First Briefs Due for DOJ Wire Act Appeal on Nov. 12, Case Likely to Be Heard in 2020

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Those interested in the progression of the Department of Justice’s (DOJ) appeal over a ruling that found that the Wire Act does indeed only apply to sports betting – and not other activities, like online poker – now have a schedule to look forward to, though it seems inevitable that the case won’t be heard in court until sometime next year.

Wire Act DOJ Appeal
The Department of Justice’s Wire Act appeal will likely be heard in early 2020, after briefs are filed later this year. (Image: Jonathan Ernst/Reuters)

According to a notice from the United States Court of Appeals for the First Circuit, which was first reported on by Vanessa Lutz of Online Poker Report, United States Attorney General William Barr and the DOJ will be required to submit briefs and all other necessary paperwork by Nov. 12.

Oral Arguments Could Begin as Soon as January

That will then set into motion a series of filings that will take place before the case can be heard. The New Hampshire Lottery Commission will then have 30 days to respond to the DOJ brief, after which, the DOJ can file its own reply within 21 days.

Take those dates together, and you’ll notice that they rapidly approach the end of 2019. That would likely make January 2020 the earliest date for oral arguments. Lutz’s report noted that oral arguments are normally heard during the first full week of the month; that could easily mean that the case is pushed back to February, especially if the series of briefs are each submitted close to their respective deadlines.

With this case likely to be appealed up to the Supreme Court of the United States before it is ultimately resolved, those oral arguments won’t be the last step in a process that began in earnest last year.

Battle Over Wire Act Interpretation Began in January

In January, the DOJ’s Office of Legal Counsel (OLC) released an opinion suggesting that the Wire Act applies to all interstate gambling, reversing an OLC interpretation released in 2011. While the new opinion acknowledged that the Wire Act wasn’t a model of grammatical clarity, it said that only a specific section of the statute was about sports betting, and that the rest could apply to other forms of interstate wagering, like online poker and casino games.

The New Hampshire Lottery Commission, fearing that such a broad interpretation could threaten the legality of its online lottery sales, challenged that interpretation in court. In June, US District Court Judge Paul Barbadoro ruled that while the syntax of the law wasn’t clear, “the narrower construction proposed by the 2011 OLC Opinion represents the better reading.

Judge Barbadoro also found that New Hampshire might well be correct in thinking lottery sales could be impacted, as the 2011 memo was a response to a request by two states for an opinion on whether the Wire Act would apply to selling online lottery tickets, and neither opinion found that state-run gaming was simply exempt from the Wire Act.

In August, the DOJ officially filed its appeal to that ruling, though further movement on the case was halted until the First Circuit Court of Appeals came back in session this month.

The appeal process will maintain the uncertainty hanging over the future of online gambling in the United States. While intrastate games would be impacted somewhat – for instance, it’s possible that all servers and payment processors might need to be located within state borders to remain legal – the real danger is to interstate activities. That includes interstate online poker compacts, which most observers agree are critical to the success of online poker in the United States, as they may be the only way for sites to build large player pools.

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