Rachel Hirsch

MEMBER
Biography

In each client engagement she undertakes, Rachel strives to achieve the best results possible while managing costs along the way. But, equally as important to her clients, is the strong rapport that she develops with them. From their first interaction, Rachel takes the time to get to know her clients, making it clear that they are truly important to her. Part of this relationship building is evident in her dedication to responding quickly and efficiently to client inquiries, without ever sacrificing the quality or thoughtfulness of her response. It’s this reputation for service and skill that sets Rachel apart.

Rachel focuses her practice on complex business transactions and litigation. Specifically, she approaches her work in the online advertising and iGaming spaces with an enthusiasm and drive that mirrors these rapidly evolving, cutting-edge industries. Rachel’s professional career has developed alongside these industries, so when clients call her about an issue, she understands their needs like few others. She speaks their language, deeply understands their businesses and has likely already worked with clients to resolve similar challenges. Navigating the complex regulatory and legal issues of affiliate advertisers and iGaming platforms is second nature to Rachel and she knows what it takes to resolve business interruptions and get her internet-based business clients back up and running.

Rachel’s experience focuses on all areas of internet advertising and marketing; examples of her work include:

  • Advising e-commerce merchants on issues relating to structuring their business partnerships in ways that minimize liability while maximizing revenue through reviewing their terms, creating privacy policies, and dealing with privacy issues
  • Drafting network and affiliate agreements to ensure compliance with FTC Guidelines
  • Developing and negotiating contracts and handling contract disputes
  • Defending against class action lawsuits
  • Addressing issues relating to copyright, trademark, and trade dress infringement from both a defensive posture as well as from an enforcement perspective
  • Conducting compliance reviews of sales pages and advertising and promotional materials (including T.V. and radio spots) to ensure compliance with applicable state and federal rules, regulations, and guidelines
  • Responding to consumer complaints that are issued through state Attorney General’s offices

As the iGaming industry has entered the legal spotlight, Rachel has followed its developments closely, regularly publishing articles on the dynamic iGaming landscape in the U.S. She applies her knowledge of iGaming regulation to her clients’ litigation needs, having written winning motions related to antitrust and RICO issues, conducted discovery, and been involved in class actions brought by players. In the courtroom, clients can rely on Rachel to know the facts of a case in such detail that she can advance arguments quickly and think on her feet when responding to arguments presented by opposing counsel. By combining her solid understanding of the industry with her ability to overcome challenging legal issues in order to identify legal grounds that work in her clients’ favor, Rachel is able to meet her clients’ high-stakes needs.

Rachel is a member of the board of the Maryland Defense Counsel, where she currently serves as program co-chair and formerly held the positions of products liability chair and sponsorship co-chair. She began developing her trial skills in the product liability defense and general commercial litigation practice at Venable LLP. Rachel strengthened these skills at Meyers, Rodbell & Rosenbaum, P.A., where she represented insurance companies in lead paint litigation.

 

Awards + Recognition

  • Winner of The Daily Record’s 2016 Leading Women Award
  • Named to The Daily Record’s 2015 VIP List, Successful by 40 Honoree

Professional + Community

  • Programming Co-Chair, Maryland Defense Counsel
  • Board Member, Baltimore Women’s Bar Association (2009-2010)
  • Member, ABA
  • Member, Maryland State Bar Association
  • Member, Defense Research Institute
Publications + Presentations
July 2017 | Publication

"Department of Common Sense – Why Optics Matter", FeedFront Magazine

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March 8-10, 2017 | Presentation

Rachel Hirsch, Presenter, "Know Your Processor – How Merchant Accounts Strive, Thrive, and Stay Alive", Panama GB Summit, Panama City, Panama

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January 15-17, 2017 | Presentation

Rachel Hirsch, Presenter, "One Simple Disclaimer to Mitigate Lawsuits", Affiliate Summit West 2017, Las Vegas, NV

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December 2016 | Publication

"High-Risk Merchant Processing Just Got Riskier", FeedFront Magazine

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October/November 2016 | Publication

"The DGE-KGC Agreement", iGaming Business North America

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August 1, 2016 | Presentation

Rachel Hirsch, Presenter, "Power in Numbers: Insight Into State AG/FTC Collaborations", Affiliate Summit East, New York Marriott Marquis, New York, NY

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July 21, 2016 | Presentation

Rachel Hirsch, Speaker, "When Responsible Lending Turns Irresponsible (and Potentially Criminal)", PerformLine

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February/March 2016 | Publication

