A. Jeff Ifrah Founding Member

/ P (202) 524-4142

LinkedIn connect on LinkedIn / Twitter @jifrah

  • Jeff Ifrah: How a Good Litigator Makes a Difference

    Video 1 of 3

  • Jeff Ifrah’s Internet Gaming Predictions for 2014

    Video 2 of 3

  • Jeff Ifrah: Client-focused Attorneys for Critical Matters

    Video 3 of 3

Jeff Ifrah’s legal skills and record of success have earned him international recognition as a white-collar criminal defense lawyer and litigator. He is an advocate keenly focused on delivering results for his clients – on understanding the problems they face and developing innovative strategies to resolve them.

But outside the courtroom and the conference room, Jeff is equally devoted to a more personal mission. He is dedicated to changing the way clients think about their lawyer. That is why Jeff puts a premium on communication and responsiveness, 24 hours a day, seven days a week, by phone or e-mail. That is why he invests himself in understanding as much as he can about them and about his client’s businesses. That is why he strives to craft out-of-the-box strategies for their cases.

As important as client service is to Jeff, he understands that it would lose its luster if he did not also deliver results. Success upon success in complex, high-stakes cases have earned Jeff an international reputation, particularly for his work representing companies and individuals involved in Internet businesses. Experience and know-how make Jeff a formidable opponent.

Jeff cut his teeth as a trial lawyer and officer in the U.S. Army’s Judge Advocate General’s Corps and as trial counsel to the U.S. Army Communications-Electronics Command at Fort Monmouth. He then gained invaluable experience as a special assistant U.S. attorney in the U.S. Attorney’s office in New Jersey.

He went on to become of counsel to the global law firm Paul Hastings and then a shareholder in the litigation department of another global firm, Greenberg Traurig. Often litigating cases against the federal government, he achieved a string of victories in cases involving criminal and civil antitrust laws, securities laws and the Civil False Claims Act. He defended some of the most well-known businesses in the country in industries such as pharmaceuticals, healthcare and technology.

Jeff is widely recognized for his legal excellence. Chambers USA has recognized Jeff for five years in a row as one of America’s leading lawyers for litigation in the areas of White Collar Crime and Government Investigations, and he was recognized in 2015 as a leading lawyer for Gaming & Licensing. The authoritative guide notes Jeff’s dedication to “getting a speedy resolution of contentious matters through application of good commercial sense and pragmatic legal thinking” and his “honest and hard-working” approach to matters. The previous co-chair of two key ABA white collar subcommittees, Jeff has also been recognized by LexisNexis as an expert in healthcare and securities fraud. Nightingale’s Healthcare News named him one of 12 outstanding fraud and compliance lawyers in the United States.

Jeff is also active in the publishing arena. He currently serves on the editorial board of the World Online Gambling Law Report. A leading national authority in federal sentencing laws, Jeff is co-author of Federal Sentencing for Business Crimes, the only comprehensive treatise on federal sentencing in the context of business and white-collar crimes. The two-volume treatise, published by international legal publisher LexisNexis, is a key resource relied on by prosecutors and defense attorneys throughout the United States.


Awards + Recognition

  • Listed, Chambers USA - Gaming & Licensing (Nationwide), 2015
  • Listed, Chambers USA - White Collar Crime and Government Investigations (Washington, DC), 2011 - 2015
  • Local Litigation Star, Benchmark Litigation - White Collar Crime (Washington, DC), 2015
  • Named to Gaming Intelligence Magazine's Hot 50 List for 2012
  • Listed, Nightingale's Healthcare News - Outstanding Fraud and Compliance Lawyer, May 2006
  • Listed, "Expert News Source" in Corporate Governance and Securities, and Health Care/Pharmaceutical, LexisNexis
  • Meritorious Service Award, U.S. Army
  • Holds DOD Top Secret Clearance

