Steven provides counsel and guidance to emerging companies, small businesses and tech startups in the e-commerce and defense industries. Clients appreciate Steven’s thorough understanding of the law and his straightforward assessment of their issues and rights under the law. Since many of his clients are small businesses, they also turn to him to manage their general legal matters, such as corporate formation documents, operation agreements and employee contracts. In all of these areas, Steven excels at resolving his clients’ various legal challenges and surpassing their expectations.
As daily fantasy sports has surged in popularity, Steven has applied his knowledge of the online space to companies and niche players in the iGaming market. He provides analysis of current and proposed daily fantasy sports games to ensure compliance with state and federal laws and opinion letters for companies in need of payment processing verification.
Steven has significant experience in the investigative domain of the government. He has a clear understanding of how these proceedings work and how to best represent his clients to obtain the best possible result. His successes include drafting the operating documents for a joint venture that successfully bid on a government contract worth over $10 billion, and prevailing on behalf of a government contractor in a size protest before the U.S. Small Business Administration. He has also enjoyed considerable success for clients in debarment proceedings before the DOD and EPA, achieving decisions of no debarment period for government contractors that were subject to a suspension and debarment proceeding.
Clients in the e-commerce and online advertising sphere turn to Steven for his familiarity with the nuances of their industry. First and foremost, he helps protect clients from legal liability from both consumers and contracting parties. This is achieved through thoughtfully prepared privacy policies, terms and conditions, end user license agreements and online distribution agreements. Beyond immediate industry-related concerns, Steven also provides guidance on legal needs such as product manufacturing agreements, creating LLCs, and writing bylaws.
Steven extends his legal skills in the community by assisting individuals in pro bono matters, including providing legal advice in landlord-tenant disputes and uncontested divorce proceedings. Steven has also served on the boards of a number of community organizations.
Professional + Community
- Bancroft Village Homeowner’s Association, Treasurer
- DC Bar, Member
- KAYTT, Board Member
Successfully Obtaining a Preliminary Injunction at the Court of Federal Claims
Our client, a long-time government contractor, rightly turned to Ifrah Law when it suspected a competitor had violated FAR regulations. Our client submitted a proposal in response to a government RFP to provide seminars and library services to detainees at the U.S. Naval Station Guantanamo Bay. The RFP stated that this would be a “lowest price technically available” (LPTA) contract.
Our client’s proposal was unsuccessful, and they moved to challenge the award. Our critical review of the record revealed that the successful bidder may have utilized unbalanced pricing. We successfully argued that our client’s pricing was balanced and potentially fairer to the government – a difficult argument to make in LPTA solicitations because of the discretion granted to contracting officers. Our challenge was successful and following the court’s order granting a preliminary injunction, the government was forced to take corrective action.
(Torres AES v. United States, 1:13-cv-00898 (Damich, J.))
Successfully Defending a Government Contractor Against a Terminated Employee’s Health Care Claim
Ifrah Law successfully defended a government contractor against claims by a terminated company employee. Our client, a health care professional supplier, faced allegations that it failed to offer the former employee COBRA insurance coverage, as required under the COBRA statute.
Ifrah Law conducted a bench trial in the U.S. District Court for the Eastern District of Virginia in January 2012. The judge sustained minimal claims and awarded the plaintiff a mere $500.
(Middlebrooks v. Godwin Corporation, U.S. District Court, Eastern District of Virginia, No. 1:10CV1306))
Prevailing in a Government Contractor’s Debarment Proceeding
How long should your past haunt you? A client of Ifrah Law faced that question when it was confronted with a potentially crippling debarment from a federal agency.
The government contractor had participated in a conspiracy to bribe a public official for a contract award. However, it was the first to cooperate in the resulting federal investigation, which led to a successful conviction. Fast forward four years, and the Department of Defense moved to debar our client. The DoD had already placed the contractor on the Excluded Parties List System (EPLS) but wanted to go a step further. Debarment would have been devastating for our client’s business, resulting in an almost complete loss of revenue.
