Samantha L. Haggerty practices in the areas of litigation and gaming law. Ms. Haggerty has represented gaming industry clients in the licensing and regulatory process, including online gaming and sports betting clients. She has assisted with internal investigations of gaming companies and advising clients with respect to compliance and control enhancements. She contributes regularly to the Duane Morris LLP Gaming Law Blog and serves as secretary to the New Jersey State Bar Association’s Casino Law Section.
On June 3, 2019, Judge Paul Barbadoro for the District of New Hampshire concluded in a 63-page Memorandum Opinion that the purview of the Wire Act is limited to sports wagering. The effect of the Court’s opinion, however, may be limited in states other than New Hampshire.
After determining that the plaintiffs in the case, the New Hampshire Lottery Commission and NeoPollard Interactive LLC, new Hampshire’s iLottery vendor, have standing to challenge the DOJ’s 2018 Wire Act Opinion because they have established a threat of imminent injury, the Court addresses whether the Wire Act applies beyond sports wagering.
On May 29, 2019, the Pennsylvania Gaming Control Board approved a Change of Control petition for the sale of Sands Bethlehem Casino Resort. Two days later, on May 31, 2019, Wind Creek Hospitality officially acquired the casino from Las Vegas Sands Corporation for $1.3 billion, as the transaction closed on Friday. The casino resort facility, which is located in the Lehigh Valley of Pennsylvania, will operate as Wind Creek Bethlehem, and will include amenities such as a 282-room AAA Four Diamond hotel, a 183,000 square foot casino floor featuring slots, table games, and electronic table games, numerous food and beverage outlets, a retail mail, and a multi-purpose event center.
The closing of the transaction comes after approximately fourteen months of regulatory review and, most recently, the PGCB’s approval of the transaction. Duane Morris represented Las Vegas Sands in the transaction, providing gaming regulatory and real estate guidance and assistance in other areas, including serving as co-counsel before the Board for Wind Creek Hospitality. Duane Morris attorneys who assisted on this matter include J. Scott Kramer, Greg Duffy, Frank DiGiacomo, Chris Soriano, and Adam Berger.
On May 29, 2019, at a special hearing convened for this purpose, the Pennsylvania Gaming Control Board approved a Change of Control Petition authorizing the transfer of the entirety of Las Vegas Sands Corporation’s interest in Sands Bethworks Gaming LLC’s to Wind Creek Hospitality, an instrumentality of the Poarch Band of Creek Indians. The Board’s Order, beyond approving the change in control, allows the casino facility to change its name to Wind Creek Bethlehem, reflecting the casino’s new ownership.
Subject to the Board’s conditions, Wind Creek Hospitality is able to acquire all of the interest in Sands, including its licenses, which include a Category 2 License, a Table Games Certificate, and Interactive Gaming Certificates. The Board’s decision comes after over a year of regulatory review.
Scott Kramer, Duane Morris, appeared for joint petitioner, Sands Bethworks Gaming LLC. Also, Duane Morris served as co-counsel before the Board for Wind Creek Hospitality.
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 legal landscape of the Wire Act continues to develop as the DOJ takes a step back from its updated Wire Act stance published earlier this year.
On January 15, 2019, the Department of Justice’s Office of Legal Counsel published a legal opinion that left the future of internet gaming in a state of uncertainty due to its conclusion that the transmission of any bet or wager – not just those on a sporting event or contest – across state lines, violates the Wire Act. The 2019 Opinion reflects a change in the DOJ’s position since 2011, where in an opinion it concluded that the Wire Act only applied to sports gambling. As a result of the 2011 Opinion, several states launched or moved forward with intrastate online lottery, casino gaming and poker.
The DOJ is currently refraining from prosecuting violations of the Wire Act in reliance on the 2011 Opinion until June 14, 2019. Following the release of the 2019 Opinion, however, the New Hampshire Lottery Commission initiated litigation against the DOJ in the United States District Court for the District of New Hampshire, challenging the legality of the 2011 Opinion. Various non-parties have filed amicus briefs in the case, including the State of New Jersey.