Professional + Community

  • Member, ABA Criminal Justice Section
  • Member, American Health Lawyers Association
  • Member, ABA Business Law Section
  • Member, ABA Procurement Law Section
  • Member, International Masters of Gaming Law
  • Editorial Board Member, World Online Gambling Law Report
Jeff Ifrah, Panelist, "Current and Pending Legislation for Fantasy Sports," Daily Fantasy Sports Expo, Miami Beach Convention Center, Miami, FLAugust 6, 2015
Jeff Ifrah, Speaker, "Committee on Casinos: Self-Regulation v. Regulatory Oversight," National Council of Legislators from Gaming States, 2015 Summer Conference, Atlantic City, NJJune 12, 2015
"Rolling The Dice On Class Actions Against Gaming Cos.," Law360May 19, 2015
Jeff Ifrah, Moderator, "Mock Trial: United States v. Ginger McKenna," iGNA 2015, Planet Hollywood Resort & Casino in Las Vegas, NevadaApril 15, 2015
Jeff Ifrah, Moderator, "Sportsbetting: Understanding The Evolving Stance of Sports Leagues on Legalization of Sportsbetting," Global iGaming Summit & Expo 2015, Hyatt Regency, San Francisco, CAApril 21, 2015
Jeff Ifrah, Moderator, "Bad Actors: The Impact and Enforcement of Illegal iGaming Sites" G2E 2014, Sands Expo & Convention Center in Las Vegas, NevadaSeptember 29, 2014
Jeff Ifrah, Speaker, "Lessons Learned: Takeaways from the Launch of iGaming in US Jurisdictions" 19th Annual East Coast Gaming Congress & iGaming Institute, Borgata Hotel & Casino in Atlantic City, NJMay 19, 2014
"The Wild World of Witnesses: When Good Witnesses Go Bad," WMACCA Litigation Forum, McLean, VAJune 26, 2014
"The Historic US Multi-State Internet Gaming Agreement," World Online Gambling Law ReportMarch 2014
Jeff Ifrah, Moderator, "As Close As You Ever Want to Get to a Federally Prosecuted Sports Betting Trial," iGNA 2014, Planet Hollywood Resort & Casino in Las Vegas, NevadaMarch 21, 2014
Jeff Ifrah, Speaker, "J.P. Morgan Global High Yield & Leveraged Finance Conference" The Loews Hotel in Miami, FLFebruary 25, 2014
Jeff Ifrah, Speaker, "Defending the White Collar Case" Pennsylvania Bar Institute, The CLE Conference Center in Philadelphia, PAFebruary 18, 2014
"The Importance of Liquidity for the US States Offering i-Poker," World Online Gambling ReportNovember 2013
Jeff Ifrah, Moderator, "Liquidity as the Main Driver for Interstate Gaming: View from the Poker Industry" WrB USA, The Sheraton University City Hotel in Philadelphia, PAOctober 22, 2013
"The Law According to NJ," Gaming IntelligenceSeptember 2013
Jeff Ifrah, Moderator, "The Great Regulation Debate" EGR US Power Summit, The Montage in Laguna Beach, CASeptember 10, 2013
Jeff Ifrah, Speaker, "CFTC Liability for Affiliate Marketers," Affiliate East, Philadelphia Convention Center in Philadelphia, PAAugust 18, 2013
"Wiretaps Likely To Become More Popular," Law360July 1, 2013
Jeff Ifrah, Speaker; Sarah Coffey, Moderator, "Home Truths: New Jersey’s Path to I-Gaming Regulation and its Future in the US Online Gaming Market" EGR North America Panel, The Pier Shops at Caesars in Atlantic City, NJMay 20, 2013
Jeff Ifrah, Moderator, "What Are the Odds? The Future of U.S. Criminal Law Enforcement for Online Gaming and Online Piracy Against Offshore Companies and Individuals," ABA 27th Annual National Institute on White Collar Crime, The Cosmopolitan of Las Vegas, Las Vegas, NVMarch 6-8, 2013
"The future of egaming: Bet on New Jersey," EGR North AmericaMarch 2013
"A Mixed Bag: Will the Justice Department’s Recent Attempts to Prosecute Non-Resident Defendants Inform Future Charging Decisions?," ABA White Collar Crime 2013March 6, 2013
"Opinion: Why the NFL fears legalized sports betting," NorthJersey.comFebruary 13, 2013
Jeff Ifrah, Panelist, "Sentencing – Reentry – Juvenile Justice – Legal Education" ABA Fifth Annual Fall Institute, Washington Court Hotel, Washington, DCOctober 25-26, 2012
Jeff Ifrah Panelist, "Sentencing, Prison Preparation, and Collateral Consequences" NACDL White Collar Criminal Defense College, Gulfport, FLMarch 19-20, 2012
"Five Years Later, Skilling’s Sentence is Still Up in the Air," Houston ChronicleOctober 16, 2011
"The Big Freeze," eGaming ReviewJune 6, 2011
"The Momentous Law for US Poker," iGaming Business Magazine May/June 2011
Jeff Ifrah Panelist, "Internet Gaming Is Coming: Is Indian Country Ready" Sovereignty Symposium XXIV, Oklahoma City, OklahomaJune 1, 2011
Jeff Ifrah Panelist, Spring Conference, "iGaming: Is It Coming and How Should It Be Regulated If It Does?" International Masters of Gaming LawMay 24, 2011
Jeff Ifrah Moderator, "Corporate Plea Negotiations and Sentencing" National Seminar on the Federal Sentencing Guidelines, Orlando, FloridaMay 5, 2011
"DC Law Sets Precedent," eGaming Review Magazine April 26, 2011
Jeff Ifrah, Speaker, "FTC Prosecution of Affiliates for Advertising Claims," Affiliate Summit West, Las Vegas, NevadaJanuary 11, 2011
"Five Important Steps to Take If the Government Comes Knocking," from Jeff Ifrah’s presentation at Affiliate Summit West in Las Vegas on FTC Prosecution of Affiliates for Advertising ClaimsJanuary 11, 2011
"Commentary: Banned from the Internet," The National Law Journal October 13, 2010
Jeff Ifrah, Webinar Presenter, "When the Government Comes Knocking – UIGEA Enforcement," Bola Verde Media GroupOctober 12, 2010
Jeff Ifrah, Speaker, "An Insight into America’s iGaming Regulation," Budapest Affiliate SummitOctober 9, 2010
Jeff Ifrah, Webinar Presenter, "When the Government Comes Knocking – Assessing the Risk of Prosecution," Bola Verde Media GroupOctober 5, 2010
"Circuits Split Over Securities Fraud Sentencing," The National Law JournalJuly 19, 2010
Jeff Ifrah Moderator, "Corporate Plea Negotiations and Sentencing" Nineteenth Annual National Seminar on the Federal Sentencing Guidelines, St. Petersburg, FloridaMay 19, 2010
Jeff Ifrah Moderator, "Corporate Plea Negotiations and Sentencing" Nineteenth Annual National Seminar on the Federal Sentencing Guidelines, St. Petersburg, FloridaMay 13, 2010
Jeff Ifrah Co-Author, "Federal Sentencing For Business Crimes," LexisNexis2009
"Sentencing Based on Loss," The National Law Journal April 28, 2008
"I Tell Them, I Tell Them Not: Deciding When and How to Disclose False Claims Act Lawsuits to Shareholders," Association of Corporate Counsel DocketJanuary/February 2008
Jeff Ifrah, Speaker, "Quality of Care and the False Claims Act" AHCA-NCAL-MECF 58th Annual Convention & Exposition, Boston, MassachusettsOctober 7-10, 2007
"Board Procedures Involving Fraud Counterclaims Against Contractors," Briefing Papers, No. 7-10September 2007
Jeff Ifrah Moderator, "Emergent Integrity and Enforcement Issues: What Should Contractors Worry about Today and Tomorrow?" The Federal Circuit Bar Association’s 9th Annual Bench & Bar Conference, Cambridge, MarylandJune 27-30, 2007
Jeff Ifrah, Speaker, "The Forfeiture Claims Act: Responding to the Government’s Latest Weapon" The Federal Circuit Bar Association’s 9th Annual Bench & Bar Conference, Cambridge, Maryland June 27-30, 2007
Jeff Ifrah, Speaker, "Sentencing Appeals In The Post-Booker Era" Sixteenth Annual National Seminar on the Federal Sentencing Guidelines (sponsored by the Federal Bar Association and the United States Sentencing Commission), Salt Lake City, UtahMay 23-25, 2007
"Hard Hits: Upward departures from the Sentencing Guidelines seem immune from scrutiny when national security is invoked," Legal TimesApril 9, 2007
"Circuit Split with False Claims Case" The National Law Journal November 1, 2004
"The Viability of Expanding Quality of Care Cases Under the Federal False Claims Act" The Health Lawyer, Vol. 16, No. 5June 2004
Jeff Ifrah, Speaker, "Health Care Fraud Offenses" Thirteenth Annual National Seminar on the Federal Sentencing Guidelines (sponsored by the Federal Bar Association and the United States Sentencing Commission), Miami Beach, FloridaMay 19-21, 2004
Jeff Ifrah, Speaker, "Understanding the Increased Role of PBMs in the Drug Benefit" The Pharma Industry Forum on Medical Modernization (sponsored by American Conference Institute), Washington, D.C.April 19-20, 2004
Jeff Ifrah, Speaker, "Quality of Care and the False Claims Act – Where Has the Government Been So Far?" 5th Annual Conference on Emerging Issues in Healthcare (sponsored by American Bar Association), La Jolla, CaliforniaFebruary 18-22, 2004
Jeff Ifrah, Speaker, "Proposed Anti-Money Laundering Regulations for Hedge Funds" Old Greenwich, ConnecticutMay 21, 2003
Jeff Ifrah, Speaker, "Applying the Patriot Act to Real Estate Transactions and Investments – What You Need to Know to Be Informed" Investment Program Association’s Fall Issues Conference, Washington, D.C.November 8, 2002
Jeff Ifrah, Speaker, "Applying the Patriot Act to Real Estate Transactions and Investments" Commercial Real Estate Seminar, Atlanta, GeorgiaNovember 7, 2002