Presenting the client’s strong performance record since the bribery incident (we even got the prosecutor from the contract bribery case to write a letter to the court on our client’s behalf), Ifrah Lawyers successfully represented the contractor in the debarment proceeding. We obtained a decision of no debarment period at all.
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))
Effectively Advocating for a Government Contractor Facing Debarment
Having spent over 30 years in the environmental and renewable energy industry, our client was dismayed when he received a Notice of Suspension and Proposed Debarment (the Notice) from the EPA. Facing the possibility of a three-year debarment, our client knew that such a black mark would mean not only the end of his company, but also the end of his career.
Ifrah Law set to work on contesting the Notice and addressing the mitigating and aggravating factors. While our written response was strong, the bold and clearly reasoned advocacy we provided during the oral argument had the biggest impact on the case. Ifrah argued that this was a one-time oversight during an alleged emergency situation, for which our client was truly remorseful. But we took the additional step of arguing that that our client never should have been prosecuted in the first place, and that he was the victim of an overzealous prosecutor.
After the record closed, we were told that a settlement of two years was feasible, but we refused to settle. When the decision was rendered, our client faced no debarment whatsoever, allowing him to resume his government contracting business immediately. The EPA legal counsel involved in this matter told us that the advocating we did on our client’s behalf was one of the best she has ever seen.
Today, the New Jersey DGE issued a “Director’s Advisory Bulletin” clarifying how it would apply its suitability rules to gaming license applicants who conduct internet gaming in other jurisdictions. If you offer a game that is illegal in any jurisdiction, the DGE will consider you unsuitable and bar you from the New Jersey market. The new Bulletin clarified what New Jersey considers illegal: If you operate in a “grey market” jurisdiction where internet gaming laws are ambiguous – or no affirmative enforcement actions have been taken – you’re probably good to go where NJ licensure is concerned. But if you operate in a jurisdiction where the relevant authorities have taken affirmative action to prevent internet gaming activity, it will be considered a “black market” and you may be ineligible for a New Jersey license. Make sure you know what a black market is and stay out!
As a prerequisite to any gaming license determination, the DGE must determine whether an applicant is “suitable” for licensure under the New Jersey Casino Control Act. Internet gaming companies operating illegally in other jurisdictions will be unable to establish the “good character, honesty, and integrity required for a New Jersey gaming license. Operating a legal internet gaming business in another jurisdiction presumably poses no obstacle to suitability. Today’s Bulletin was a result of the DGE’s struggle with how to determine “suitability” when internet gaming companies operate in jurisdictions – as is often the case – where the legality of online gaming is “unclear or inconsistent.” The DGE deemed such jurisdictions “grey markets.” Recognizing that it was in no position to opine on the laws of these grey market jurisdictions, the DGE opted not to adopt a standard that would have imposed its own views on the laws or actions (or inaction) of other sovereign jurisdictions. For practical purposes, this means that New Jersey has adopted a suitability standard of “if it’s not prohibited there, you are permitted here.”
Instead, the DGE will deem an applicant unsuitable based on its operations in other jurisdictions only if the applicant has conducted gaming operations in a “black market” jurisdiction: one in which the online gaming is clearly illegal or where the jurisdiction has “taken affirmative, concrete action to enforce” its anti-gaming law. The DGE listed civil and criminal complaints and the issuance of formal cease and desist letters as examples of such affirmative actions. Where a jurisdiction has refrained from taking any affirmative steps to prevent an internet gaming market to develop, the DGE will consider that jurisdiction to be a “grey market.”
