Hurry Up And Wait: New Hampshire Lottery Expansion Still Without A Court Date

Posted By Derek Helling on June 10, 2020

The ongoing legal dispute between the New Hampshire Lottery and the Department of Justice is currently at a standstill.

The court that will hear an appeal of the Wire Act lawsuit against the DOJ has yet to schedule oral arguments.

It will likely be some time before the NH Lottery definitively knows whether it can offer its online lottery products to players in other states. That will probably still be true after the US First Circuit Court finally hears the case as well.

What is the Wire Act lawsuit about?

In 2018, the DOJ made an unexpected move. It reversed its long-standing opinion that the Wire Act only pertained to online sports betting.

The DOJ’s new interpretation of the law broadened the reach of the Act to also apply to online casino games and lottery sales. That’s a significant roadblock for the NH Lottery.

Without that hurdle, the NH Lottery could sell tickets for most of its online lottery games anywhere in the US.

Of course, that wouldn’t apply to NH online sports betting.

The Wire Act explicitly states that offering sports betting across state lines is illegal. That’s why each state has to decide whether to legalize and regulate the activity for itself.

A reversal of the 2018 opinion on the Wire Act would benefit more than just the NH Lottery. The Multistate Lottery Corporation, which operates the popular games Mega Millions and Powerball in many states, could, in theory, also begin to sell tickets online.

Additionally, companies that legally offer online slots and electronic versions of casino table games in certain states could start letting customers play from anywhere in the US.

As great as that may sound for online gaming enthusiasts, it’s not going to happen anytime soon.

What’s the status of the lawsuit?

In response to the new opinion, the NH Lottery and a company called NeoPollard Interactive filed suit to block the DOJ enforcing its new take. The plaintiffs made three main arguments in their complaint:

  • The threat of the DOJ enforcing its new opinion was sufficient reason to file the complaint
  • The federal Wire Act of 1961 applies only to online sports betting
  • The new interpretation of the Act defies precedent and is incoherent

The Lottery claimed initial victory last year.

New Hampshire District Court Judge Paul Barbadoro agreed with the Lottery, stating his opinion that the Act only applied to betting on sporting events.

The DOJ has since appealed to the US First Circuit Court, however. The plaintiffs filed their briefs to that court in late February. The Court is still awaiting DOJ’s reply.

It’s uncertain when that will come, as US Attorney General William Barr filed for an extension with the court. Until the Court receives the DOJ’s response, it won’t schedule oral arguments.

In the meantime, however, several companies and state governments have filed amici briefs (letters to a court in support of one side of a civil lawsuit) on the NH Lottery’s behalf. Those were:

  • Michigan
  • New Jersey
  • Pennsylvania
  • iDEA
  • International Game Technology
  • Association of Gaming Equipment Manufacturers

When the First Circuit eventually does hear the case and rule, however, that probably won’t be the end of this dispute. Whichever side comes up short is likely to appeal to the US Supreme Court.

If the Supreme Court decides to hear the case, that will add more time to the final resolution. The NH Lottery may someday enjoy a return on its investment in this litigation. That won’t likely come for years, however.

Derek Helling Avatar
Written by
Derek Helling

Derek Helling is a freelance journalist who resides in Chicago. He is a 2013 graduate of the University of Iowa and covers the intersections of sports with business and the law.

View all posts by Derek Helling