Upholding the Fourth Amendment in the Digital Age

As Jae Shik Kim was departing the U.S. from Los Angeles International Airport, a Department of Homeland Security agent confiscated his personal laptop. Following the seizure, and a review of data it found on the laptop, the Department of Justice (DOJ) alleged that our client was involved in a conspiracy to evade U.S. trade restrictions on Iran. Our team acted quickly and strategically to clear Mr. Kim and uphold the Fourth Amendment, which prohibits unwarranted searches and seizures.

We filed a motion to suppress any supposed evidence gleaned from the laptop on the grounds that the seizure was illegal. The DOJ argued that a laptop was similar to any other container that could be searched at the border without a warrant. The judge rejected prosecutors’ arguments. As a result of our successful motion, the government was forced to abandon its case and we secured a victory against the DOJ. In this matter, it was shown that the government was searching for evidence of a crime committed years earlier and there was no suspicion of current illegal activity.

With the judge’s ruling, a strong statement has been sent to the government. This type of intrusion concerning our personal electronic devices without the proper documentation will not be tolerated. Further, the Fourth Amendment has been upheld, and the government has been warned against attempting to use its power at U.S. borders to circumvent basic rights.

(United States of America vs. Jae Shik Kim, Karham Eng. Corp., Crim. Action No. 13-0100)


Defense of Retaliatory Discharge Case Results in Precedent-Setting Ruling

Ifrah’s defense of its clients, Torres Advanced Enterprise Solutions LLC (“TAES”) and Scott Torres, who were charged in a retaliatory discharge case, not only turned out to be a victory for the defendants, but it was also a resounding victory for employers and the court system. The ruling, made in the United States District Court for the District of Columbia, set important precedent regarding federal pre-emption in worker’s compensation issues overseas and retaliatory discharge charges.

Two former employees of Ifrah’s clients claimed that they were improperly discharged in retaliation for filing a workers’ compensation claim under the Defense Base Act (“DBA”) and Longshore and Harbor Workers Compensation Act. They were working for TAES at Forward Operating Base Shield in Iraq when they were discharged.

