Briefing Schedule Set in Wire Act Reversal Appeal

The United States Court of Appeals for the First Circuit has issued the briefing schedule for the ongoing appellate battle over the attempted re-activated application of the US’s 1961 Wire Act to virtually all form of interstate gambling in the US. The briefing schedule, announced by the court on October 3, is likely to push its decision on the US Department of Justice (DOJ) appeal well into 2020.

The setting of a briefing schedule is the next step in the appeals process, following the initial filing of the appeal in August by DOJ attorneys. In a matter of importance to the US’s future interstate online-poker plans, the DOJ is hoping to overturn the ruling in June by presiding US First Circuit District Judge Paul J. Barbadoro that a “reversal opinion” issued by the DOJ late last year was invalid.

Justice Scale And Wooden Brown Gavel On Usa FlagThe State of New Hampshire and its two state-run lottery entities, Neopollard Interactive LLC and Pollard Banknote Limited, were the first of dozens of US states negatively impacted by the reversal opinion to sue the DOJ. Though the New Hampshire plaintiffs sued to protect their existing interstate lottery operations, the laws being dissected in the battle also directly figure into the plans of US online-poker operators to enter into multistate liquidity-sharing compacts.

The released briefing schedule begin with a November 12 deadline for the DOJ and its chief officer, US Attorney General William P. Barr, to file initial briefs, essentially outlining its grounds for appeal. As the head of the DOJ, Barr remains present in the appeal in name only; he and his personal office are among several parties recently dropped from the service list for the case.

Following the DOJ’s initial filing, which is almost certain to occur on or just before November 12, counsel for the State of New Hampshire and the two state-run lottery entities will have a 30-day period to file their initial response. As the appellant, the DOJ will then get another 21-day window to file its own reply.

Those deadlines alone are enough to push the case into 2020, and that’s without even considering the motions, objects, and joint requests for delays that are likely to occur. As it is, the DOJ has already put its plans to enforce the reversal opinion on hold pending the outcome of the appeal. It’s also likely that the First Circuit Court of Appeals is just a legal way station. As originating Judge Barbadoro noted, he expected the matter to end up, eventually, before the US Supreme Court.

Besides USAG Barr, several other parties and amici (“friends of the court”) have been dropped from the legal service list for the appeal. Those include attorneys for the National Association of Convenience Stores and the Sheldon Adelson-funded Coalition to Stop Internet Gambling (CSIG) on the anti-online gambling side. Some of the lawyers representing parties that filed in support of New Hampshire that also have been dropped from active case service include counsels representing US states Michigan, Pennsylvania, and New Jersey, along with prominent online-gambling attorney A. Jeff Ifrah. In all of these instances, however, the interested third parties may seek to rejoin the appeal; one attorney representing New Jersey has already refiled the needed paperwork.

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