Earlier this year, the Department of Justice (“DOJ”) released an opinion reversing its prior position on the Wire Act, now concluding that the Wire Act not only applies to sports wagering but all gambling that utilizes communications lines in interstate commerce.  In response, the State of New Hampshire and New Hampshire’s iLottery filed suit against the DOJ in federal court, arguing that the DOJ’s recent switch was not supported by law and ignored the reliance that New Hampshire and other states placed upon the 2011 Wire Act opinion that ruled that the Wire Act did not apply to state-run lotteries that utilized the Internet for sales.

A Michigan company, NeoPollard Interactive, LLC, which is the provider for the New Hampshire iLottery’s system as well as several other states, including Michigan, also filed a lawsuit in New Hampshire federal court.  The New Hampshire court indicated in a filing that it is likely to consolidate the case with the New Hampshire Lottery case.  Notably, former Lottery Commissioner Scott Bowen joined NeoPollard Interactive, LLC as a Senior Vice President upon his departure from the Bureau of State Lottery.

On Friday of last week, the state of Michigan filed an amicus curiae brief in the New Hampshire case supporting the positive of the state of New Hampshire and of NeoPollard.   An amicus curiae is a brief that is filed in a lawsuit by interested parties that aren’t actual plaintiffs or defendants in the lawsuit.

In the brief, the State of Michigan argues that the Wire Act interpretation puts the state in the untenable position of either suspending its iLottery program, continuing offering its iLottery products knowing that there is a chance that the DOJ might choose to prosecute the state, or to invest significant money and time in attempting to make modifications to comply with the new interpretation.  Alaska, Colorado, Delaware, the District of Columbia, Idaho, Kentucky, Mississippi, North Carolina, Rhode Island, Tennessee, Vermont, and Virginia all joined in Michigan’s brief.  In addition, New Jersey filed a separate amicus curiae and the State of Pennsylvania attempted to intervene in the case.  While the judge denied that attempt, the court did indicate that Pennsylvania could file an amicus curiae brief.

In conjunction with their complaints, both the State of New Hampshire and NeoPollard filed motions for summary judgment and requests for oral argument, arguing that the court needed to expedite the case as the DOJ has only delayed enforcement of its new policy on the Wire Act until June 14, 2019.  The lawsuit was served on the DOJ on February 15, 2019 and, pursuant to Federal Rules of Civil Procedure, it has 60 days to respond unless the plaintiffs grant it additional time.


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