Ifrah argued that the DBA provided the exclusive remedy for the plaintiffs’ causes of action and otherwise preempted their case. In a 26-page opinion, the judge dismissed all four counts of the First-Amended Complaint, agreeing with Ifrah’s argument. She further held that plaintiffs’ remaining common-law causes of action, including breach of contract, were preempted under the DBA. Specifically, she noted in her opinion that federal courts across the country have found that the DBA expressly preempts other remedies state law affords to similarly-situated plaintiffs. Accordingly, the doctrine of conflict preemption barred plaintiffs’ common-law claims and mandated their dismissal.

Despite the lack of clear precedent on the issue, the opinion clearly establishes as the law of Washington, D.C. that employees subject to a federal workers’ compensation plan must exhaust their administrative remedies first before filing an action in court. The decision will result in the saving of time and expenses related to litigating complex retaliatory discharge claims that can otherwise be resolved more efficiently in the administrative context.

(Sickle et al v. TorresAdvanced Enterprise Solutions, LLC et al., Case No. 1:11-cv-02224 (U.S. District Court, District of Columbia))


Domain Name Seizure Reversed, Favorable Settlement Gained

Ifrah Law’s client, a Russian corporation, was charged in the United States District Court
for the District of Columbia with violating the Commodity Futures Trading Commission
(CFTC) Act.

The company is comprised of a group of financial and investment companies that provide
online trading services. The government alleged that the defendants operated a foreign
currency exchange business over the Internet, which served U.S. customers but did not
register with the CFTC, as is required by law. The government was seeking $280,000 in
potential fines and the worldwide shutdown of the lucrative web site.

After the government obtained a default judgment against the defendant, they turned to
Ifrah Law. With our representation and expertise in financial matters, the case was settled
for a small fine and the web site remains operable outside of the United States.

(CFTC v. InstaForex, Case No. 1:11-cv-00188 (U.S. District Court, District of Columbia))


Protesting Procurement Irregularities to Keep a Client in Competition

A client contractor participated in a procurement competition over a multi-award contract with the Department of the Army that was valued at almost half a billion dollars. After submitting a proposal, our client (along with other bidders) was excluded from the competition because of a deficiency in a proposed labor rate. The other excluded parties protested to the Government Accountability Office, and the Army permitted five of the protesting parties to rejoin the bidding process.

With just a week left before the final proposal revisions were due, our client asked us for help. We filed a U.S. Court of Federal Claims protest asking to reverse the exclusion based on irregularities in the procurement process. We also asked for an injunction to prevent the bidding process from ending.

As a result of our filing and subsequent negotiations with the Department of Justice, our client was permitted to rejoin the bidding and to submit a revised bid.

(Platinum Business Corporation, et al. v. United States, 1:12-cv-00001, Court of Federal Claims, Bid Protest (2012))


Obtaining a Reversal of Conviction and Sentence Reduction for Securities Fraud

Ifrah Law represented a former executive, Stuart Wolff, who was indicted for securities fraud. During a six-year battle with the U.S. Attorney’s Office for the Central District of California, the trial and appellate teams worked together
to secure a reversal of the client’s conviction and a new trial.

In the months leading up to the second trial, the defense team, which included Jeff Ifrah of Ifrah Law, leveraged irregularities with discovery to obtain dismissal of all charges related to PricewaterhouseCoopers, Homestore’s former accounting firm. As a result, the sentence on remand was reduced by 70 percent relative to the sentence imposed after the first trial.

Jeff Ifrah was the only attorney Mr. Wolff retained from the beginning of the case to its conclusion. Mr. Ifrah began managing the legal team after the first trial, continued through the appellate process, and also in the team’s preparation for trial on remand.

Jeff Ifrah was responsible for formulating and executing the strategy that resulted in the 70 percent reduction of Mr. Wolff’s sentence.

(U.S. v. Wolff, Case No. 2:05-cr-00398 (U.S. District Court, Central District of California))


Turning the Tables on Fraudulent Direct Marketing Tactics

When an Internet retailer of consumer products discovered fraud by the direct marketing agency it had retained to promote its products online, Ifrah PLLC helped the retailer turn the tables.

Although the direct marketing agency, or affiliate network, agreed to craft a marketing campaign that complied with all advertising and consumer protection laws, it failed to do so. The network drove millions of leads to the retailer, a substantial number of those turned out to be from webpages containing claims the retailer did not approve.

This resulted in a substantial loss of advertising dollars for our client, the possible loss of good will among its customers, and exposure to state and federal consumer protection claims.

After we advised the retailer to stop paying the affiliate network, it filed a breach-of-contract lawsuit in federal court in California seeking $2.5 million in damages. We responded by filing a countersuit for the non-compliant webpages.

In our analysis of the lawsuit, we discovered a legal flaw in the agency’s case that would require the court to dismiss it. Rather than immediately attempt to litigate this issue, we contacted the agency’s lawyers and gave them several opportunities to withdraw the case voluntarily.

When the agency ignored our invitation, we filed a motion to dismiss its lawsuit based on the flawed filings. The judge not only granted our motion, but he also chastised the agency for ignoring our invitations to resolve this without involving the court.

Because our litigation of the motion unnecessarily required our client to incur legal fees, we then filed a request that the judge order the agency to pay our client’s fees. Just as vigorously as it had fought our first motion, the agency fought that request. The judge awarded our client legal fees not only for the motion to dismiss, but also for having to fight its fee request.

