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 20 years ago, remains an active client. She establishes strong and lasting relationships by committing herself to client service. Michelle understands her clients’ business goals, guides them in their use of new technologies, and communicates with them as their business activities unfold.

Michelle’s practice is focused on helping her 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 clients rely more on social media to publicize promotions, Michelle provides up-to-the minute legal counsel related to the rules on Twitter, Facebook and other social sites.

As Ifrah Law increasingly leads the way in iGaming, Michelle advises daily fantasy sports and eSports companies on privacy matters, including drafting online terms and conditions, and preparing legal opinions and analysis to support iGaming companies’ launching of their 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 also advises clients as to what policies and procedures can be put in place to show a company’s good faith efforts, should the government come knocking. When companies are involved in potential data or security breaches, Michelle knows which questions to ask to ensure they have a sound legal strategy. She works with the company step-by-step to resolve the situation from both the government’s, and her clients’ as well as their customers’ points of view.

Previously, Michelle was a partner at Thompson Hine where she was a member of their telecommunications, corporate transactions & securities and emerging technologies groups. She began her legal career in the litigation department at Paul Hastings, where she spent seven years honing her litigation skills, prior to moving into their corporate practice. 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. This litigation experience, coupled with her regulatory and corporate experience, allows Michelle 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
  • Cablefax Top Rated Lawyer 2017
  • 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

Publications + Presentations
February 21, 2017 | Presentation

Michelle W. Cohen, Speaker, "“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

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

"The Telephone Consumer Protection Act: Avoiding Multi-Million Dollar Litigation", 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.

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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

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
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

Is it a Lottery or is it Gambling?  UK Regulator Slaps Lottoland for Misleading Radio Ad
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
November 10, 2016

How The FTC Guides Businesses Through Data Breaches

How The FTC Guides Businesses Through Data Breaches
The Federal Trade Commission (“FTC”) recently released a data breach guide for businesses, along with a video and blog to help companies following the immediate aftermath of a data breach.  The FTC also provides a model data breach letter to notify individuals of a breach.  The agency – which views itself as the nation’s primary... Read More
April 5, 2016

Wells Fargo Learns That Recording Calls In California Can Be Costly

Wells Fargo Learns That Recording Calls In California Can Be Costly
In the past few years, many organizations such as Capital One, Bass Pro Outdoor, and the Cosmopolitan Hotel have faced class actions alleging violations of California’s call recording law.  This week, California’s Attorney General demonstrated that her office, working with state prosecutors, will also vigorously enforce the law under the state’s criminal statutes.  Attorney General... Read More
February 25, 2016

Guitar Hero for Cash! New Jersey Issues Temporary Regulations for Skill-Based Gaming

Guitar Hero for Cash! New Jersey Issues Temporary Regulations for Skill-Based Gaming
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... Read More
September 16, 2015

TCPA Trouble Continues: FCC Slams Lyft and First National Bank for Terms of Service Requiring Consent

TCPA Trouble Continues: FCC Slams Lyft and First National Bank for Terms of Service Requiring Consent
Most of the attention involving the Telephone Consumer Protection Act (“TCPA”) has centered on the stream of class actions around the country. It is important to remember that the Federal Communications Commission (“FCC”) and state attorney generals can, and do, enforce the TCPA. In fact, the FCC recently issued citations to Lyft, the ride-sharing service,... Read More
September 14, 2015

Five Legal Issues Your eSports Company Needs to Know About Operating in the U.S.

Five Legal Issues Your eSports Company Needs to Know About Operating in the U.S.
Photo courtesy https://outplayed.fr/  With a $143 million market in North America, eSports is big business in the U.S. And given its swift rise in popularity – 205 million people worldwide watched or played eSports in 2014, it will only become bigger. At last week’s eSports Conference, held in San Francisco September 9-10, industry leaders met... Read More
July 9, 2015

State Attorneys General Tell Congress: “Back-Off Our Data Breach Authority”

State Attorneys General Tell Congress: “Back-Off Our Data Breach Authority”
Every week, we learn about new data breaches affecting consumers across the country. Federal government workers and retirees recently received the unsettling news that a breach compromised their personal information, including social security numbers, job history, pay, race, and benefits. Amid a host of other public relations issues, the Trump organization recently discovered a potential data... Read More
May 26, 2015

Keeping Your Privacy Promises: Retail Tracking and Opt-Out Choices

Keeping Your Privacy Promises: Retail Tracking and Opt-Out Choices
As children, many of us were taught how important it is to “keep your word.” Similarly, it is black letter privacy law that if a company commits (for instance, in a privacy policy or in website statements) to certain actions or practices, such as maintaining certain security features or implementing consumers’ choices on opt-outs, the... Read More
Crime in the Suites | FTC Beat | Ifrah on iGaming