New Hampshire Becomes First State to Sue DOJ Over New Interpretation of the Wire Act

As noted in our prior blog post, the Department of Justice’s (“DOJ”) Office of Legal Counsel (“OLC”), in a controversial move, recently released an opinion overturning its 2011 interpretation of the federal Wire Act, 18 U.S.C. § 1084. The DOJ’s reinterpretation states that the Wire Act applies to any form of gambling using wire communications that cross state lines, which could jeopardize state lotteries and online gambling.

The New Hampshire Lottery Commission (“NHLC”), represented by New Hampshire’s AG Gordon Macdonald, filed a complaint dated February 15, 2019 in the US District Court for the District of New Hampshire. The complaint requests the court to: (1) declare that the federal Wire Act does not apply to state lotteries; (2) vacate the OLC’s reinterpretation; (3) permanently enjoin the DOJ from enforcing the OLC’s reinterpretation; and (4) grant further relief “as the court deems just and equitable.”

The complaint made several arguments in support of its requested relief. First, it asserted that the reinterpretation “is not faithful to the text, structure, purpose, or legislative history of the Wire Act.” Second, it argues that the reinterpretation is unconstitutional because it violates the First Amendment and is vague. Third, it argues that the reinterpretation violates the Supreme Court’s Tenth Amendment jurisprudence by intruding “upon the sovereign interests of the State of New Hampshire without unmistakably clear language demonstrating that congress intended such a result.” The NHLC has also filed for a motion for a speedy hearing, which, if granted, could cause the District Court to produce a decision in the next few weeks.

If you would like to discuss the Wire Act or have us conduct a risk analysis of your business model in light of the 2018 Opinion, please contact the authors Karl Rutledge at krutledge@lrrc.com, Glenn Light at glight@lrrc.com, or Mary Tran at mtran@lrrc.com.