In the end, we resolved the dispute in an out-of-court settlement on terms favorable to our client.


Delivering a One-Two Punch to Simultaneous Gambling-Loss Recovery Cases

A plaintiff’s law firm brought two gambling-loss recovery cases against our client, PokerStars, in the United States District Court for the Southern District of Illinois. The first case addressed alleged gambling losses sustained as a result of playing on the Full Tilt Poker (FTP) website. Our client was implicated in the case through the addition of Rational FT, which the plaintiff alleged acquired the assets of FTP. The second case dealt exclusively with alleged gambling losses sustained while playing on the PokerStars websites.

Both cases were instituted by a third-party – the mothers of players who allegedly suffered these losses. And in both instances, the courts ruled in favor of our clients after Ifrah won numerous motions that caused the defendants to amend their ultimately unsuccessful complaints.

After nearly three years, the judge brought finality to these proceedings by granting Ifrah’s last-filed motions to dismiss (which had been pending since mid-2014) and ordering the dismissal of both cases with prejudice. The judge’s orders in both cases were nearly identical.

(Sonnenberg v. Oldford Group, Ltd., Rational Entertainment Enterprises, Ltd., Case No. 3:13-cv-00344-DRH (U.S. District Court Southern District of Illinois))

(Fahrner v. Bitar et al, Case No. 3:13-cv-00227 (U.S. District Court Southern District of Illinois))


DOJ uses White Collar Prosecution for Election-Season Rabble Rousing


Beating their chests and breathing fire to rouse the polity, the Department of Justice recently came out with an announcement as earth shattering as the sun rising. The DOJ proclaimed it has adopted new policies to prioritize the prosecution of individuals for white-collar crime.

Deputy Attorney General, Sally Q. Yates, was quoted in the New York Times: “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”

What’s the hoped-for public response? Probably something like this: “And the crowd goes wild. Finally, after years of corporate executives sporting Teflon and sliding past investigators, the government is going to put its fist down and make the wrongly rich execs pay for their nefarious acts of fraud, insider trading, embezzling, racketeering, and tax evasion! “

But things look a little different in the actual world of white-collar criminal investigations and defense. In fact, prosecutors from the Southern District of New York and across the country are zealously prosecuting employees accused of white-collar offenses, and their companies are never shy about providing the backup data regulators request.. What’s more, convicted offenders are often subject to penalties far exceeding their crimes, as U.S. District Judge Jed Rakoff noted in the 2012 sentencing of Rajat Gupta.

The fact of the matter is that the DOJ doesn’t need to announce a new policy to go after individuals for white-collar crimes. The reality on the ground is we deal with employees being investigated and indicted all the time.

So why did Washington make the announcement? It sounds more like a PR stunt than anything else. Perhaps the Administration is gearing up for the next election cycle, which includes some obvious key elections. The DOJ wants to have a strong response to public outcries for accountability at the opportune time of impending regime change. In prior election cycles, administrations have taken some sort of hard stance on crime and punishment, whether it is increasing sentencing guidelines or messaging prosecutors about white-collar plea agreements.

From our viewpoint, it’s a little hard to take the DOJ’s new policy announcement at face value. We don’t see any recent motivation (outside PR). However, it’s also true that the wheels of Justice move slowly and this may just be a reflection from public dissatisfaction after the 2008 economic crisis, which saw corporations, but few Wall Street execs, held accountable. Regardless, we see the DOJ’s announcement much ado about nothing.


The post DOJ uses White Collar Prosecution for Election-Season Rabble Rousing appeared first on Crime In The Suites.

Read More

Broken Promises: A Glimpse at the Dark Side of Crowdfunding

Vector crowdfunding concept in flat style

The fact is that social media has connected us to each other in ways which seemed unimaginable only a few decades ago.  Take for example the progression of social activism through online fundraising.  Over the course of two short months the ALS Ice Bucket Challenge (“IBC”) went viral with millions of videos being posted by people drenching themselves in ice water in order to spread awareness and raise money for the research and treatment of ALS.  To date, the total amount of donations made to the ALS Association through the IBC is an unprecedented $114 million.  The Association’s FAQs webpage regarding the IBC indicates that this amount is almost five times its annual overall budget.

The ALS Ice Bucket Challenge is also a good example of the online phenomenon of crowdfunding, where numerous individuals and groups pitch in to fund a project, cause or idea.  Simply put, crowdfunding is fundraising through social media.  There are several popular crowdfunding websites, however one of the most well-known sites is, which was launched in 2009, and boasts the facilitation of $1 billion in contributions by seven million backers who have so far funded 69,000 “creative projects” through the site.  However, as is common when dealing with new technology, there are often unanticipated legal aspects of such innovation which can be problematic.

Earlier this year, the first crowdfunding consumer protection lawsuit was filed in the state of Washington (State of Washington v. Altius Management, LLC; Edward J. Polchlopek III (No. 14-2-12425-SEA)).  In late 2012, defendant Ed Nash, as he is known, and his company Altius Management, were successfully funded through a Kickstarter campaign to produce a limited-edition playing card game called Asylum.  According to the campaign page, backers exceeded Nash’s goal of raising $15,000, giving more than $25,000 in total for the promise of the card game to be made.  In addition, many of those who funded Nash’s campaign expected certain perks for contributing, referred to by Kickstarter as “rewards,” as was detailed in his campaign’s backer pledge amounts, which included multiple card decks and custom artwork according to varying contribution levels.  However, two years later the card game has not been produced, backers have received no rewards or refunds and there has been no communication from Nash regarding the status of the Asylum project since July 2013.

