Michelle W. Cohen

MEMBER
Biography

Michelle’s unfailing dedication to her clients is evidenced by the fact that her first client, whom she worked with as a first-year associate over 25 years ago, remains an active client. She establishes strong and lasting relationships by committing herself to client service.

At Ifrah Law, Michelle’s practice focuses on helping clients establish powerful and lasting relationships with their customers and prospects. Whether engaging audiences through sweepstakes/contests, social networks, telemarketing, text, or email marketing, Michelle ensures that her clients’ communications comply with current marketing and privacy laws and regulations. For clients who have embraced the popularity of online promotions and gamification, Michelle keeps programs running smoothly by providing guidance on the necessary rules, thresholds and disclosures in the midst of a constantly changing legal landscape.

As Personnel Partner at Ifrah Law and Vice President-Legal Affairs for a large non-profit organization, Michelle oversees compliance with applicable laws and regulations: she reviews and negotiates contracts with employees, contractors and vendors, plus drafts codes of ethics and behavior, in addition to counselling companies of all sizes on how to maintain compliant workplaces. Increasingly in the age of #MeToo, she is called upon by clients to review internal policies and practices to make sure companies are providing harassment-free workplaces for all of their employees. Michelle has also handled internal investigations involving allegations of workplace harassment, violations of company codes of conduct and invocations of whistleblower protections.

Michelle also advises clients on what policies and procedures can be put in place to show a company’s good faith efforts, should the government come knocking. As Practice Group leader for the Firm’s Data Protection and Cyber Security group, she advises online companies, including but not limited to daily fantasy sports and eSports companies, on privacy matters such as the drafting of online terms and conditions, and the preparation of legal opinions and analysis to support launching of services, including working with payment processors.

When clients find themselves involved in an enforcement matter with the Federal Trade Commission, Federal Communications Commission or state agencies, Michelle’s deep knowledge in these areas and her strong footing in the privacy community help her to resolve issues in the most expedient manner possible. Michelle has extensive experience defending individual and class actions in the consumer protection context, including dozens of Telephone Consumer Protection Act cases. She obtained a rare rescission of an FCC citation in a TCPA enforcement matter.

Michelle leads Ifrah Law’s special GDPR Services, guiding companies which collect, store or mine the personal data of European residents on compliance with the General Data Protection Regulation (effective May, 2018).

Michelle’s professional background includes two decades in large firms, including Paul Hastings and Thompson Hine, where she acted as Hiring Partner for the DC office and the Flexible Schedule Coordinator for the law firm. Her litigation experience gives her a solid foundation for helping clients avoid litigation as well as in advising them when they are faced with litigation. Coupled with her employment, regulatory and corporate experience, Michelle’s background allows her to offer her clients a full complement of services.

 

Awards + Recognition

  • Top Author, 2017 JD Supra Readers’ Choice Award
  • National Law Journal, Top Rated Lawyer 2017-2018
  • Cablefax Top Rated Lawyer 2017-2018
  • National Law Journal, Top Rated Litigator 2016
  • Certified Information Privacy Professional (CIPP) certification, International Association of Privacy Professionals
  • ALM 2013 Washington DC’s Women Leaders in the Law
  • ALM 2012 Top Rated Lawyer – Technology Law
  • Martindale-Hubbell AV Preeminent Peer Review Rating

 

Professional + Community

  • Vice President, Legal – Executive Committee, National Woman’s Party at the Belmont-Paul Women’s Equality National Monument
  • Member, International Association of Privacy Professionals (IAPP) – Publications Advisory Board
  • Member, Emory Law Alumni Board
  • Editorial Board Member, Digital Business Lawyer (formerly E-Commerce Law & Policy)
  • Editorial Board Member, Payments & FinTech Lawyer (formerly E-finance & Payments Law & Policy)
  • Women in Cable and Telecommunications Past Board Member Washington, D.C. – Baltimore Chapter
  • Federal Communications Bar Association
  • District of Columbia Bar
  • New York State Bar Association
  • Women’s Bar Association of DC
  • Volunteer, Special Olympics
  • Brandeis University Alumni Admissions Council
  • Pro Bono Volunteer through the District of Columbia Bar
  • Former Board member for the Law Firms Division of the United Way, National Capitol Area

 

Certified Information Privacy Professional Logo

Publications + Presentations
February 21, 2017 | Presentation

"Consumer Review Fairness Act"

Money For Lunch Radio Program

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December 2016 | Publication

"US Banking Regulators Consider Enhanced Cyber Risk Standards", Cyber Security Practitioner

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July 29-31, 2016 | Presentation

"Committee on Lotteries: Seeking Growth Opportunities, Converging with Casinos"

National Council of Legislators from Gaming States, 2016 Summer Conference, Boston, MA

June 2016 | Publication

"Amazon Case Shows Value of In-App Purchase Disclosures", E-Commerce Law and Policy

Read more

April 27, 2016 (updated repeat in September) | Presentation

"The Telephone Consumer Protection Act: Avoiding Multi-Million Dollar Litigation", Clear Law Institute

Webinar - Clear Law Institute

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April/May 2016 | Publication

"Scoring Cash With Angry Birds?", iGaming Business North America

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November 17, 2015 | Presentation

"TCPA: The New Guidance and What It Means"

IAPP: Practical Privacy Series 2015 - Washington D.C.