"NY Poker: Back In The Game", iGaming Business North America

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April 2016 | Publication

"Debunking Common Can-Spam Misconceptions", FeedFront

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January 2016 | Publication

"Seller Beware: The Terms That Bind", Feedfront

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October 2015 | Publication

"Target On Your Back? Navigating Subpoenas", FeedFront Magazine

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September 24, 2015 | Presentation

Rachel Hirsch, Speaker, "Hold the Phone – Everything You Thought You Knew, But Didn’t Know, about the TCPA and TSR", Leads Council

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July 2015 | Publication

"Lessons From Recent FTC/State AG Collaborations", FeedFront Magazine

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June 10, 2015 | Presentation

Rachel Hirsch, Speaker,, "Regulatory and Legal Trends in Advertising", COMPLY 2015, The PerformMatch User Summit & Marketing Compliance Conference, New York, NY

June 2015 | Publication

"The Big Debate", EGR North America

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May 18, 2015 | Presentation

Rachel Hirsch, Speaker, "Don’t Become A Fly-By-Night Business", Performance Marketing Summit 2015, Boca Raton, FL

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April 7, 2015 | Publication

"Lurking in the Shadows – Dual Agency Enforcement of Affiliate Marketers", Response Magazine, DRMA

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March 30, 2015 | Presentation

Rachel Hirsch, Co-Presenter,, "Compliant Lead Generation For Medicare: Does It Exist? Is It Scalable?", Medtrade Spring 2015, Mandalay Bay Convention Center, Las Vegas, NV

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March 3, 2015 | Publication

"Legislating Through Litigation: Why ROSCA Suddenly Matters", Response Magazine, DRMA

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January 20, 2015 | Presentation

Rachel Hirsch, Speaker, "The Best Defense is a Good Offense – Managing Legal Risk", Affiliate Summit West, Paris Resort and Hotel, Las Vegas, NV

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October/November 2014 | Publication

"The Future of Mobile Gaming in the U.S.", iGaming Business North America

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August/September 2014 | Publication

"Shape Up or Ship Out: NJ’s New Affiliate Guidelines", iGaming Business North America

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October 31, 2014 | Publication

"I Received an FTC CID – Now What?", FeedFront

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August 13, 2014 | Presentation

Rachel Hirsch, Speaker, "Calls and Compliance-TCPA Expert Panel Session", LeadsCon 2014, Marriott Marquis, New York, New York

August 12, 2014 | Presentation

Rachel Hirsch, Speaker, "Mo Money, Mo Problems – Scrutinizing FTC Settlements", Affiliate Summit East, Marriott Marquis, New York, New York

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May 2014 | Publication

"Don’t Be Penny Wise and Pound Foolish", FeedFront Magazine

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March 26, 2014 | Presentation

Rachel Hirsch, Moderator, "Revisiting TCPA: Staying Compliant While Addressing the Challenges and Complexities", LeadsCon 2014, Mirage Hotel in Las Vegas, Nevada

March 20, 2014 | Presentation

Rachel Hirsch, Speaker, "Affiliate Compliance: It’s Not Just the Message, It’s the Messenger", Affiliate Management Days, The Marriott Marquis in San Francisco, CA

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March 2014 | Publication

"US State Regulation – The Next in Line", iGaming Business North America

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January 13, 2014 | Presentation

Rachel Hirsch, Speaker, "Why Compliance is a Tough Pill to Swallow – Nutraceuticals", Affiliate Summit West, Paris Hotel in Las Vegas, NV

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March/April 2013 | Publication

"Pioneering a New iGaming Frontier to New Jersey and Beyond", iGaming Business Magazine

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November/December 2012 | Publication

"Raising the Stakes for iGaming Regulation in the US", iGaming Business Magazine

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March/April 2012 | Publication

"DC Folds a Good Hand", iGaming Business Magazine

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May/June 2011 | Publication

"Nevada: The Game Changer", iGaming Business Magazine

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January 2014 | Publication

"When the Government Comes Knocking", FeedFront Magazine

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December 2013 | Publication

"Inter-State Gaming Agreements", iGaming Business North America

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October 2013 | Publication

"Inter-State Deal Making: Nevada and New Jersey Look to Compact", iGaming Business North America

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October 2013 | Publication

"Taking the ‘Affiliate’ out of Affiliate Marketing", FeedFront Magazine

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September 2013 | Presentation

Rachel Hirsch, Presenter, "On the Line – Consenting To A New Way Of Lead Generation Under The TCPA", LeadsCon Webinar

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August 15, 2013 | Presentation

Rachel Hirsch, Speaker, "TCPA Regulatory Issues", LeadsCon 2013, Hilton Hotel in New York, NY

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August 2013 | Publication

"King Bill Looks to Take Crown in Federal vs State Online Supremacy", iGaming Business North America Magazine