Each project “creator” who signs up their campaign on Kickstarter is required to agree to the site’s Terms of Use, which includes language stating that the creator must fulfill all rewards promised to backers or issue refunds.  If the creator fails to deliver on both of these fronts, Kickstarter advises them that they may be open to litigation by backers.  Now, the Washington State Attorney General’s Office wants Nash to pay for breaking his promise to these backers under the state’s Consumer Protection Act (“CPA”) [RCW Chapter 19.86].  The filed lawsuit seeks up to $2,000 per violation of the CPA in civil penalties for restitution to the backers, and also includes all state costs and attorneys fees.

With this being the first case of its kind, there is no precedent to see exactly how these proceedings will develop or how this case will affect Kickstarter and other crowdfunding websites.  We suspect it will proceed like many of the other cases we write about in the internet space.  One thing is certain, whether they are made online or in person, people don’t like broken promises.

Read More

Atlantic City Needed to Go Online Years Ago

Photo Credit: Meinzahn

Three more casinos are set to close in Atlantic City. Unions, politicians and lobbyists are pointing fingers. One thing is for certain, newly introduced online gaming legislation is not to blame. If experts had been paying attention to the trends, they would have introduced regulated online gaming into New Jersey years ago…

Want to know more?  Read the full post on Ifrah Law’s new iGaming Blog

The post Atlantic City Needed to Go Online Years Ago appeared first on Crime In The Suites.

Read More

Court: Police Need Warrant to Search Phone. But Guess What? They Get to Keep Your Phone While They Get One.


Will cops still get access to cell phone data post arrest? You bet. Today’s Supreme Court decision just means they need to get permission from a judge before they start searching who you have been texting. And odds are very good, that permission will be granted.

In a unanimous decision authored by Chief Justice Roberts, the United States Supreme Court held that law enforcement officers may not conduct warrantlesssearches of cell phones that are seized incident to an arrest. But just because police cannot immediately search mobile phones, doesn’t mean they cannot immediately seize them in connection with an arrest. Indeed, the benefit of today’s decision by our country’s highest court may be limited to the two defendants who brought the case (and of course any similarly situated defendants).

The named defendant in Riley v California is David Riley. After Riley was stopped for a traffic violation, he was arrested and the police officer seized his cell phone incident to that arrest. When the officer accessed the data on the phone (without a search warrant), he noticed the repeated use of an identifier associated with the Bloods street gang. Later, a detective reviewed the cell phone records and noticed gang-related content, including a photo of Riley standing in front of a car that was used in a shooting weeks earlier. Riley was convicted of multiple crimes related to that shooting and received a sentence of 15 years to life.

The second case resolved today involved Brima Wurie, who had been arrested in connection with a drug sale. After Wurie’s arrest, police took him to the police station where officers confiscated his flip phone. A few minutes later, Wurie’s phone showed an incoming call from “my house.” The officers opened the phone, accessed the call log to determine the number of the incoming call, and then traced the number back to Wurie’s apartment, which they secured. After obtaining a search warrant, the officers searched the apartment and seized drugs, a gun, ammunition, and cash. At trial, Wurie was convicted on three drug-related counts and sentenced to more than twenty years in prison.

The key here to note is that in neither case did law enforcement obtain prior permission to search the cell phones belonging to Riley and Wurie. The narrow question presented to the Court therefore was whether it is permissible for law enforcement to search cell phone data incident to an arrest where no court has authorized such a search. In holding that such a search violates the Fourth Amendment of the US Constitution, the Court considered but rejected as not relevant prior cases where so-called “warrantless” searches passed constitutional muster. For example,

· In Chimel v. California, the Court recognized that the Fourth Amendment permits warrantless searches of the arrestee and areas within his immediate control if necessary to protect officer safety or to preserve evidence.

· In Arizona v. Gant, the Court held that officers may search a car incident to arrest if the arrestee is unsecured and within reaching distance of the passenger compartment or if the officer reasonably believes evidence of the crime of arrest may be found.

Because there were no such exigent circumstances present in Riley or Wurie’s arrest, the Court concluded that the need for cell phone data searches does not outweigh the corresponding intrusion on individual privacy, and thus a warrant was required. This of course is the right result. Digital cell phone data does not, by itself, of course, threaten officer safety. And a warrantless search of cell phone data is not necessary to preserve evidence. The Court recognized an individual’s privacy interest in digital cell phone data is considerable: cell phones have immense storage capacity, collect many types of records in one place, and often contain years’ worth of data.

In this regard, today’s decision is a victory for privacy rights. Law enforcement officers will not be permitted to conduct warrantless searches of cell phones for digital evidence. But if you are arrested, don’t assume law enforcement will let you keep your phone. Today’s decision may not allow for a warrantless search of your phone, but there is nothing prohibiting law enforcement from securing a phone post-arrest and seeking permission from a court to search it. And the chances that a court will grant such a request are close to 100%.

The post Court: Police Need Warrant to Search Phone. But Guess What? They Get to Keep Your Phone While They Get One. appeared first on Crime In The Suites.

Read More

Zealous Counsel or Unethical Social Media Maven – How Far Can a Lawyer Go?