Read more

September 30, 2015 | Presentation

"Technology and IP Forum: Back to School Marketing Primer – Marketing Through Technology, What is Allowed and What Isn’t?", Association of Corporate Counsel, National Capital Region

September 2015 | Publication

"Is The Emergence of a U.S. ‘Right To Be Forgotten’ Likely?", E-Commerce Law & Policy

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June 12, 2015 | Presentation

"Committee on Casinos: Update on Internet Sweepstakes Café Enforcement Issues", National Council of Legislators from Gaming States, 2015 Summer Conference, Atlantic City, NJ

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April 2015 | Publication

"Progress Slow For Commercial Use of Drones In The US", E-Commerce Law and Policy

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January 2015 | Presentation

"Lotteries and Social Media", National Council of Legislators from Gaming States, 2015 Winter Conference, Las Vegas, NV

October 2014 | Publication

"FTC Staff Recommendations for Mobile Financial Services", E-Finance & Payments Law & Policy

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September 22, 2014 | Presentation

"What’s Legal in Text Marketing!", Hybrid Telephony Summit 2014, Chicago, IL

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September 11, 2014 | Presentation

"Managing Litigation in the Small Law Department Environment", WMACCA Small Law Department Initiative, McLean, VA

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September 2014 | Publication

"The FTC Releases Staff Report on Mobile Shopping Apps", E-Commerce Law & Policy

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June 26, 2014 | Presentation

"The Wild World of Witnesses: When Good Witnesses Go Bad", WMACCA Litigation Forum, McLean, VA

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June 2014 | Presentation

"U.S. Banking Regulators to Review Laws", E-Finance & Payments Law & Policy

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February 18, 2014 | Publication

"Net Neutrality – Verizon v. Federal Communications Commission", E-Commerce Law Reports

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December 2013 | Publication

"Oral Arguments Heard in the FCC’s ‘Open Internet’ Dispute", E-Commerce Law Reports

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October 3, 2013 | Publication

"Data Security: FTC v. Wyndham Corporation", E-Commerce Law Reports

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September 11, 2013 | Presentation

"Don’t Litigate, Mediate: Here’s How", WMACCA Litigation Forum, McLean, VA

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March 2013 | Publication

"FATCA: the end of hiding US accounts in foreign banks?", E-Finance & Payments Law & Policy

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March 2013 | Publication

"FTC issues privacy focused mobile payments report", E-Finance & Payments Law & Policy

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February 19, 2013 | Presentation

"Trash Talk? Viral Leaks? What to do When Employees and the Public Take to the Internet Town Square", WMACCA Technology and IP Forum, McLean, VA

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February 7, 2013 | Publication

"Editor’s Insight – Mobile Marketing and Privacy", E-Commerce Law & Policy

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January 2013 | Publication

"The FTC reports to the US Congress on Dodd-Frank", E-Finance & Payments Law & Policy

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September 2012 | Publication

"Visa/MasterCard Antitrust Litigation", E-Commerce Law Reports

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August 2012 | Publication

"The Federal Trade Commission, Plaintiff v Spokeo, Inc.", E-Commerce Law Reports

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July 2012 | Presentation

Michelle W. Cohen, Michelle Cohen, Presenter, "The Consumer Financial Protection Bureau: The Financial Industry’s New Watchdog", LeadsCon East Conference Presentation, New York City, New York

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March 2012 | Publication

"Best Offense Is a Good Defense", Inside Supply Management

Case Studies

Ifrah Law Represents Seller in Multi-Million Dollar Acquisition of Affiliate Marketing Company by Publicly Traded International iGaming Corporation

In the second acquisition this year negotiated by Ifrah Law in the iGaming space, an international gaming company has purchased the firm’s affiliate marketing client in a deal valued at approximately $6.5 million. The buyer praised the deal as confirming its position as the number one player in iGaming lead generation in the U.S.

Requiring an in depth knowledge of the iGaming industry in addition to applicable gaming laws, the deal demonstrates Ifrah Law’s preeminence in this rapidly growing space. The firm’s reputation continues to rise as the go-to advisor for building profitable businesses in the affiliate marketing and iGaming industries, which are becoming increasingly attractive to larger buyers.

