The Department of Justice, through Deputy Attorney General Jeff Rosen, released a memo dated December 18, 2019, to United States Assistant Attorneys General directing them to forbear any prosecutions for Wire Act violations until June 30, 2020, or 60 days after final entry of judgment in the litigation currently pending in the 1st Circuit Court of Appeals. The litigation arose from the January 2019 DOJ Wire Act Opinion (“2019 Opinion”) that reverses a prior 2011 DOJ Opinion that held the Wire Act only applied to sports gambling.  That case is currently before the 1st Circuit on appeal from a New Hampshire District Court’s opinion vacating the 2019 Opinion. The DOJ must file its brief by December 20, 2019, with New Hampshire Lottery’s brief due 30 days later and the DOJ’s reply brief due 20 days after the New Hampshire Lottery’s brief.

The DOJ originally issued a memorandum on February 28, 2019, directing that no Assistant Attorney General should pursue any prosecutions based upon the new interpretation explained in the 2019 Opinion until June 14, 2019. The DOJ also issued a memo on April 8, 2019, directing that no Assistant Attorney General should pursue any prosecutions against State lotteries or their vendors until receiving further DOJ direction. With the New Hampshire court issuing its opinion on June 3, 2019, vacating the 2019 Opinion, the June 14, 2019, deadline was extended to December 31, 2019, or 60 days following final judgement in the New Hampshire litigation by a June 12, 2019, memo.  With the 1st Circuit case likely being appealed to the Supreme Court regardless of the outcome, the moratorium will extend well past June 30, 2019, unless the DOJ changes its position.


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