that can serve on the panel.
How We Got Here
If you remember, the Department of Justice issued a new opinion on the Federal Wire Act in 2018 that stated online casino gambling in the United States is subject to the Wire Act. Back in 2011, the DOJ said that the Wire Act was only applicable to sports betting.
The 2011 opinion is the basis used by many states for online gambling legislation. New Jersey, Delaware, Pennsylvania, West Virginia, and Nevada have all regulated online gambling and online poker since that time. Other states have regulated online lottery products based on the same assumptions.
The new opinion is giving operators a timeline to meet the new guidelines, which means that all operations must be conducted intrastate. This means that all data must stay within state borders, including any forms of advertising. Even electronic payment transmissions must stay in-state.
New Hampshire filed a lawsuit against the DOJ and back in June, US District Court Judge Paul Barbadoro overturned the Wire Act memo, claiming the Wire Act is only applicable to sports betting.
The DOJ then changed the enforcement date of the new Wire Act opinion to January 2020, or the conclusion of court litigation on the case. They then filed an appeal with the First Circuit.
What This Means for the Online Gambling Industry
For now, online gambling operators in regulated states can continue to offer online casino games, online slots, and online lottery products as outlined by regulators. Pennsylvania took the additional step to bring their industry into compliance with the new DOJ memo as a precaution.
Other states are waiting to see the outcome of the case. It is likely that other states are keeping a close eye on this case as it determines the viability of online gambling for the future. Should the DOJ win their case, online gambling will become a lot more difficult in the United States due to the restrictions of the Wire Act.
Should the DOJ lose their case, it will likely continue to the Supreme Court and this drama will likely drag out another year or longer. We will keep you updated as developments arise.