Clients turn to Ifrah Law for its ability to create meaningful agreements, often in an accelerated time frame, which provide value to buyers while at the same time encouraging sellers to continue to innovate in this burgeoning industry.

As the legislative climate for iGaming improves across the U.S., Ifrah Law anticipates an increase in companies seeking to take advantage of the opportunities available in this profitable nexus between affiliate marketing and online gaming.

Partner and M & A Lead Michelle Cohen and Counsel Drew Barnholtz represented the Seller in this transaction.

Ongoing Defense of TCPA Claims against Financial Services Company

Ifrah Law represents a financial services company against in several matters involving claims under the Telephone Consumer Protection Act (“TCPA”) which allege violations in connection with debt servicing calls.  We are currently litigating and arbitrating over 25 cases for this client in many jurisdictions across the United States.

The potential collective cost to the client is significant in TCPA cases, which allow for statutory damages of up to $500 per call, and $1500 per call if a violation is deemed willful.

Ifrah Law’s team has been consistently successful in negotiating satisfactory resolutions of many of these claims. We have also succeeded in attaining positive results for our client in arbitration proceedings.  We have litigated or arbitrated these matters in states such as Florida, Maryland, Illinois, Virginia, New York, and the District of Columbia.

Swift Resolution of a Potential TCPA Class Action

A plaintiff alleged that Ifrah Law’s longtime client, a company that provides fax and voice broadcast services to Fortune 500 businesses, sent faxes to her cellular phone without consent and in violation of the federal Telephone Consumer Protection Act of 1991 (“TCPA”). The plaintiff claimed that she represented a class of persons who had received these attempted faxes on their cellular phones and thus that she and the class were entitled to statutory damages under the consumer protection law which targets unsolicited communications.

During discovery it became apparent that our client had instituted superior compliance protocols, due to the ongoing counsel of Michelle Cohen, leader of our Data Protection and Cyber Security practice group. Michelle had worked with the client for years on ensuring that their business model fit within the “fax broadcaster defense,” which protects innocent fax broadcasters from TCPA liability. Michelle helped create this defense when the FCC first implemented the law. The matter settled swiftly for a nominal amount, due to the lack of substance behind the allegations.

The case is remarkable for its demonstration of Ifrah Law’s superior advice and counsel throughout a client relationship. On the compliance side, Ifrah Law helped our client to anticipate potential challenges under the TCPA and mitigate risk. When the company found itself embroiled in litigation, Ifrah Law was able to bring such a challenge to a quick resolution by demonstrating its compliance while guiding the client through the litigation process. The firm’s attorneys have been involved with the TCPA since its inception in 1991, and we typically work closely with company executives on their compliance protocols and privacy practices, developing a thorough understanding of the types of communications   the company initiates and crafting operational and contractual protections to protect the company in the face of potential class actions, other litigation, and regulatory oversight.

Winning Big with a Celebrity Sweepstakes Endorsement

After developing a solid online promotions program over several years with Michelle Cohen advising on sweepstakes and contests, Michelle’s long-standing client, a digital wellness company, decided to energize its online efforts with a celebrity endorsement sweepstakes. The celebrity, a known health advocate and popular entertainer, partnered with our client to give away VIP ticket packages to his sold out shows in multiple cities.

Michelle crafted sweepstakes rules and reviewed promotional materials, including social media campaigns. The celebrity also used social media to organize in-person athletic meet-ups around the country, as part of his current touring schedule. This coast-to-coast campaign included sweepstakes at the on-site events. Michelle worked with our client on several aspects of its campaign, including social media messaging, drafting winner’s eligibility affidavits and ensuring compliance with state and federal sweepstakes laws, as well as social networks’ policies and requirements.

The result? Michelle’s client continues to develop exciting and clever online promotions that will engage their audience, while complying with applicable laws and regulations and maintaining positive relationships with key social networks.

Successfully Negotiating the Sale of Assets During a Government Investigation

When a company that is under investigation for money laundering decides to sell its assets, what was once a straightforward sales process becomes a complex negotiation. That is what happened with our client, a provider of diagnostic testing equipment.

Ifrah Law and Michelle Cohen represented the company in its sale of radiology and cardiology diagnostic services equipment, which involved numerous challenges. Understandably, the buyer was concerned about the ongoing criminal investigation, and Michelle worked closely with them to address their concerns about representations and warranties and possible post-sale seizure from the government. Additionally, since there were bank liens on some of the assets, Michelle worked with the bank’s outside counsel to arrange a prompt payoff, obtain a satisfactory pay-off letter and secure a release of the liens in order to close the deal. Michelle also worked with the buyer to create a creditor payment plan that would payoff unsecured creditors and obtain releases from them in order to address the buyer’s concerns about unsecured creditors seeking relief from the buyer. Finally, she created an employee fund (funded by the buyer) to pay for uncompensated leave time.

