Nicole Kardell Associate

/ P (202) 524-4140

LinkedIn connect on LinkedIn / Twitter @IfrahLaw

From federal and state enforcement actions to government contract work, Nicole has spent most of her time as a lawyer representing clients on the opposite side of the table of government regulators and prosecutors. She has worked on matters involving the Federal Trade Commission, Department of Justice, Internal Revenue Service, Offices of Inspector General of several federal agencies, and Attorneys General of numerous states. Nicole also has worked on many matters in which clients have proactively opposed government action – before administrative as well as judicial bodies. When necessary, she has taken policy issues to congressional offices and committees.

Her years at Greenberg Traurig and Dewey & LeBoeuf afforded Nicole the opportunity to work on large investigative and media-rich cases – from the representation of a former inspector general in his unlawful termination suit against the federal government to the representation of a large multinational insurer in an extensive bid-rigging probe by several state attorneys general.

While working with Jeff Ifrah (both at Greenberg Traurig and Ifrah Law), Nicole has enjoyed building on her experience in federal government contracts and federal and state regulatory and investigative matters.

Professional + Community

  • American Bar Association
  • New York Bar Association
"The Spy In Your Pocket," FEE.orgJuly 20, 2015
Jeff Ifrah, Moderator, "Mock Trial: United States v. Ginger McKenna," iGNA 2015, Planet Hollywood Resort & Casino in Las Vegas, NevadaApril 15, 2015
"Bureaucracy Unlimited," FEE.orgMarch 17, 2015
"You’ll Never Guess Who’s Trying to Hack Your iPhone," FEE.orgJanuary 20, 2015
"Because We Have To," Career College CentralMarch 2014
"Anticipating Gainful," Career College CentralJanuary 2014
"Your Other Regulatory Concern," Career College CentralNovember 2013
"Are You Prepared For a Government Probe?," National Defense MagazineMarch 2008

Securing Dismissal of a False Claims Qui Tam Suit

Jeff Ifrah successfully represented global healthcare leader Merck in a False Claims Act qui tam suit and got the case dismissed.

The suit involved a whistleblower that worked for a healthcare buying company (a group purchasing organization that purchases supplies and drugs). Terminated from the buying group, the employee alleged she was retaliated against because of issues she raised about the buying process.

The case was brought before the U.S. District Court for the Northern District of Texas, and 18 drug companies were named as defendants in an alleged bribery scheme. Jeff represented Merck, which was one of the named defendants. He filed a successful motion to dismiss the complaint, based on the former employee’s alarming lack of specificity in her claim.

Not only was our motion to dismiss successful, it was efficient: Jeff won the dismissal roughly one year after Merck and the other defendants were originally served.

(United States ex rel. Fitzgerald v. Novation LLC, et al., S.D. Tex., No. 3:03-CV-01589))


Highlights And Takeaways from the October 30th FTC Lead Generation Workshop

Leads button pointing  high position with two fingers, blue and grey tones, Conceptual image for increasing sales lead.

Exploiting consumers and exploiting consumer data were popular themes in the FTC’s October 30th workshop on lead generation, “Follow the Lead.” The day-long workshop explored the mechanics of lead generation and its role in the online marketplace. With a focus on the lending and education spaces, panelists discussed the many layers of marketing involved in lead generation—and importantly—how those many layers can add confusion to how consumer data gets collected, sold, used … and misused.

Panelists of the five workshop sessions hailed from industry, government, advocacy groups, and research institutions. They offered insights into both the vulnerabilities and opportunities flowing from the extensive “behind the scenes” market of lead generation. But unsurprisingly, the benefits of lead generation were overshadowed largely by attendant concerns: why is so much consumer data collected, what is done with it, and are consumers aware of how their personal information is being traded and used?