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July 3, 2013 | Publication

"State of Union for the Gaming World in 2013", iGaming Business North America Magazine

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April 2013 | Publication

"Hedging Bets: Affiliates and the Unregulated Markets", FeedFront Magazine

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March 2013 | Publication

"Monopoly or fair game? Google’s FTC settlement", E-Commerce Law & Policy

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July 19, 2010 | Publication

"Circuits Split Over Securities Fraud Sentencing", The National Law Journal

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Case Studies

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

A plaintiff’s law firm brought two gambling-loss recovery cases against our client, Amaya, in the United States District Court for the Southern District of Illinois. The first case addressed alleged gambling losses sustained as a result of playing on the PokerStars website. Additionally, our client was implicated in a second case that named Rational FT, which the client acquired when the client purchased Full Tilt Poker (FTP).

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

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

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

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

Defense of Retaliatory Discharge Case Results in Precedent-Setting Ruling

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

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

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

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

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

Protecting an Advertiser from an Affiliate Marketer’s Actions

Sometimes, even a company’s best efforts to comply with the law can’t protect them from liability. This was the case for our client, an advertiser, which promoted its own e-cigarette offer. An internet-based affiliate marketer who marketed our client’s products sent an unsolicited text message to a consumer. Our client recognized the potential legal problems associated with the affiliate’s actions and immediately shut down the relationship. Nonetheless, the affiliate’s action exposed our client to liability in the form of a putative class action lawsuit that was filed in U.S. District Court, Northern District of Illinois. This class action lawsuit, brought under the TCPA, had the potential to cost our client a significant amount of money.

Ifrah Law knew we needed to act quickly, before the case escalated into a class action that would be large enough to bankrupt our client. We were able to demonstrate that the third party vendor’s actions were not authorized or condoned by our client and therefore, we were able to resolve the matter for very little money, before ever answering the complaint. To avoid these types of problems in the future, we subsequently drafted strong contract and terms and conditions for our client’s third-party publishers, which would indemnify our client from future liability for its affiliate’s unauthorized actions.

Representing an Online Poker Operator in Nevada Federal Court

When a leading online poker company was sued in Nevada by a prominent poker professional and former company endorser, the company put all their chips on the experience of Ifrah Law.

The plaintiff was one of the first women to place highly in a poker tournament. She claimed that during the online company’s early years she was offered a one percent ownership in the firm in exchange for her promotional efforts as a “celebrity player.”

She also claimed that the ownership stake was worth $100,000 a month for every month that the company was making distributions. She sued for breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, unjust enrichment, and fraud. Her attorneys estimated damages to be $40 million, with the additional possibility of punitive damages.

Ifrah Law won a dismissal in the trial – and won three more move to dismiss orders in subsequent actions. The initial motion to dismiss contained allegations that the player’s “typhoon of litigation” was fueled by a “thirst for publicity.”

(Cycalona Gowen v. Tiltware LLC, et al. – Case No.: 2:08-CV-01581-RCJ-RJJ (United States District Court for the District of Nevada))

Obtaining Dismissal of Fraud Claims Against Online Gambling

In the first class action suit brought by former U.S. poker players, Ifrah Law went all in and won a big pot on behalf of an online poker company and individual poker pros that were defendants.

The suit involved complex fraud issues arising out of claims of Racketeer Influenced and Corrupt Organizations Act (RICO) violations. These issues resulted from the plaintiff’s demand for return of U.S. player funds held in online gambler accounts after Black Friday. On that day in 2011, the U.S. government shut down the three most popular online poker sites. More than two million citizens were playing our national card game online, and they were confronted by the seals of the FBI and Department of Justice and a notice of domain name seizure as well as blocked access to each player’s account balance.

The lawsuit demanded return of plaintiff’s money under a conversion claim, and also accused the defendants of racketeering, which would have entitled the plaintiffs to three times the damages owed.

In a closely watched argument in the U.S. District Court for the Southern District of New York, Ifrah Law held all the right cards and won a dismissal of all claims against the poker pro defendants, as well as all RICO claims against the corporate defendants. The judge’s order was a big win for the individual defendants in this case, but also a victory for individual defendants in other class action cases pending in New York.

(Segal et al v Bitar et al. 1:11-cv-04521-LBS (S.D.N.Y.))

A Favorable Settlement for an Online Merchant

A dispute arose between an e-commerce merchant and an interactive advertising agency involving over $2.5 million in damages. The merchant retained Ifrah Law and we utilized our experience representing individuals and corporations in the online marketing arena to negotiate a favorable settlement for the e-commerce merchant and obtain a dismissal of the case.

