New Hampshire Federal Judge Rejects DOJ About-Face Seen as Threat to Online Gambling
U.S. District Judge Paul Barbadoro rejected the Justice Department's abrupt abandonment last year of a legal opinion that had paved the way for the growth of online gambling.
June 03, 2019 at 07:54 PM
3 minute read
The original version of this story was published on National Law Journal
A New Hampshire federal judge on Monday struck down a Justice Department opinion that threatened the online gambling industry, just a week before internet-based wagering was set to enter a period of heightened legal peril.
In a 60-page opinion, Judge Paul Barbadoro of the U.S. District Court for the District of New Hampshire rejected the Justice Department's abrupt abandonment last year of a legal opinion that had paved the way for the growth of online gambling.
Under the Obama administration, the Justice Department opined on whether in-state sales of lottery tickets over the internet would violate a federal law called the Wire Act, determining in 2011 that the law prohibited online sports gambling but not other forms of internet-based wagering, such as lotteries.
But in late 2018, the Trump administration Justice Department reversed that opinion, finding that Wire Act broadly prohibited online betting.
Barbadoro, granting the New Hampshire Lottery Commission's request for summary judgment, said the Justice Department's new legal opinion rested on a faulty reading of the Wire Act. “Based on the text, context, and structure of the Wire Act,” he said it was clear that the law is “limited to sports gambling.”
“The 2018 OLC opinion,” he added, “is set aside.”
Barbadoro's ruling arrived 11 days before a key deadline for the online gambling industry. In January, when the legal opinion was publicly released, the then-deputy attorney general said in a memo that the Justice Department would wait 90 days before enforcing the Wire Act under its newly broadened interpretation of the law. Rod Rosenstein later extended that grace period to June 14 to give businesses added time to “bring their operations into compliance with federal law.”
It is unclear whether the Justice Department will heed Barbadoro's decision nationwide after June 14. A DOJ spokeswoman said the department “is reviewing the decision and declines to comment further at this time.”
Barbadoro, for his part, said he had “no reason to believe that the government will fail to respect my ruling that the Wire Act is limited to sports gambling.”
The decision marked a victory not only for the New Hampshire Lottery Commission but also NeoPollard Interactive LLC, the technology provider for the state's online lottery system, which filed its own challenge to the Justice Department in February.
NeoPollard, represented by Gibson, Dunn & Crutcher, had argued that the Justice Department's reversal of the earlier Wire Act guidance was “deeply flawed” and the result of a lobbying campaign by the Republican mega-donor and casino magnate Sheldon Adelson. In January, The Wall Street Journal reported that the Justice Department's opinion tracked closely with a legal memo offered by Adelson's lawyers. The Justice Department denied that Adelson or any outside parties were consulted on the reversal of the 2011 guidance, according to the Wall Street Journal report, although department officials did concede that they were in possession of the legal analysis prepared by the Las Vegas casino magnate's lawyers.
Gibson Dunn partner Matthew McGill said Barbadoro's ruling would have a “nationwide impact.”
“Throughout the country, “ he said, “state lotteries and others in the gaming industry once again can rely on the Justice Department's 2011 opinion that the Wire Act is limited to sports betting.”
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