Michelle Cohen on iGaming Marketing: Five Critical Steps When Regulators Call

By: Ifrah Law

Michelle Cohen guides and defends Ifrah Law’s iGaming clients when government agencies launch enforcement actions alleging unlawful gambling, advertising, and marketing practices. Michelle has decades of experience advising and defending organizations facing these and other claims related to consumer protections and privacy. When faced with cease-and-desist orders and costly litigations, Michelle’s clients count on her credibility, diligence, and deep knowledge of iGaming advertising and consumer protection laws to successfully negotiate with Federal Trade Commission (FTC) officials, state attorneys general, and gaming regulators.

Playing Defense on Multiple Fronts: What Federal and State Regulators Are Looking For

The FTC has long sought to protect consumers by initiating enforcement actions that challenge companies’ advertising claims. Today, many state attorneys general and gaming regulators are also closely watching companies’ marketing activities – particularly those of gaming, iGaming, and gaming-adjacent businesses. They are scrutinizing operators’ advertising, social media posts, and other marketing tactics to validate such claims as monies that players might earn, levels of risk, and money paid to endorsers and influencers for their brand support. For iGaming companies, the question is no longer whether scrutiny is coming; it’s whether they will be ready when it does.

Michelle’s best work happens before a regulatory demand ever arrives. She helps clients identify and address potential compliance gaps before they can escalate into formal government investigations and actions. Her aim is to organize clients’ relevant facts – clear disclosures and substantiation of claims, marketing policies, and processes – long before a federal or state official comes knocking.

“Across my 30-year legal career I’ve been focused on advertising and marketing. I love finding creative ways for organizations to reach their customers, prospects, and the public while complying with the laws and regulations that aim to protect people’s interests.”

Rapid Response: Critical Steps For Weathering an Unexpected Regulatory Intervention

When an iGaming operator or gaming-adjacent business receives a subpoena or cease-and-desist order from a government regulator, most operators’ instinct is to slow down — huddle the team, pull documents, figure out what happened. Michelle views this slow, measured process as a missed opportunity at best, and a major mistake at worst. She advises clients to consider these actions:

• Contact legal counsel right away – “Inform your internal counsel, if you have one, and if not, talk with your outside counsel. In the gaming industry, you want counsel that’s experienced in these specific types of matters, and that has relationships with the gaming regulators and attorneys general.”

• Reply promptly to the regulator – “Once the letter is received, the clock starts ticking. Make it a priority to reply – confirm that you’ve received the request and are committed to cooperating in responding but recognize you may want to seek to limit/clarify the requests.”
• Ask for a deadline extension – “It takes time to put together a thoughtful response to the regulator, partnering with counsel, and gathering facts and documents. If the deadline for compliance is relatively soon, you can often negotiate for additional time.”

• Get the right team together – “This isn’t a one-person job. You’ll need the right experts from your legal department, operations, IT, and other areas to work with your counsel to provide the very best team response.”
• Maintain a positive tone – “Show the regulators that you’re taking this seriously. Be responsive rather than immediately combative. Setting the right tone can really go a long way with your negotiations. Operators who adopt an adversarial posture can quickly make their situation deteriorate.”

MVP HIGHLIGHT REEL

Showing Their Cards: Prompt Engagement with Regulators Defuses Cease-and-Desist Notice

A state regulator issued a cease-and-desist order to an iGaming company, claiming that it was operating unlawfully by providing a service without requisite licensing. The operator called Michelle immediately. After analyzing the relevant laws, statutes, and industry background Michelle concluded that the client was operating legally – and was prepared to prove it.

Michelle crafted a strong written response to the notice, citing case law and relevant client business practices. She then met with representatives of the state’s gaming regulator and attorney general, reviewing case law and statutes in depth, and chronicling the client’s extensive background analysis before launching its business and its diligence in maintaining compliance controls since then.

The discourse among the parties was direct and highly productive. Over the ensuing years, the client has continued to operate, with no further litigation or adverse actions from state regulators.

Sharpening the Picture: Narrowing Subpoena’s Scope to Reduce Litigation Risk

One western state has become a particularly aggressive player in iGaming enforcement, embracing a very broad interpretation of its gaming regulations. Accordingly, the state’s attorney general has issued several Civil Investigative Demands, a type of complex subpoena, to iGaming companies operating there. These CIDs are extremely broad, demanding disclosure of services offered, customer data, state-specific revenues, advertising practices, and marketing incentives and gifts.

Michelle has helped several Ifrah Law clients respond effectively to these CIDs. She endeavors to narrow the scope of the state’s subpoena, as appropriate, by clearly and compellingly telling the client’s story to the State Attorney General’s office. In a recent case, the AG responded to Michelle’s argument by agreeing to a narrower subpoena scope. The result: a correct resolution that minimized the ultimate litigation risk.