The Bulletin does, however, leave substantial ambiguity concerning the hot area of daily fantasy sports (“DFS”). Some states, like Alabama and New York, have issued cease and desist letters or taken other actions to prevent the operation of DFS sites in their states. New Jersey’s Bulletin clarifies that those states should now be considered “black markets” and operation of DFS in those states could cause an applicant to be found unsuitable by the DGE. The attorney generals of several other states have issued opinions declaring that DFS constitutes illegal gambling. But unlike Alabama and New York, many of those jurisdictions have taken no affirmative action to enforce any law against DFS operators. It remains unclear how the DGE will address those jurisdictions. It could, however, consider the operation of a DFS business in those states as a prohibited “black market” activity.
For internet gaming companies, many of which operate both internationally and in multiple U.S. states, the DGE’s newly announced standard provides welcome clarity to companies looking to do business in the Garden State. Companies currently operating in New Jersey, or hoping to do so in the future, should work with their counsel to ensure that they are not operating in any “black market” jurisdiction.
In light of Tax Day (note that it’s on the 18th of April this year due to a holiday on the 15th) we want to point out a curious ramification from a federal case concerning online gambling, tax reports, and foreign accounts.
In United States v. Hom , the defendant, John C. Hom, was an online poker player who had money in player accounts situated outside America. Accounts such as these are used for depositing funds, wagering them on the site, and withdrawing whatever remains; they are not generally treated as “bank accounts” proper, and Hom did not bother to file a tax return on them. Surprisingly, the court said he should have.
As explained by the court in its decision, an individual is mandated to file an FBAR (a Report of Foreign Bank and Financial Accounts) for a reporting year if all of these requirements are satisfied:
(1) he or she is a United States person;
(2) he or she has a financial interest in, or signature or other authority over, a bank, securities, or other financial account;
(3) the bank, securities, or other financial account is in a foreign country; and
(4) the aggregate amount in the accounts exceeds $10,000 in U.S. currency at any time during the year.
Id. at 1178.
In Hom’s case, three of the requirements were clearly satisfied: the defendant was a U.S. citizen (1), the accounts, like the gaming companies holding them, were located in a foreign country (3), and the aggregate amount in those accounts exceeded $10,000 (4).
Requirement (2) was the sticking point. Could an online poker account really clear the definition of “other financial account,” thus compelling Hom to file an FBAR? His team argued that it didn’t: the funds weren’t held in a bank or securities account and the defendant’s actions were limited to making deposits and withdrawals. Strikingly, the court ruled that it was a financial account because “he opened up all three accounts in his name, controlled access to the accounts, deposited money into the accounts, withdrew or transferred money from the accounts to other entities at will, and could carry a balance on the accounts.” Id. at 1179. The ability to deposit and withdraw at will sufficed to make the gaming companies “function as institutions engaged in the business of banking. Accordingly, defendant’s accounts are reportable even under the current regulations.” Id.
This is a very broad expansion of what passes for a financial institution, and it begs the question of how far it can go. For example, are funds in an attorney escrow account, or other escrowed accounts for a foreign transaction, FBAR reportable? After all, they, too, permit the client to make withdrawals and deposits and carry a balance—and possibly even control access.
Hom is only one case; other courts aren’t bound by it. However, they could still be influenced by this decision. It is therefore prudent to file an FBAR on gambling accounts located overseas that exceed $10,000. Furthermore, one should wonder whether other courts will borrow this reasoning and apply it to other forms of escrow accounts. These questions are very pertinent in light of the IRS’s continuing emphasis on the disclosure of foreign accounts.
 United States v. Hom, 45 F. Supp. 3d 1175 (N.D. Cal. 2014)
The post Online Poker: A New Way to Bank? appeared first on Crime In The Suites.
The New York Attorney General, FanDuel, and Draft Kings announced yesterday that a settlement had been reached in the litigation over the future of daily fantasy sports (“DFS”) in New York. Effective immediately, FanDuel and DraftKings will discontinue operations in New York and pay out existing balances to New Yorkers. This sounds like a major victory for the AG, and a surprising capitulation by the DFS sites after an appellate court allowed them to keep operating in New York while the court cases were in progress. But a closer study of the DraftKings and FanDuel agreements plainly shows that this is far from a definitive settlement.