The workshop included two “case study” panels on lending and education. For the panel on lead generation in lending, Tim Madsen of PartnerWeekly provided an overview of how the “ping tree” model works. Connecting prospective borrowers with lenders through a reverse auction of borrower leads, the “ping tree” model may be an efficient way of matching borrowers and lenders. However, Pam Dixon, Executive Director of World Privacy Forum, highlighted her concerns that lenders are receiving consumer data that would otherwise be protected under the Equal Credit Opportunity Act and therefore that the online process is circumventing important consumer protection laws. For instance, the online lending process may require certain personal information from borrowers in order filter fraudulent requests. But that personal information (e.g., gender or marital status) otherwise could not be part of the loan application process. Dixon felt the disclosure of protected information was one that needed to be addressed from both a technical and a policy standpoint. And it is an issue she raised on subsequent panels during the conference, indicating a possible pressure point for future regulatory action.

The panel on lead generation in education was highly charged, due to the controversial nature of marketing higher education and due to the negative attention on for-profit education. Despite many people’s assumption that online marketing in education is largely a tool of the for-profit education industry, Amy Sheridan, CEO of Blue Phoenix Media, provided some surprising statistics: state and private institutions represent roughly forty percent of her business in the education vertical. Even renowned schools like Harvard and Yale are employing lead generation to gain students in their programs.

But given the extensive access to federal funds through higher education, consumer advocates highlighted concerns over students being preyed upon by unscrupulous educators. Jeff Appel, Deputy Undersecretary of Education at the Department of Education, attributed the problem in part to the lack of underwriting in federal student loans. [Query: Wouldn’t it make sense to add underwriting to the federal student loan process? Statistically, private student loan repayment fares much better thanks to this preliminary screening.]

In support of responsible advertising for educational programs, Jonathan Gillman, CEO of Omniangle Technologies, identified the need for clear guidance on appropriate marketing tactics, which may better address problems than resorting to law enforcement. He pointed out the adverse consequences of clamping down on educators’ online advertising: educators are now afraid to advertise online and that space is being filled by affiliates who are more apt to cross the line into deceptive advertising.

Appel provided some general guidance for schools working with lead generators. Schools should (1) monitor how lead generators are representing programs and ensure their ads are not deceptive, (2) make sure payment for advertising does not implicate regulations against incentive-based compensation, and (3) be aware that the actions of lead generators may come under the Education Department’s purview if they are providing additional assistance (e.g., processing student applications).

Both Appel and consumer advocates seemed to agree, though, that laws and regulations already in place were sufficient to address consumer protection concerns in the education marketing space. It is only a matter of having the resources to enforce those laws and regulations. Appel also suggested that state regulators could curb issues by better screening schools.

Throughout the day and across the panels, FTC representatives turned to the concept of “remnant information,” i.e. consumer information that is longer being used. FTC attorney Katherine Worthman asked panelists various questions about what ultimately happens to this information. R. Michael Waller, another FTC attorney and panelist, noted his concern that companies have an economic interest in maintaining and possibly selling remnant information, and that such information is increasingly vulnerable to fraudsters. These FTC attorneys thus pressed about policies on consumer data retention. Aaron Rieke of Upturn supported the FTC concerns and noted that nothing in the company privacy policies (that he’s reviewed) prevents the sale of consumer data:  “privacy policies are shockingly permissive when you look at how much information is being provided.”

Another popular issue was whether and to what extent disclosures to consumers are sufficient: are consumers aware of how their information is being traded? The general consensus among panelists was that consumers remained ignorant to the sale and use of the personal information they provide online.

Upshot from the workshop: Lead generators, and the companies using them, should be aware of the growing interest by federal regulators in (1) how consumer data is being collected, retained, and sold and (2) the extent to which people up and down the online marketing supply chain are vetting the buyers and sellers of consumer data. Other takeaways from the conference: Companies should ensure their data collection and retention policies comply with applicable state and federal law. Finally, it is important for companies to ensure their practices comply with both their policies and their disclosures.


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Jumping To Judgment on For-Profit Education

Flat design vector illustration concept for payed education proces.