Social media has opened a Pandora’s box of information about just about everyone today, including jurors, witnesses, opposing counsel, defendants and plaintiffs.  As lawyers we want to leave no stone unturned in pursuing a client’s interest, but just how far can we go without jeopardizing our case?  For instance, can counsel (or someone acting at counsel’s direction, such as a paralegal) review a publicly available Facebook page to learn about the background and likes of a potential witness or party?  (Most likely, yes).  May attorneys “friend” that witness to gain access to the witness’s full Facebook page?  (It depends).  Can an in-house lawyer advise an employee to remove posts from the employee’s Facebook page because the lawyer thinks the post could be damaging in an ongoing lawsuit? (Most likely, not).  Can a lawyer “friend” a potential juror? (No).  All counsel need to be cognizant of evolving trends in ethics rules on social media use and contacts.

The New York State Bar Association recently released extensive “Social Media Ethics Guidelines” to address lawyers’ utilization of social media, particularly as to interactions with clients, prospective clients, witnesses, and jurors.[i] The Guidelines are a non-binding advisory publication based on New York’s Rules of Professional Conduct (and precedent in other states) and issued by the Social Media Committee of the New York State Bar Association’s Commercial and Federal Litigation Section. While the Guidelines provide instruction to New York lawyers, they represent the most comprehensive statements on the ethical constraints on lawyers’ use of social media to gather information in litigation. Consequently, other states will likely use the Guidelines in crafting their own policies.

Several other states have either provided some limited guidance as to social media accounts and parties/witnesses/jurors, or are reviewing these issues.  This article provides a brief summary of recent developments, utilizing the New York Guidelines as a guide and an example of how other states may view similar situations.

Reviewing Public Posts

New York Guideline No. 3.A provides that a lawyer may review the “public portion” of a person’s social media profile or public posts, even if that person is represented by counsel.  Under the Guidelines, such access is permissible for obtaining information about the person, including impeachment material for use in litigation. “Public” means: “information available to anyone viewing a social media network without the need for permission from the person whose account is being viewed.” (Comment to New York Guideline No. 3.A). The Guideline cautions, however, that attorneys should be aware that some social media automatically notify a person when someone views that person’s account. 

Reviewing Restricted Posts – Unrepresented Parties

Going one step further, New York Guideline No. 3.B allows a lawyer to request permission to view the restricted portion of an unrepresented person’s social media account.  The lawyer must use his or her full name and an accurate profile.  Attorneys may not create fake or different profiles to mask their identities.  If the person asks for additional information in response to the request, the lawyer is required to accurately provide that information, or withdraw the request.  Earlier, the New York City Bar Association, in Formal Opinion 2010-2, ruled that an attorney or agent may ethically “friend” an unrepresented party without disclosing the true purposes, but may not use trickery.[ii]

Reviewing Restricted Posts – Represented Parties               

New York Guideline No. 3.C bars lawyers from contacting represented persons to seek to review the restricted portion of a person’s social media profile unless the person (presumably, through counsel) furnished an express authorization.  This includes persons represented individually or through corporate counsel.  Interestingly, the Guideline advises that lawyers should use caution before deciding to view “a potentially private or restricted social media account or profile of a represented person which a lawyer rightfully has a right to view, such as a professional group where both the lawyer and represented person are members or as a result of being a ‘friend’ of a ‘friend’ of such represented person.”[iii]

Instructing Others

Lawyers may not direct others, such as paralegals and office staff, to engage in conduct through social media in which the lawyer may not engage. (New York Guideline No. 3.D).  The comment to the Guideline makes clear that this prohibition includes a lawyer’s investigator, legal assistant, secretary, other agent, or even the lawyer’s client.

Using Information Provided by Clients

In situations where a client provides to his lawyer the contents of a restricted portion of a represented person’s social media profile, that the lawyer may review the information, provided certain criteria are met.  (Guideline No. 4.D). The lawyer may not have caused or assisted the client to: inappropriately obtain confidential information from the represented party; invited the represented person to take action without the advice of his or her lawyer; or otherwise overreach regarding the represented person.  “Overreaching” in this context means situations where the lawyer is “converting a communication initiated or conceived by the client into a vehicle for the lawyer to communicate directly with the nonclient.”  Lawyers should be very careful not to advise a client to “friend” a represented person to obtain private information.

Deletion of Social Media Information

The New York Guidelines also address whether a lawyer can advise a client to remove content on the client’s social media account (whether posted by the client or someone else).  A lawyer may advise a client as to what content may be taken down or removed, as long as there is no violation of law – whether statutory or common law – or of any rule or regulation relating to the preservation of information.  If the party or nonparty is subject to a duty to preserve, he or she may not delete information from a social media profile unless an appropriate record of the data is preserved.

Special Considerations Regarding Jurors         

The New York Guidelines allow lawyers to research and view a prospective or sitting juror’s public social media website, account, profile and posts.  However, Guideline No. 5.B cautions that lawyers should be careful to ensure that no communication with the juror takes place – including automatic notices sent by social media networks.  The Guidelines also preclude attorneys from making misrepresentations or engaging in deceit to be able to view a juror’s social media account, profile, or posts, or directing others to do so.  An earlier opinion of the New York City Bar, Formal Opinion 2012-2, concluded that attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research.  Attorneys may not research jurors if the result of the research is that the juror will receive a communication.  Further, neither the lawyer, nor anyone acting at her direction, may use deception to gain access or to obtain juror information.