The agreement would be better described as an armistice. No claims will be dismissed and no resolution has been agreed upon. Everyone has agreed to postpone action on the pending appeals until at least this summer, when the filings will be due for the Appellate Division’s September session, and suspend all litigation in the trial court until the appeals are resolved.
The DFS sites, in other words, have agreed to suspend operations in New York, and now appear to be turning their attention to the New York State legislature as the agreements revolve entirely on whether there is a change in state law expressly legalizing DFS before June 30, 2016. If so, all parties agree not to proceed further and neither DFS site would incur any penalties or pay restitution on the majority of the AG’s claims. This would be a big win for DFS in New York—not only would it be able to operate legally in the state, but DraftKings and FanDuel would be off the hook for any claims about its previously questionable status.
But there’s plenty in this agreement that is unfavorable to the sites. First, the matter of false advertising—central to the AG’s prosecution—is almost entirely unaffected, although it bears little relevance to the permissibility of DFS in general. More interestingly, if the legislature does not expressly legalize DFS, the sites have agreed not to appeal a loss to the New York Court of Appeals, the state’s highest court. This is a curious concession that leaves the sites vulnerable to an adverse decision from an intermediate appellate court in Manhattan. For its part, the AG has made no such concessions. If the Appellate Division rules in the sites’ favor, it would send the case back to the trial court for further proceedings without committing either the AG or the sites to any specific course of action.
Because nothing has changed about the DFS litigation itself, there is good reason to wonder why this “settlement” happened at all. The best-case scenario for the DFS sites would be that the AG, faced with conflicting signals from state courts and New Yorkers alike, has agreed to collaborate on finding a legislative solution that would allow DFS to exist in New York subject to state approval and a method of oversight that allays some of his concerns. A less encouraging possibility is that DraftKings and FanDuel are losing the stomach for a protracted fight in their biggest market and that, if it is not possible to restore DFS to New York quickly, the sites have decided it would be more prudent to cut their losses and focus on other markets.
In the meantime, New Yorkers likely will be without DFS through this summer. If they don’t want it to stay that way indefinitely, they should do as we will and turn their attention to the New York State legislature—where S 6793 in the State Senate is the most promising bill—and where we can expect to see a strong push to finalize a legislative solution before the end of June. So serious a deadline has potent ramifications on the future of DFS in New York and perhaps the nation. As such, we hope it will encourage action even from those who have viewed DFS as a low-priority issue until now.
Just last month at the National Council of Legislators from Gaming States (“NCLGS”) winter meeting in Orlando, I discussed the strong interest in skill-based games by casino owners, regulators, legislators, and the public. In an effort to appeal to millennials, fill empty slot seats, and expand the demographic at Atlantic City casinos, New Jersey’s Division of Gaming Enforcement (“DGE”) just announced new temporary regulations for “skill-based gaming.” Although the DGE already has authority to permit skill-based games – and last year allowed a $10,000 free throw basketball tournament at the Borgata – the agency issued these regulations to provide additional guidance to industry. DGE hopes to encourage companies with skill-based games to bring their products to Atlantic City before other jurisdictions. The regulations can be found here.
Key Consumer Protection Disclosures
The temporary regulations define “skill based gaming” as “any Division approved casino game where game outcome is dependent in whole or in part upon the player’s physical dexterity and/or mental ability.” This definition is broad enough to cover a wide variety of skill-based games – from basketball and golf to “Trivia Crack” and various brain teasers. The DGE mandates certain consumer protections, including that skill-based games clearly display:
- Rules of play
- Amount required to wager on the game
- Amount to be paid on winning wagers
- Any rake or fee charged to play the game
- Total amount wagered by the player
- Statement that the outcome of the game is affected by player skill (applies to skill and “hybrid” games), and
- Other information sufficient for the player to reasonably understand the game
In addition, “unless otherwise disclosed to the player,” once a player begins a skill-based game, the gaming device cannot be altered during play based on a player’s skill.