If you didn’t know any better, you might have gotten pretty fiery over for-profit education after reading one of the front page stories of Tuesday’s New York Times. The lengthy article titled “For-Profit Colleges Fail Standards, but Get Billions” is all about accusations of greedy institutions bilking taxpayers and taking advantage of students through fraud and other deceptive practices. Why the story ran on page one of the paper is anybody’s guess: the only timely element in the piece appeared toward the end of the article, where the author mentioned the Defense Department’s recent decision to bar the University of Phoenix from its tuition assistance program. By the time you got to that part of the article, you might have cheered the DOD’s decision to cut the educator off, despite the fact that the decision appears premature, based on allegations as opposed to findings (meaning they are meting out punishment before a full investigation or review).

The New York Times piece seems narrowly focused on denigrating an industry that has become the bastard-stepchild of higher education. Ever since U.S. Sen. Tom Harkin decided to take on for-profit education, the industry has been under intense scrutiny from state and federal regulators as well as partisan research and advocacy groups. The article would have readers believe that all the negative attention is the equivalent of substantiated claims that for-profit education is a fraud on federal student loan programs. Thirty-seven state attorneys general, the Securities and Exchange Commission, the Consumer Financial Protection Bureau, the Department of Justice, and the Federal Trade Commission are all investigating for-profit schools.  These schools must be horrible, right? But what the article lacks are legal holdings or findings of fact.

That several agencies are investigating industry participants is not tantamount to guilt: it is more reflective of the fact that regulators take their cues from other regulators. Once an industry becomes unpopular, everyone wants to jump in and get their piece of the pie … or the felled lion. For-profit education is now an obvious target. But, again, that does not make the industry per se bad.

Nor does the fact that many for-profit educators have settled with regulators mean they are guilty: people and companies alike perform a cost-benefit analysis when it comes to whether to fight or stand down. It often makes economic sense to settle out with regulators rather than stay the course through potentially lengthy costly litigation.

What is troubling is the undercurrent – and application – of guilt before innocence, both by the New York Times article and by regulators. What is missing is a comparison of how much for-profit education costs per student versus how much other schools cost, or what dropout rates and post-graduation employment rates look like across schools for single parents and the poor (the types of individuals typically enrolled in for-profit colleges). For instance, studies have shown that community colleges are costing taxpayers billions of dollars for uncomfortably high drop out rates. Other studies identify taxpayer subsidies covering significant amounts of college operating costs.

One of the major reasons why for-profit education has high drop-out rates and poor post-grad employment rates is that they are reaching individuals who otherwise may not have access to degree programs, such as single parents or people in economically depressed areas. These individuals have other complications in their lives that can make completing a degree or finding gainful employment more challenging (e.g., scheduling, transportation). These challenges are not the schools’ fault, but a reflection of external factors. Punishing the schools and taking away educational opportunities does not seem like the most thoughtful decision, but it’s the one that partisan groups, partisan journalists, and regulators seem to be angling for.

Instead of celebrating the Defense Department’s decision to cut off the University of Phoenix from its tuition assistance program, we should be troubled that it is doing so before completing an investigation. In a statement, the University noted that: “It is troubling that DoD has used requests for information from other governmental agencies as grounds for placing the university’s DoD MOU in a probationary status.”

For-profit education does have, and has had, its bad actors… as does every industry. But the all-out slam against the sector, the fight for its demise, is unfair and shortsighted. In the end, the greatest losers will be historically underserved populations who will be denied education opportunities.


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FAIL: For-Profit Education Sector Dealt Major Blow


For-profit education was dealt a major blow in a federal court case challenging the Department of Education’s Gainful Employment Rule. U.S. District Court Judge Lewis Kaplan of New York dismissed a lawsuit that was filed last November by the Association of Proprietary Colleges. The lawsuit is one of two filed in federal court shortly after the Department of Education issued its revised version of the Gainful Employment Rule. The second lawsuit, brought by the Association of Private Sector Colleges and Universities, is still pending before a federal judge in D.C.

In his opinion, Judge Kaplan rejected APC’s arguments that the Gainful Employment Rule (1) violates colleges’ constitutional due process rights, (2) violates the plain language of the statute, exceeding statutory authority, and (3) is arbitrary and capricious. Kaplan held there could be no due process issues as for-profit colleges do not have a “vested right” to participate in federal student aid programs. He discounted as ill-conceived or misleading arguments that the rule exceeds statutory authority. And he dismissed APC’s allegations that the rule as drafted is arbitrary and capricious.

