United States: New Hampshire Federal Judge Rules Wire Act Only Applies To Sports Betting – Now What?

On June 3, 2019, Judge Paul Barbadoro for the District of New Hampshire concluded in a 63-page Memorandum Opinion that the purview of the Wire Act is limited to sports wagering. The effect of the Court's opinion, however, may be limited in states other than New Hampshire.

After determining that the plaintiffs in the case, the New Hampshire Lottery Commission and NeoPollard Interactive LLC, new Hampshire's iLottery vendor, have standing to challenge the DOJ's 2018 Wire Act Opinion because they have established a threat of imminent injury, the Court addresses whether the Wire Act applies beyond sports wagering.

First, the Court determines that, despite the DOJ's position, the language of the Wire Act is ambiguous. Although each party in the case contends that the plain language of the statute mandates its position, the Court disagrees, largely due to the lack of punctuation in the statute that would clearly signal the use of any single statutory canon. The Court cites the 2011 OLC Opinion that the clause could "be read either way" and concludes that the statute is ambiguous.

Because the text of the statute is unclear, the judge turns to "the significant contextual evidence that calls the OLC's current interpretation into question." The Court notes that the OLC's 2018 Opinion produces "incongruous" results that the 2011 Opinion avoids. Further, the Court notes that the Paraphernalia Act, which was passed the same day as the Wire Act, contains clear and specific language that demonstrates Congress's intent to target non-sports wagering. In contrast, the Wire Act contains no such language – demonstrating Congress's intent to limit the Wire Act to sports wagering. Additionally, the Court states that "if anything, the legislative history [of the Wire Act] supports the plaintiffs' position" that the Wire Act applies only to sports wagering.

Finally, and perhaps most importantly for non-parties to the case, the Opinion addresses the parties' remedies. The Court maintains that its decision binds only the parties to the case, and declines to give a broader scope to its declaratory judgment. However, the Court notes that its judgment binds the parties beyond the geographic boundaries of its district, due to the plaintiffs' operation in states other than New Hampshire. However, the Court does address an argument made by an amicus brief, which advocates for an extension of the declaratory judgment to non-parties on behalf of the Lottery Commission. Although the Court concludes that this argument is insufficiently developed on the record, the Court invites the plaintiffs to pursue such relief in a footnote, within 14 days of the issuance of the Court's Order. Thus, although the Court's current declaratory judgment binds only the parties to the case, the plaintiffs have the option to pursue more extensive relief.

The DOJ also may appeal the Court's decision, paving the way for an unclear legal landscape yet again. In short, it remains to be seen the effect the Court's decision will have outside of New Hampshire. We will continue to monitor this topic and provide updates as they arise.

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