Special Advantages/Identifiers Allowed with Conditions
DGE’s regulations allow player-purchased enhancements, randomly awarded enhancements, or other advantages, provided all players are advised of these features. The DGE put certain protections in place for these features. Specifically, players must be advised both, that the feature is available, and of the benefit it offers. A skill-based game offering these advantages is required to explain how to obtain the feature and to provide players “with sufficient information to make an informed decision, prior to game play, as to whether or not to compete against a patron” who has this advantage.
Skill-based games may use an “identifier” (such as the skill of the player) to determine which games are available to a player. The regulations also allow players to compete against a computerized or skilled house-sponsored opponent, provided the game discloses when the opponent is participating and allows a player to opt-in or opt-out of a computerized or house-sponsored opponent. To establish fairness, the computerized or house-sponsored opponent must be prevented from having access to information that is otherwise unavailable to a player (for instance, knowledge of upcoming events).
Peer-to-Peer Skill Gaming
All peer-to-peer skill-based games are to be monitored for collusion and money laundering activity using an automated feature (following the internal controls of the casino licensee).
The temporary regulations require that slot machines with a skill-based component have a payout of at least 83 percent for each wager available for play on the device. However, games, which rely “entirely” on skill or do not use a random number generator (“RNG”) are not required to achieve a minimum hold percentage.
Skill-based games will continue to require DGE approval. A special “New Jersey First” process allows companies that bring their skill-based products to New Jersey before or simultaneously with submission to any other jurisdiction or testing lab, a 14-day approval process from testing to placement on the casino floor.
The temporary regulations mirror Nevada regulations on skill-based gaming adopted in September 2015. Therefore, any skill games approved in New Jersey would be permissible in Las Vegas and vice versa.
Massachusetts, Pennsylvania Close Behind/Trends
Other states are exploring permitting skill-based games at casinos. Just last week, Massachusetts issued draft regulations – comments are due by March 7. Pennsylvania is also reviewing allowing skill games at casinos.
Empty chairs at traditional slots mean zero revenues. Casinos are, understandably, looking to attract new patrons and recognize that millennials are used to interactive gaming experiences, having grown up with Xboxes, Wii games, and popular online games such as Candy Crush. Caesars Entertainment’s CEO recently reportedly advised slot makers to speed the development of new products, such as skill-based gaming machines. We expect to see the roll-out of a variety of skill-based games and other contests, including many that may appeal to millennial and Generation “X” and “Y” nostalgia, such as Guitar Hero, Pac Man, and other popular arcade games.
Regulators and casino operators will likely continue to develop rules and procedures during the approval processes and following reviews on the initial roll-out. We see several issues that will need to be addressed depending on the type of game. For instance, when playing head to head, what happens if there is an unanticipated stop of play due to a player issue, a tech issue or some other act? Who ultimately decides the winner in the event of a dispute/tie? Can professionals (for instance e-Sport-sponsored players) play skill-based video games? What about college athletes playing “their” sport in a skill-based athletic game? How will wagers work? Who will host the games? Will there be exclusivity?
The key to answering many of the operational questions will be for the manufacturers and casino operators to develop clear “rules of the game” that address the varied situations – similar to current rules for skills contests run online or in brick and mortar locations. Detailed rules and disclosures can help the games run smoothly and prevent later disputes and litigation.
We applaud New Jersey’s DGE for encouraging innovation through these new regulations and the New Jersey First program. The DGE recognizes the need for games that appeal to expanded demographics. The DGE’s speedy implementation of skill-based gaming regulations, as well as its outreach and willingness to engage with industry demonstrate the agency’s commitment to economic growth while ensuring consumer protections are in place.