Judge Kaplan’s rejection of APC’s lawsuit is hailed as a victory by detractors of the for-profit education industry who are anxious to see the new rule implemented this July. Some project that Kaplan’s opinion will influence the direction of the pending federal case in D.C. But, despite these portents, the legal theories in the two suits are distinct enough that APSCU’s case should not be overshadowed. The APSCU’s suit centers on how and why the Gainful Employment Rule, as drafted, would disparately impact populations, identifying concern that the rule would “impose massive disincentives” on schools from recruiting “low-income, minority, and other traditionally underserved student populations, because, as an historical matter, those demographics are widely recognized as most at risk of failing the Department’s arbitrary test.”

The complaint also identifies concerns regarding the DoE’s rulemaking process, which it alleges was marred by “well-substantiated allegations of bias and misconduct that led several Members of Congress to accuse the Department of bad faith.” Perhaps it will not go without notice, the next opinion around, that the DoE’s proposed rule more than doubled in size at the 11th hour of the rulemaking process, flying in the face of the purpose of the public notice and comment period.

It is surprising to see so many consumer advocate groups cheering a marred process and pushing for standards that will have the effect of discouraging education opportunities for historically underserved low-income and minority students. It can’t be that their intentions are bad. It is more likely that detractors of for-profit education are narrowly focused on examples of bad actors in the field—that have been called out by authorities for predatory lending practices and misrepresenting the quality or results of their programs. Indeed the industry is not shy of regulators scrutinizing and penalizing bad practices. For-profit education has the likes of the SEC, CFPB, FTC, and a bevy of state attorneys general at the ready. You might think that those skeptical of for-profit education could look to the work done by these agencies and be satisfied that problems are being addressed.

While detractors breathlessly anticipate another judicial benediction of the DoE’s rulemaking, hopefully the next round of judicial opining will address not just the extent of the DoE’s statutory authority but also how the DoE can and should carry out its purpose. In the meantime, for-profit educators would do well to continue efforts to disseminate data that shows how they meet important needs that other schools do not and how their costs compare to actual costs of other schools (e.g., including data on taxpayer funding of community colleges). Perhaps many of the well-intentioned skeptics would be less anxious to see the end of the industry.

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Bureaucracy Unlimited

Businessman caught in Red Tape

This article first appeared on – you can access this version at

Big Gov and Big Biz. Are they holding hands, shaking hands, or boxing? It depends on the day and the issue. But while Big Biz hardly seems like a sympathetic character, Big Gov always has the upper hand.

Remember Arthur Anderson? Perhaps not. It used to be the biggest accounting firm around. Then the Justice Department went after it with little proof but lots of gusto. The megalith firm fought the law, and the law won (temporarily). The Department of Justice obtained a criminal conviction against the firm that was the equivalent of a death sentence: the company lost its reputation and therefore lost its clients. By the time the Supreme Court overturned the conviction, it was a pyrrhic victory for the defunct firm.

Through Arthur Anderson, companies learned that no matter how big you are, the government is bigger. When the government comes after you, stand down and don’t fight.

Enforcement creep

Do you care that Big Gov picks on Big Biz? While Big Gov is busy starting wars of attrition with Big Biz, it is building out its bureaucratic infrastructure — all while sharpening a strategy that means it can’t lose. And that’s everyone’s concern. Companies regularly acquiesce to government demands and pave the way for what I’ll call enforcement creep — de facto lawmaking whereby government agencies use the threat of costly litigation, the threat of multiple agency investigations, or the threat of Arthur Anderson’s sad fate to gain settlements with defendants, even when the companies haven’t committed any significant wrongs.

These settlements often exceed the scope of existing laws and regulations, more accurately reflecting what the agencies want, not necessarily what the law requires. Agencies thus further their policy initiatives — including those not defined by statute or by implementing regulations — on an ad hoc basis, outside the purview of traditional lawmaking.

