We have reported previously on:
- the U.S. Department of Justice (DoJ) Opinion memorandum from the Office of Legal Counsel (“OLC”) dated 2 November 2018, reversing its previous (2011) interpretation of section 1084(a) of the Federal Wire Act, and
- the subsequent judicial challenge to that reversal filed on behalf of the New Hampshire Lottery Commission.
Yesterday, the New Hampshire District Court issued its formal ruling in favour of the New Hampshire Lottery Commission (a copy of which can be downloaded below), namely that “§1084(a) of the Wire Act, 18 U.S.C. § 1084(a), applies only to transmissions related to bets or wagers on a sporting event or contest. The 2018 OLC Opinion is set aside”.
In his 60-page ruling, Judge Paul Barbadoro rejected the DoJ’s argument that New Hampshire Lottery Commission had no grounds to file its case, as the revised opinion had not yet been enforced, noting that it had “openly engaged for many years in conduct that the 2018 OLC Opinion now brands as criminal”.
A helpful analysis of the ruling is contained within an iGaming Business article entitled “New Hampshire prevails in Wire Act challenge”. It includes comment on what we have previously termed “the mystery of the missing comma”, in relation which Judge Barbadoro has ruled: “In sum, while the syntax employed by the Wire Act’s drafters does not suffice to answer whether [it] is limited to sports gambling, a careful contextual reading of the Wire Act as a whole reveals that the narrower construction proposed by the 2011 OLC Opinion represents the better reading. The Act’s legislative history, if anything, confirms this conclusion. Accordingly, I construe all four prohibitions in §1084(a) to apply only to bets or wagers on a sporting event or contest.”
It is unlikely that this ruling represents the end of the argument and we await to see whether the DoJ lodges an appeal to the First Circuit Court of Appeals.
UPDATE: The DoJ submitted its notice of appeal on 16 August 2019, just three days before the deadline for doing so.