*Image from CalvinAyre.com
Ifrah Law founding partner, Jeff Ifrah, weighed in on the battle over bets in a recent newscast for ESPN’s “Outside the Lines.” During the program, Jeff observed that major league sports are getting accustomed to the idea of legalized sports betting: “They are willing to recognize regulation; they’re willing to recognize the legality and it seems to indicate that they are willing to ignore the whole integrity of the game issue.”
The ESPN program, and its related piece, “Betting on the Come,” provided analysis of the sports leagues’ projected take on U.S.-based sports betting, quoting Jeff along with other industry experts such as Commissioner Silver and Nevada state Sen. Mark Lipparelli (the former leader of the Nevada Gaming Control Board).
A few of the recurring themes voiced by Jeff and others included (1) the significant amount of revenue the sports industry is losing out on to illegal and offshore sports betting operations, (2) the growing and inevitable desire of sports fans to be able to place wagers, and (3) the recognition that the technology and data analysis that goes hand-in-hand with modern wagering can actually promote game integrity.
Going Where The Money Is
Jeff noted in the interview that sports betting is “a critical part” of major league sports’ future revenue: “They can’t ignore that.” The program identified estimates that sports betting is a $400 billion a year industry in the U.S. alone, and that illegal sports betting out measures legal betting by some forty fold. With such staggering numbers, it should be no wonder that much of the sports industry would want to partner with the sports betting industry and tap into this revenue stream.
Listening To The Fanbase
Regardless of Commissioner Goodell’s opposition, fans are trending towards wagers. They increasingly see wagering as an integral part of sports entertainment. The uptick in sports fans’ interests, coupled with technology’s ability to provide an outlet, makes for an opportunity the sports industry shouldn’t want to deny. Jeff noted: “You’ve got a potential captive fan base that’s watching games on their phones. And how are they watching those games? Some of those games are being live streamed through the betting apps that they follow because they want to wager while they are watching the game.” More generally, the ESPN program pointed out that sports betting and gambling have become widely accepted. Especially since the growth of fantasy sports, it’s very common for fans to bet on games. This reality is hard for the major leagues to ignore.
Issue Spotting On The Field
“The integrity of the game issue” as an argument against sports betting seems to be dying, according to Jeff and others. One of the overarching reasons major league sports have historically fought against legalized sports betting is the concern that betting will corrupt the game and encourage cheating and game-fixing. But coordination with sports betting can actually help to ferret out such problems. Silver has stated that his league’s relationships with gambling companies [who can provide real time data analysis] help the NBA look for signs of “irregularities, just like the New York Stock Exchange can monitor insider trading.” If betters have to register in a regulated space, and their bets can be seen in real time, it will be easier to flag—in real time—problems like match-fixing.
Holding Their Hand Close? Hedging?
The inevitability of sports wagering and the staggering revenues it yields are especially compelling reasons for rational sports industry stakeholders to support the legalization of betting in the U.S. There are signs that this is the future major league sports are vying for, whether or not stakeholders will fully admit it. As the ESPN program pointed out, the leagues are investing in companies with strong ties to sports betting. For instance, the NFL has partnered with (and become a stakeholder in) Sportradar US, an American subsidiary of Switzerland-based Sportradar AG, which provides sports data to bookmakers in Europe and Asia. The NBA recently invested in FanDuel, which later acquired numberFire, a daily fantasy and sports betting analysis provider. And MLB recently partnered with Sport Integrity Monitor, whose parent company sets odds for foreign bookmakers.
Jeff noted these investments show that sports leagues are no longer truly adverse to wagering: “If you take an equity interest in a company that’s running lines on the games that your teams are playing, then you must have gotten over that issue.”
Regardless of what’s going on in the background, in the foreground these days are conflicting messages, such as major league’s opposition to legalized sports betting in New Jersey (a lawsuit is currently pending in federal court). Perhaps the leagues are trying to hold their hand close, as state attorneys general across the country are looking into the legality of daily fantasy sports. Perhaps the leagues are merely hedging their bets by their investments. In the end, if it’s a numbers game, we suggest you put your money on Silver.