Here are two examples of how enforcement creep plays out.

Sallie Mae

In May 2014, the Consumer Financial Protection Bureau announced a $96.6 million settlement against student loan servicer Sallie Mae (now Navient Solutions). The agreement was to settle allegations that the company failed to reduce interest rates on loans to military members as required under the Servicemembers Civil Relief Act (SCRA). In the settlement agreement, Sallie Mae didn’t admit to any wrongdoing (a typical agreement term) but nonetheless agreed to pay fines and restitution. It also agreed to institute new measures to ensure compliance with the SCRA.

Here’s the kicker: the new measures require that Sallie Mae not only comply with current law, but go several steps further. That is, current law puts the burden on service members to seek loan reduction relief, but the consent order shifts the burden to Sallie Mae. It requires that the company presume loan reduction requests based upon service member actions (such as a request from the service member for another form of relief). It also requires the company to undertake other measures proactively to seek service member rate reductions (such as creating an online intake form and training designated customer service representatives to advise on SCRA protections).

It probably seemed to government regulators that the loan servicer, instead of the service member, was in a better position to bear the burden of looking after SCRA rights. And so they shifted that burden through an investigation and settlement with a major loan servicer — as opposed to going through the more public rulemaking process and requesting that Congress revise the law.


Here’s another example. In September 2014, Costco settled charges with the Environmental Protection Agency. The government authorities alleged the company violated the Clean Air Act by failing to repair refrigerant leaks and failing to keep adequate records of the servicing of its refrigeration equipment. The consent decree, in which Costco admitted no liability, requires that the company cut its leak rate to almost half the legal maximum over the next three years. (The decree requires Costco to achieve corporate-wide average leak rates of 19.1 percent; the regulations, 40 C.F.R. § 82.156 and EPA guidance, provide a legal leak rate maximum for commercial refrigeration equipment of 35 percent.)

The agreement requires the company to retrofit, replace, and install systems in a manner that similarly appears to surpass legal standards. Comparing the EPA guidance with the consent decree, the decree looks like a big leap from current regulatory requirements. The settlement agreement terms sound a lot more like policy objectives, in keeping with the EPA’s GreenChill initiative, than legal standards.

Give us your lunch money

It’s okay to encourage companies voluntarily to adopt more rigorous environmental standards than the law requires, but when a company’s decision not to comply can result in steep sanctions, the decision is no longer voluntary. So when the government looks for excuses to impose extralegal preferences, it starts to sound less like cheerleading and more like bullying. Think of it this way: it is still legal to encrypt your smartphone, but would you feel free to do so if you knew that the police were investigating everyone pursuing that form of privacy?

Where companies don’t do anything wrong, or where the wrongs committed pale in comparison to the punishment exacted, why do they settle with the feds? It has a lot to do with cost-benefit analysis. Rational parties will assess whether it makes financial sense to defend their positions in protracted litigation or to settle and move on. Since legal defense can be very costly, accepting a reasonable penalty that frees time and economic resources may seem like the best option. It’s similar to the pressure on someone charged with a serious crime, even when they are innocent, to plea bargain rather than face the expense of a long legal defense and the real possibility of a wrongful conviction. Plus, these companies don’t want to face significant bad press or a conviction that could effectively shutter operations. So Big Biz stands down; Big Gov expands its legal reach by applying an extralegal strategy of legislation by threat.


The companies entering into settlement agreements will obviously have to adopt the terms of those agreements or be in breach. But they are not the only ones looking carefully at applying settlement terms. Other companies with similar business practices will recognize a world of limited choices: adopt the government’s policy objectives or prepare for your time in the ring. New de facto law is made outside the courts, outside Congress, and entirely outside the public sphere. The extent to which Big Biz could once serve as a check on Big Gov fades into history, as enforcement creep becomes the new reality.

The post Bureaucracy Unlimited appeared first on Crime In The Suites.