These complicated issues were resolved in less than two weeks, as a result of Michelle’s skilled negotiations with all parties. The buyer was represented by Delaware’s largest law firm.

Successful Resolution of a TCPA Class Action

Michelle Cohen’s client, a publicly-traded enhanced messaging provider, was involved in a large-scale class action alleging violations of the TCPA’s unsolicited facsimile advertising rules. In addition to having provided the client with TCPA advice for over 15 years, Michelle represented them in enforcement matters before the FCC, including obtaining the rescission of an FCC citation, a highly unusual ruling from the FCC, finding that the client had a valid defense to the citation.

This TCPA case involved the alleged sending of 125,000 unsolicited faxes. The class was suing for triple damages of $1500 per violation – up to $180 million. Michelle and her team handled discovery, including depositions and motions. When the other parties decided to enter mediation, Michelle represented her client through the mediation, to the settlement agreement and ultimate dismissal of the case. Given the damages at stake, this case was successfully resolved for Michelle’s client, whose settlement contribution fell below the limits of their insurance policy.

Ensuring TCPA Compliance for a Global Provider of Customer Management Services

On behalf of our client, a leading provider of customer management services with call centers around the world, Ifrah Law led a full-scale review of its customer communications to ensure that they comply with federal and state requirements, including those of the TCPA and the FTC’s Telemarketing Sales Rule (TSR). We addressed the many different types of calls that the company undertakes on behalf of its varied customer base – service calls, appointments, live sales calling and pre-recorded calls – to ensure that its call centers are using consistent protocols and controls in the United States, and that these protocols are in compliance with the TCPA and TSR. Our client trusted Ifrah Law with this extensive project due to our long history with managing TCPA matters – we have been involved with the TCPA since its inception in 1991 – and due to our prior work for the client, including successfully representing the client in two FCC inquiries.

We worked with the company’s Director of Privacy to develop a thorough understanding of the types of calls that the company makes for its customers, and the contractual protections that are in place and which could be revised to protect the company further. A critical aspect of this project was to educate leaders within the company that there are different TCPA requirements based on the type of call: technology used, person being called, whether the call is pre-recorded or live; mobile or business. We also wrote the call center guidelines and controls to ensure that all employees – from those being trained to the marketing team – had the same information regarding how to handle different types of customer call projects.

This large-scale process took a year to complete. Once the documentation was finalized, our client was ready to begin a company-wide training program on the guidelines, well in advance of TCPA rule changes.

Blog Posts
March 21, 2018

Facebook and the FTC: A Wake-Up Call for Companies Collecting Personal Data

Facebook and the FTC: A Wake-Up Call for Companies Collecting Personal Data

The FTC is reported to be joining state and international regulators in examining Cambridge Analytica’s actions with data accessed from Facebook, including how the data analytics company obtained the information, what it did with the information, and whether Facebook complied with existing obligations, including a 2012 FTC consent decree. The situation underscores the importance of… Read More

January 18, 2018

Mount Sinai Health System Defeats TCPA Action for Flu Shot Reminder

Mount Sinai Health System Defeats TCPA Action for Flu Shot Reminder

No one likes being on the receiving end of an immunization shot, but many of us submit to a flu shot each fall or winter.  David Latner, a patient of the Mount Sinai Health System’s West Park Medical facility, apparently found a single text from West Park reminding him about flu shots to be alarming… Read More

April 17, 2017

D.C. Circuit v. FCC – More Pushback to Come?

D.C. Circuit v. FCC – More Pushback to Come?

Over the past several years, the Federal Communications Commission (“FCC”) took an expansive view of its rules under the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA bars certain calls, texts and faxes without prior express consent and requires disclosures and opt-out procedures.  While the FCC and state attorney generals may enforce the TCPA,… Read More

February 8, 2017

Is it a Lottery or is it Gambling? UK Regulator Slaps Lottoland for Misleading Radio Ad

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Gambling, including online gaming, lotteries, and land-based gaming, has tremendous participation in the United Kingdom.  One study concluded that 75% of the UK’s adult population gambled in some manner.  UK regulators take an aggressive approach to licensing, supervision, and enforcement of gambling laws and regulations, including gaming-related advertising.  As more U.S. states permit online gaming,… Read More

January 12, 2017

Online Reviewers Get New Protections

Online Reviewers Get New Protections

Your business booked a large charity event.  However, the customer contact turns out to be a nightmare. She complains (during and after the event) that the service was slow, the food looked and tasted like a frozen meal, and the drinks were watered down.  She even claims she was overcharged.  You reviewed the situation and,… Read More

Crime in the Suites | FTC Beat | Ifrah on iGaming