In April, the American Bar Association (“ABA”) issued Formal Opinion 466, concluding that lawyers may look at information available to everyone on a potential or actual juror’s social media accounts or website.  In other words, observing postings on a public portion of a social media account does not constitute improper ex parte contact with a juror.[iv]  However, ABA Formal Opinion 466 states that lawyers may not send access requests to jurors.  Such a “communication” would constitute a prohibited ex parte contact.[v]  However, under the ABA’s opinion, a social media network’s automatic notification to an individual that an attorney has reviewed that person’s social media account is not violative of the prohibition on communicating with jurors (thus differing from the New York City Bar opinion 2012-2).  The ABA considers the notification to be made by the social media platform, not the attorney. Both the New York Guidelines and ABA Formal Opinion 466 advise lawyers to review the terms of use of social networks regarding automatic subscriber notifications.  Some social networks allow viewers to anonymize their viewing, for instance, which may be a useful course of action.

New York Principles Followed and Expanded in Other Jurisdictions

Other states take a similar approach to public information, generally permitting a lawyer to review the public information of a party, witness, or juror, and prohibiting a friend request or similar request to access non-public information of a juror.  As to witnesses, some Bar authorities (such as those in New Hampshire) specifically allow lawyers to request access to the non-public social media profiles of witnesses, provided the attorney does not use deception.  Virginia bar rules prevent lawyers from “pretextually ‘friending’ someone online to garner information useful to a client or harmful to the opposition,” as pretexing violates Virginia Rule 8.4(c) prohibition against “dishonesty, fraud, deceit or misrepresentation.”  In New Hampshire, a lawyer must also inform the witness of the lawyer’s involvement in the matter.  In Oregon, the State Bar Ethics Committee ruled that a lawyer may access an unrepresented individual’s publicly available social media information but “friending” a known represented party is impermissible absent express permission from party’s counsel.[vi]  The San Diego Bar opined that an attorney attempting to access the non-public Facebook pages of certain high-ranking employees of the opposing party without disclosing the motivation of the friend request violates California Rule of Professional Conduct 2-100 (prohibiting communication with a represented party unless the attorney has the consent of the other lawyer).  Interestingly, the opinion concluded “high-ranking employees” of a represented corporate adversary are considered “represented parties” for purposes of the rule.[vii]

As a general rule, deceptive practices used to gain access to private social media pages may result in proceedings by bar authorities or other adverse actions.  An Ohio prosecutor was fired after his office found out he had created a fake Facebook profile and “friended” a defendant’s alibi witnesses, seeking to influence them against the defendant.[viii]

On the subject of deleting social media pages, a Virginia court sanctioned a plaintiff and his attorney for deleting a Facebook profile and pages that contained photographs that could have negatively impacted a widowed husband’s claim for damages from the wrongful death of his wife in an automobile accident.[ix]  While counsel denied having instructed his client to delete the postings, testimony supported a claim that the attorney directed his paralegal to tell the Plaintiff to “clean up” his Facebook entries.  The court sanctioned the Plaintiff $180,000, and the Plaintiff’s counsel $542,000. Plaintiff’s counsel later agreed to a five year suspension.  The suspension order stated that the attorney violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.[x]

The New York Guidelines provide a useful reminder to practitioners that social media communications cross state lines and may implicate other states’ ethics rules. Counsel should consider Bar rules in states where counsel is admitted, as well as the jurisdiction of any pending case.  In the case of misconduct in a state where counsel is not admitted, it is certainly possible for that state to make a referral to a state where an attorney is barred.  While social media presents a trove of potentially useful information, all counsel need to be aware of, and abide by the ethical restrictions and to tread carefully, particularly as to non-public information.  Bar rules and opinions in this area continue to develop to keep pace with technology trends.  Counsel should continue to monitor further ABA and state bar rulings, particularly before conducting any research pertaining to non-public social media profiles and pages or seeking to communicate with parties, witnesses or jurors.


[i]              The Guidelines are available at: Com_Fed_PDFs/Social_Media_Ethics_Guidelines.html.

 [ii]               See “Obtaining Evidence from Social Networking Websites,” Formal Opinion 2010-2, available at

 [iii]              Comment to New York Guideline No. 3.C.

[iv]              Formal Opinion 466 is available at: professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf/  (“ABA Formal Opinion 466”).

[v]               ABA Formal Opinion 466 at 4.

 [vi]              Oregon State Bar Ethics Committee Op. 2013-189 (available at               

 [vii]             See San Diego County Bar Association Legal Ethics Opinion 2011-2, available at

 [viii]             See Ifrah Law’s blog coverage at     

 [ix]              Lester v. Allied Concrete Co., Case No. CL09-223 (Va. Cir. Ct. Sep. 1, 2011); Lester v. Allied Concrete Co., Case Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011).

 [x]               SeeIn the Matter of Matthew B. Murray, available at



The post Zealous Counsel or Unethical Social Media Maven – How Far Can a Lawyer Go? appeared first on Crime In The Suites.

Read More

Information on is for general use and is not intended as legal advice. Sending an e-mail through this Web site, and receipt of same, does not constitute an attorney-client relationship. Information sent via e-mail is not considered confidential or privileged unless we have agreed to represent you. By sending this e-mail, you confirm that you have read, understand and agree to this notice.

Accept Cancel