Yet again, the DOJ has complicated its stance on the Wire Act. Earlier this month, the DOJ filed a memorandum in its ongoing litigation with the New Hampshire Lottery Commission, which stated that its January 15, 2019 Opinion did not address whether the Wire Act applies to state lotteries and their vendors.

In response to the judge’s order to clarify its interpretation of the Wire Act, on April 25 the DOJ filed a brief stating that “the New Hampshire Lottery Commission fails to demonstrate” that the Commission, its employees, and its vendors may be prosecuted under the Wire Act. Perhaps in an effort to avoid a decision in a circuit with unfavorable precedent and to avoid a judge who has expressed skepticism about its new interpretation, the DOJ has taken the position that the Lottery Commission lacks standing to challenge the statute based on the lack of a present credible threat of prosecution under the Act.

The DOJ argues that the Lottery Commission has failed to demonstrate that itself and its employees do not fall under the definition of “whoever” under the Wire Act, and has therefore failed to establish its entitlement to a declaratory judgment on the Act. The brief contains a rather lengthy discussion of the difference between states and state employees in regards to lawsuits against them. Similarly, the brief argues that the Lottery Commission has failed to demonstrate that its vendors are immune from prosecution under the Wire Act.

The DOJ’s brief does, however, reiterate that it will refrain from bringing prosecutions of state-lawful state lotteries and their vendors pending its review of the issue. We will continue to provide updates on this topic as updates arise.