Nov. 12 the next deadline in Wire Act litigation

Update On Wire Act Case: First Circuit Sets Deadlines For Briefs

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The lawsuit over the Wire Act and its applicability to online gambling is far from over.

In this case, the United States Court of Appeals for the First Circuit just set the briefing schedule for William P. Barr, United States Attorney General and the United States Department of Justice.

The First Circuit is requiring Barr and the DOJ to file their briefs and other necessary paperwork by Nov. 12.

With that in mind — and according to the Federal Rules of Appellate Procedure 31(a) — the New Hampshire Lottery Commission along with the other state lotteries and vendors that joined the suit have 30 days thereafter to respond after the DOJ files its brief. The DOJ’s reply brief is then due within 21 days after the plaintiffs respond.

Quick rundown of Wire Act litigation

To begin with, an opinion issued in 2011 at the request of New York and Illinois state lotteries narrowed the scope of the Wire Act. The opinion from the Office of Legal Counsel specifically stated that the Wire Act applies only to sports betting.

Unfortunately, the DOJ backtracked on its previous stance with a memo in 2018. Online gambling vendors and state lotteries now risk federal prosecution under this new interpretation.

New Hampshire was so concerned that it filed a federal lawsuit due to the DOJ’s abrupt about-face regarding the Wire Act. In June, US District Court Judge Paul Barbadoro ruled in favor of online gambling and state lotteries by finding that the Wire Act only applies to sports betting and not other forms of interstate online gambling.

However, this ruling was not without precautions. Barbadoro discerned early on that the case would eventually reach the Supreme Court of the United States on appeal.

True to his words, the DOJ filed a notice of appeal to the First Circuit in August. Meanwhile, the DOJ released another memo stating that Wire Act enforcement is postponed until 2020 or when litigation concludes on this case.

What’s ahead for Wire Act suit?

Once the briefs and motions are all filed, the First Circuit will then sets a date for oral arguments. Arguments occur before a panel of three judges. Currently, there are 10 appellate judges that could possibly hear the case:

  • Jeffrey R. Howard
  • Juan R. Torruella
  • Bruce M. Selya
  • Michael Boudin
  • Norman H. Stahl
  • Sandra L. Lynch
  • Kermit V. Lipez
  • O. Rogeriee Thompson
  • William J. Kayatta, Jr.
  • David J. Barron

Per sports law professor John Holden, Howard, Torruella, Lynch, Thompson, Kayatta, and Barron are the judges most likely to hear this case as the others are considered semi-retired.

Oral arguments normally occur the first full week of each month, so the court could schedule them as soon as the first week of January 2020.

- Vanessa Lutz graduated from Washington and Lee University School of Law with a J.D. She played poker professionally and then took some time off to have a family. Now she is combining her experience as a contributor to OPR.
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