On April 8, 2019, the DOJ filed a declaration in the litigation, which includes as an exhibit a memorandum entitled “Notice Regarding the Applicability of the Wire Act, 18 U.S.C. [Section] 1084, to State Lotteries and their Vendors,” from Deputy Attorney General Rod Rosenstein. Continue reading State Lotteries Can Breathe a Sigh of Relief — For Now
Last week, the United States District Court for the Eastern District of Pennsylvania, Judge Jeffrey Schmehl, granted the Motions to Dismiss of Sands Bethlehem Casino Resort and other Pennsylvania casinos, which were alleged to have engaged in a retaliatory boycott impacting a mixed martial arts (MMA) promoter’s events. Sands Bethlehem was alleged to have engaged in a boycott of plaintiff’s events as a retaliation for a prior lawsuit promoter Ryan Kerwin filed against Valley Forge Casino and Harrah’s in Chester, Pennsylvania.
Sands, Parx and Sugarhouse Casinos and their respective event directors faced allegations that certain emails cited in the Complaint established a conspiracy. The plaintiff alleged that the defendants’ “horizontal group boycott” would put the plaintiff promoter out-of-business. The Court found the emails, at best, demonstrated nothing more than unilateral action by the individual casinos. There was no “plus factor” in the complaint’s allegation that would have shown a motive, actions that were against the individual casinos’ economic interests or, evidence that implied a traditional conspiracy. In the Sands instance, it was alleged that Sands actually emailed with plaintiff offering to contract for MMA events but plaintiff would not agree to Sands’ “inflated terms”.
Judge Schmehl found that nowhere in the Amended Complaint did there appear evidence of “a conspiracy that supports an inference of collusion.” The Court’s holding that plaintiff failed to plead an unlawful agreement precluded an analysis of the other elements of the Section I Sherman Act claim.
The Court also dismissed claims that the defendant casinos (and Harrah’s and Valley Forge) were collective monopolists by keeping essential facilities from the MMA promoter. The plaintiff’s own pleadings that MMA events were staged elsewhere in Pennsylvania, other than the casinos’ event centers, convinced the Court that defendants’ properties were not “essential facilities”.
Sands was represented by Duane Morris lawyers – Manly Parks and Sarah O’Laughlin Kulik.
Pennsylvania State Police seized 414 illegal gaming machines in southwestern Pennsylvania in 2018.
Currently, people can gamble at state-regulated casinos, through the Pennsylvania Lottery, for horse races and, after the expansion of the law last year, online and at some truck stops. But the changes didn’t include gaming machines in bars and restaurants. In those venues, if a game is mostly chance, like a slot machine, it’s illegal. But if it requires skill, like poker, it’s legal.
To read the full text of this article, please visit the WESA 90.5 website.
On January 14, 2019, the U.S. Department of Justice published a legal opinion that may restrict online gambling. The opinion, dated November 2, 2018, (although only now published) reconsidered the DOJ’s 2011 opinion that declared the Wire Act (18 U.S.C. § 1084) only applied to sports gambling. After the release of the 2011 opinion, several states, including New Jersey, Delaware and Pennsylvania, launched or moved forward with intrastate online lottery, casino gaming and poker. The new opinion, however, somewhat clouds the landscape regarding these operations. Online gaming businesses would be well advised to quickly determine whether their operations comply with the DOJ’s new reading.
The reconsideration stems from one phrase in the Wire Act: “on any sporting event or contest.” In 2011, the DOJ opined that the Wire Act was ambiguous and “that the more logical result” was that the phrase “on any sporting event or contest” applied to the entirety of the Wire Act, thereby prohibiting only the transmission of “bets or wagers” or “information assisting in the placing of bets or wagers” across state lines, if the bet or wager were on a sporting event. This logic follows in part from the Act’s legislative history, which reveals that Congress’ overriding goal in passing the Wire Act was to stop the use of wire communications by organized crime for illegal sports gambling. In 2018, the Supreme Court of the United States, in Murphy v. Nat’l Collegiate Athletic Ass’n—a decision that paved the way for states to authorize sports betting, in dicta—noted Congress’ original intent in characterizing a general federal approach to gambling: Operating a gambling business violates federal law only if that conduct is illegal under state or local law.
On January 9, 2019, the New Jersey Division of Gaming Enforcement (DGE) published a set of regulations related to sports wagering and online sports wagering for public comment. The proposed rules include readoptions, amendments, and proposed repeals of the emergency regulations that were previously adopted on June 13, 2018. The proposed rules can be found at: https://www.nj.gov/oag/ge/proposed_rules.htm. The DGE is accepting written comments on the proposed rules until March 8, 2019, which can be submitted either via mail addressed to Charles F. Kimmel, Deputy Attorney General, or electronically to firstname.lastname@example.org.