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What Expats Need to Know Now about their Taxes, FATCA and the IRS


Are you an American abroad living in perpetual fear of the IRS? Do you wake up every morning wondering if today you’ll receive a formidable notice that the taxman cometh? You are not alone. Expats around the world are facing (and fearing) the painful reality that the IRS’s global tax enforcement effort is underway. While you may want to stick your head in the sand, a brief review of where we are and how we got here may encourage you to confront your IRS situation.

It started in 2010 with the passage of the Foreign Account Tax Compliance Act. FATCA was billed as an effective way to tackle offshore tax evasion. The legislation requires foreign financial institutions (FFIs) to report on U.S. taxpayers’ accounts or face hefty withholding penalties on transactions passing through the U.S. Affected institutions include not only banks, but any entities substantially engaged in holding or investing financial assets for others. These institutions are required to comply with the law regardless of conflict with the laws of their home country. That means FFIs have been put in the position of potentially violating local data privacy or bank secrecy laws or getting hit with significant penalties on funds passing through the States.

While the PR for the legislation presented it as an important means to tackle rich and greedy tax cheats, the reality is that FATCA impacts a lot more people than Swiss banking billionaires. The legislation has plenty of repercussions for the seven million plus U.S. citizens living abroad. Suddenly, dual citizens with negligible ties to the U.S. (say, they were born in the States but haven’t lived in the U.S. since infancy) realize they are supposed to be reporting their income and assets to the IRS, regardless of foreign location. Many of the unwitting lawbreakers and quiet law deniers have been waiting out the storm, not seeking resolution with the IRS as they think FATCA is not a fixed reality.

There is good reason why some people have hoped FATCA would be repealed, overturned, or perhaps ignored by other countries: (1) the conflicts between local laws and FATCA reporting requirements, (2) the significant costs to FFIs to implement FATCA compliance programs, (3) the unintended consequences to average expats that makes the legislation politically unpopular. The Alliance for the Defense of Canadian Sovereignty launched a legal challenge to FATCA in the Canadian courts. U.S. super lawyer, James Bopp Jr., has helped Republicans Overseas launch a challenge to the law in U.S. courts. And Senator Rand Paul has reintroduced legislation to effectively repeal the law. One would think Senator Paul’s efforts should get traction since there is a Republican-controlled Congress and the party has made FATCA repeal a part of the Republican National Committee platform. But power assumed is hard to retract.

Meanwhile, implementation of the law has trudged on. After a few delays, the law took effect July 1, 2014, and reporting has begun. More than 100 countries have entered treaties (intergovernmental agreements) with the U.S. to facilitate reporting and to get around local law conflicts. Countries with data privacy laws have agreed to have FFIs report to local tax authorities who in turn will report to the IRS. Even countries known for bank privacy protection and bank secrecy (like Switzerland, Hong Kong, and Austria) have agreed to comply with FATCA, eliminating secrecy for U.S. taxpayers.

Paving the way for large scale reporting, the IRS recently launched its web application, the International Data Exchange Service (IDES), for FFIs and foreign tax authorities. IDES is supposed to allow these FFIs and tax authorities to submit U.S. taxpayer information efficiently and securely by an encrypted pathway.

With treaties in play, reporting underway, and technological platforms built, the chances of FATCA getting repealed, overturned, or ignored are dissolving. This is especially true as more countries take their cues from FATCA and consider their own global tax enforcement efforts. Moving in this direction, the Organization for Economic Cooperation and Development has issued a new standard to facilitate intergovernmental sharing of financial data.

Expats that are behind on their IRS reporting need to face this fact and bite the bullet before they shoot themselves in the foot. It is important to address options, like whether or how to use the IRS’s Online Voluntary Disclosure Program or whether and how to renounce U.S. citizenship (note, you’ll still have to pay up for past deficiencies). But the reality is that FATCA is in force and the IRS is invested in ensuring all U.S. taxpayers comply. You may disagree in principle and you may (and perhaps should) advocate for repeal or revision. But in the meantime, find a way to face Uncle Sam.


The post What Expats Need to Know Now about their Taxes, FATCA and the IRS appeared first on Crime In The Suites.

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