No, The Wire Act Case is Not Over--But the Clock is Ticking
Mark Fischer, Attribution-ShareAlike 2.0 Generic

Contrary to reports that a recent filing in the Wire Act case is an indication that the case is “officially over,” the mandate from the United States Court of Appeals for the First Circuit is merely a procedural step.

The court ordered mandate issued on March 15 formalizes the January 20, 2021 judgement handed down by the court and dismisses the case without prejudice.

The March 15 mandate consists of a single sentence: “In accordance with the judgment of January 20, 2021, and pursuant to Federal Rule of Appellate Procedure 41(a), this constitutes the formal mandate of this Court.”

In a statement to pokerfuse, prominent igaming attorney Jeff Ifrah described the March 15 mandate as “just a normal routine matter that occurs once the court of appeals decision becomes final.” Ifrah went on to describe the filing akin to a “non event.”

What the Wire Act Mandate is Not

While signaling the formal end to the case before the First Circuit Appellate Court, the mandate issued this week is not an indication the DOJ under the Biden administration will not pursue the matter further by appealing the case to the US Supreme Court.

What it does mean though is that the clock is officially ticking on the DOJ.

Ifrah confirmed that once the mandate is issued, “the clock to appeal the matter further begins.”

Once a final judgement has been issued in a case, the losing party has 90 days to file a Petition for Certiorari, asking the Supreme Court of the United States (SCOTUS) to take up the matter.

With the formalization of the January 20, 2021 decision by the Court of Appeals in favor of the New Hampshire Lottery Commission et al, that clock began ticking on March 15, 2021, giving the DOJ until mid-June to ask SCOTUS to review the case.

Another thing that the mandate is not is an indication of the intent of the DOJ under the Biden Administration and new Attorney General Merrick Garland.

Federal Rule of Appellate Procedure 41 details the law for the voluntary dismissal of a case by either the plaintiff (the New Hampshire Lottery Commission) or by the Court. Not only is the mandate not a concession by the DOJ, but to date, there has been no official word from the agency on whether or not it plans to pursue the case further.

How the Wire Act Case Still Affects Interstate Online Poker

States that have legal regulated online poker are generally keen to allow the operators in their state to combine player pools with their operations in other states that have legal online poker, but while the laws in those states allow for shared liquidity, any such action must not violate federal law.

That is where the Wire Act case comes into play.

Even after the favorable decision on January 20 by the US Court of Appeals, the Pennsylvania Gaming Control Board still did not consider the matter settled.

In comments to pokerfuse, the PGCB cited the uncertainty around further appeals to the case as a reason for maintaining its cautious approach to allowing shared liquidity in Pennsylvania.

In Michigan, where a law that explicitly allows shared liquidity for online poker was signed into law by Governor Gretchen Whitmer in the final days of 2020, multijurisdictional poker must be consistent federal law in order to be allowed.

The Path for Interstate Online Poker Should Be Clear Soon

Despite the uncertainty that still exists around the federal government’s position on online poker that crosses state lines, the mandate issued earlier this week starts what seems to be the final countdown.

While the DOJ under Merrick Garland could issue a statement declaring that it does not intend to appeal the Wire Act case any further, given the quantity and severity of other issues it currently faces, it seems much more likely that the department will simply let the clock run out on this one.

With the 90-day clock ticking, a final determination should be clear before the end of Q2, and then we may see state gaming regulators in states like Pennsylvania, Michigan and West Virginia (where online poker is legal but is believed to be on the back burner until the shared liquidity issue is settled) begin to announce their intentions to join New Jersey, Nevada and Delaware in the Multi-State Internet Gaming Agreement (MSIGA).