United States District Court, D. New Hampshire
New Hampshire Lottery Commission, et al.
William Barr, in his official capacity as Attorney General of the United States of America, et al.
J. Barbadoro United States District Judge
association of businesses involved in the internet gambling
industry has filed an emergency motion to intervene in an
action challenging a recent Office of Legal Counsel
(“OLC”) reinterpretation of the Wire Act, which
criminalizes certain gambling activities that involve the use
of interstate wires. The trade association seeks to join two
consolidated cases, one filed by the New Hampshire Lottery
Commission (“Lottery Commission”), and the other
by two businesses that contract with the Lottery Commission.
Because the association's interests will be adequately
represented by the present parties, I deny the motion.
relevant portion of the Wire Act of 1961, 18 U.S.C. §
Whoever being engaged in the business of betting or wagering
knowingly uses a wire communication facility for the
transmission in interstate or foreign commerce of bets or
wagers or information assisting in the placing of bets or
wagers on any sporting event or contest, or for the
transmission of a wire communication which entitles the
recipient to receive money or credit as a result of bets or
wagers, or for information assisting in the placing of bets
or wagers, shall be fined under this title or imprisoned not
more than two years, or both. 18 U.S.C. § 1084(a).
2011, the Office of Legal Counsel announced that
“interstate transmissions of wire communications that
do not relate to ‘a sporting event or contest,'
fall outside the reach of the Wire Act.” See Virginia
A. Seitz, Whether Proposals by Illinois and New York to Use
the Internet and Out-of-State Transaction Processors to Sell
Lottery Tickets to In-State Adults Violate the Wire Act,
Memorandum Opinion for the Assistant Attorney General,
Criminal Division, U.S. Dept. Just. 1 (Sept. 20, 2011)
(quoting 18 U.S.C. § 1084(a)).
2018, however, the OLC revisited that interpretation and
determined that “the prohibitions of 18 U.S.C. §
1084(a) are not uniformly limited to gambling on sporting
events or contests.” See Steven A. Engel, Reconsidering
Whether the Wire Act Applies to Non-Sports Gambling,
Memorandum Opinion for the Acting Assistant Attorney General,
Criminal Division, U.S. Dept. Just. 23 (Nov. 2, 2018).
January 15, 2019, the Deputy Attorney General instructed
federal prosecutors to “refrain from applying Section
1084(a) in criminal or civil actions to persons engaged in
conduct violating the Wire Act in reliance on the 2011 OLC
opinion prior to the date of this memorandum, and for 90 days
thereafter.” See Applicability of the Wire Act, 18
U.S.C. § 1084(a), to Non-Sports Gambling, U.S. Dept.
Just. (Jan. 15, 2019), Doc. No. 2-6. On February 28, the
Deputy Attorney General extended that window through June 14,
2019. See Additional Directive Regarding the Applicability of
the Wire Act, 18 U.S.C. § 1084(a), to Non-Sports
Gambling, U.S. Dept. Just. (Feb. 28, 2019), Doc. No. 23-1.
Lottery Commission filed a complaint and a concurrent motion
for summary judgment on February 15, 2019. The Commission
seeks a declaratory judgment and an order “permanently
enjoining the defendants from enforcing the 2018
Opinion.” See Doc. No. 21-1 at 26. Later that day,
NeoPollard Interactive LLC, which “provides the
technological infrastructure for New Hampshire's iLottery
system, ” and its 50% owner, Pollard Banknote LTD
(collectively “NeoPollard”) also filed a
complaint and a concurrent motion for summary judgment. See
Doc. No. 5-1 at 8. NeoPollard seeks a judgment declaring that
the Wire Act is limited to “bets or wagers . . . on a
sporting event or contest.” See Doc. No. 5-1 at 31. I
consolidated the NeoPollard action with the Lottery
Commission action on February 22, 2019. See Doc. No. 9.
February 25, iDevelopment and Economic Association (iDEA)
filed an emergency motion to intervene in this consolidated
action. The association “represents the interests of
nearly two dozen member-organizations from virtually every
sector of the iGaming community, including operations,
development, supply, technology, marketing and payment
processing.” Doc. No. 12-1 at 7. The proposed
intervenor complaint specifies the New Hampshire-based
activities of two of iDEA's members: “Worldplay
Gaming Solutions and Paysafe Group provide payment-related
services in connection with New Hampshire's iLottery
operation.” See Doc. No. 12-2 at ¶ 14. The trade
association asks to intervene “for the sake of
protecting its members' interests and advancing separate
and distinct legal rights and interests of private parties
operating outside the specific context of state
lotteries.” Doc. No. 12-1 at 7. Neither the
consolidated plaintiffs nor the defendants object to
Rule of Civil Procedure 24(a) controls intervention as of
right. That rule provides:
On timely motion, the court must permit anyone to intervene
who: (1) is given an unconditional right to intervene by a
federal statute; or (2) claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability ...