Decision on Wire Act challenge could come in May

NH Lottery Director Expects Decision In Wire Act Lawsuit By End Of May

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Arguments in the challenge to the recent Wire Act opinion from the US Department of Justice begin in 10 days. The justice system can sometimes move slowly, but at least one person involved in the suit predicts a fairly quick resolution.

Charles McIntyre, the executive director of the New Hampshire Lottery Commission (NHLC), told Online Poker Report that he expects Judge Paul J. Barbadoro to render his decision before the end of May.

“In a statutory issue,” McIntyre said. “There’s a lot of things to look at. We’re talking about a law passed pre-internet. Most laws have been updated to reflect technology, and this one obviously hasn’t. He’s a very deliberate, considerate judge, so I think he’ll take at least 30 to 40 days to make a decision.”

Although he anticipates at least a month of deliberation, McIntyre also expects the judge to consider the way an extended timeline could impact the state’s budget.

What’s at stake in Wire Act case?

In January, the DOJ’s Office of Legal Counsel released an updated interpretation of the federal Wire Act, concluding that it pertains to all forms of interstate gambling — not just sports betting. That memo reversed an Obama-era opinion from the same office under a different administration.

While the Wire Act was enacted in 1961 to combat mob-related activities in illegal sports betting, the new opinion could put legal internet poker and lottery programs in jeopardy.

The NHLC is leading the challenge to that opinion, filing suit in the federal district court in Concord. Thereafter, many more states and state agencies involved themselves in the case by filing amicus briefs.

“We’re a pretty cohesive group of states in terms of lotteries,” McIntyre said. “Many of the heads of lotteries are my friends, and I expected support from them, for sure.”

NH budget deadline adds urgency

The legislature and governor have until the end of June to finalize a two-year budget.

“One of the things we impressed upon the judge is that internet lottery revenues are a part of our budget process,” McIntyre said. “We submit revenue expectations for the next two years, including internet lottery revenues.”

McIntyre noted that lottery projections for the budget over the two-year period currently carry an asterisk next to the $192 million figure pending the outcome of the case. A broad interpretation of the DOJ opinion could even endanger some retail offerings.

“We don’t want the budget to spend money that won’t exist,” he said.

What to expect at April 11 hearing

McIntyre, a former attorney, asserts that the DOJ’s recent motion won’t stop the hearing. Arguments over lack of standing and jurisdiction, he says, are “standard litigation practice.”

In addition to the plaintiffs and defendants themselves, McIntyre confirmed that the parties who submitted amicus briefs — including New Jersey Attorney General Gurbir Grewal — are invited to speak before the court.

“I expect there will be a lot of talking,” said McIntyre. He provided an affidavit on lottery operations but doesn’t plan to testify. “I expect it will be a lengthy proceeding.”

McIntyre predicts a narrow window between the middle and end of May for the judge to issue his decision. The DOJ recently extended its non-prosecution period related to the Wire Act opinion into the middle of June.

New Hampshire Attorney General Gordon MacDonald backed up McIntyre’s contention that a ruling will come by the end of May in speaking to lawmakers last week, according to the Associated Press.

Any decision, of course, could wind up in the appeals process thereafter.

- Matthew began writing about legislative efforts to regulate online poker in 2007 after UIGEA interfered with his hobby of playing small-stakes online poker while working as a sportswriter at the Los Angeles Daily News. Covering the topic for Bluff Magazine, PokerNews and now Online Poker Report, he has interviewed four U.S. Congressmen and 40+ state legislators. His poker writing has been cited by The Atlantic, and Matt also has written on a variety of topics for Playboy Magazine, Men's Journal, Los Angeles magazine, LA Weekly and
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