The ad agency was a large network that rolled out a sales campaign for the merchant’s product. They claimed they were owed commissions from the merchant’s sales and brought a case against our client and sued the individuals associated with the company, as well.

We argued that they you couldn’t assess liability against individuals for the liability of the company unless there was a specific basis to do so and we moved to dismiss. The advertising agency challenged us, and we won a judgment for the plaintiff as well as for our attorney fees.

Then the advertising agency litigated that result – and lost. The judge found our legal fees to be fair and reasonable.

By the time this wrangling was completed, Ifrah had won a judgment of $250,000 before the actual case had even started. Normally, it’s impossible for a defendant to win legal fees – but not with Ifrah Law.

 

 

Blog Posts
November 20, 2014

Celebrity Endorsements, Online Poker and the FTC

Celebrity Endorsements, Online Poker and the FTC
Last week, without much attention, four new regulations affecting online gaming operations in New Jersey became effective under the authority of the Division of Gaming Enforcement. The rules include changes to directives on funding from social games, requirements for exclusivity, and operator server locations. However, the fourth rule is an addition which deals specifically with... Read More
November 19, 2014

Celebrity Endorsements, Online Poker and the FTC

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Last week, without much attention, four new regulations affecting online gaming operations in New Jersey became effective under the authority of the Division of Gaming Enforcement. The rules include changes to directives on funding from social games, requirements for exclusivity, and operator server locations. However, the fourth rule is an addition which deals specifically with... Read More
November 7, 2014

Report from an Energized Brand Activation Association Marketing Law Conference

Report from an Energized Brand Activation Association Marketing Law Conference
Ifrah Law is a proud member the Brand Activation Association (“BAA”). This week, we attended the BAA’s 36th annual BAA Marketing Law Conference in Chicago.  Just as “Mad Men” reflects the 1960’s era advertising business, this year’s BAA conference demonstrated this generation’s marketing dynamic – where mobile is key, privacy concerns abound, and the Federal... Read More
January 8, 2014

New Year Brings New Plans by the FTC to Take Down Deceptive Weight Loss Advertisers

New Year Brings New Plans by the FTC to Take Down Deceptive Weight Loss Advertisers
New year, new resolutions.  Yesterday, the FTC announced a resolution of its own: to undertake a nationwide enforcement effort to protect consumers against deceptive weight loss claims.  Dubbed “Operation Failed Resolution,” the FTC’s latest enforcement effort seeks to protect consumers who face a barrage of “opportunistic marketers” promising quick ways to shed pounds. According to... Read More
August 29, 2013

A Report From Affiliate Summit East, 2013

A Report From Affiliate Summit East, 2013
Since 2003, online marketers and merchants have been gathering twice a year to take part in the Affiliate Summit Conferences. In recent years, Ifrah Law has become a fixture at these shows, and our associate Rachel Hirsch is not only widely recognized as the face of the Ifrah Law Power Booth station, but also as... Read More
June 28, 2013

CFPB Takes Action Against ‘Abusive’ Acts by Debt-Relief Company

CFPB Takes Action Against ‘Abusive’ Acts by Debt-Relief Company
Recently, the Consumer Financial Protection Bureau, the watchdog agency of the financial industry, has proved that it has considerable bite. Created under the Dodd-Frank act to fill gaps in regulatory coverage, the CFPB’s mandate is to enforce federal regulations that, among other things, restrict “unfair deceptive or abusive acts or practices” in consumer finance. The... Read More
June 23, 2013

Affiliate Marketers Need to Be Aware of the CFTC

Affiliate Marketers Need to Be Aware of the CFTC
Some affiliate marketers have recently gotten involved in the risky world of online trading. Online trading, particularly the trading of binary options, has become an attractive alternative for some affiliate marketers to traditional forms of online marketing. However, those companies that do get involved in this market must be aware of the presence of the... Read More
September 5, 2012

Judge Was Right to Reject Plea Deal That Included Appellate Waiver

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Earlier this summer, a U.S. district judge in Denver rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The decision sheds new light on the extent of prosecutorial power in the practice of negotiating plea agreements and the need for checks and balances to... Read More
July 25, 2012

‘Your Baby Can Read,’ Targeted for Dubious Ads, Closes Its Doors

‘Your Baby Can Read,’ Targeted for Dubious Ads, Closes Its Doors
After nearly a decade of persuading hundreds of thousands of parents that their babies were geniuses, the popular company, Your Baby Can Read, is shutting its doors. Its demise is the result of an FTC investigation prompted by the Campaign for a Commercial-Free Childhood advocacy group, which challenged claims by the company that newborns have... Read More
Crime in the Suites | FTC Beat | Ifrah on iGaming