Are Investors Lining Up Behind Another and Better Bitcoin?

We have written previously about Bitcoin, the new form of “peer-to-peer” currency whose proponents expect to be a game-changer in the world financial markets. It’s not clear yet what Bitcoin’s ultimate destination will be, as the currency has had a lot of scrutiny, and undergone a tremendous amount of volatility, lately.

In a recent 24-hour period, the value of a single Bitcoin on the largest Bitcoin exchange, Mt. Gox, was high as $266 and as low as $105. It’s hard to sustain a business model with that incredibly high volatility factor.

However, according to TechCrunch, angel investors and venture capitalists remain “hungry to invest in the ecosystem surrounding the decentralized digital currency.” In other words, investors want to create a different, and possibly superior, Bitcoin.

That currency is known as OpenCoin, which wants to create a decentralized global currency yet prefers to stay away from the moniker of “another Bitcoin.” The company behind OpenCoin has raised an undisclosed amount of venture-capital money to expand the open-source code behind Ripple, which is a virtual currency and payment system that aims to make it easy and affordable for anyone to trade any amount in any currency.

OpenCoin hopes to clear its transactions within minutes; to handle dollars, euros, and other currencies seamlessly; and to solve BitCoin’s security issues.

Some observers think OpenCoin has a greater chance of success than Bitcoin because it has been carefully conceived rather than just springing up from the minds of a few hackers, and because it doesn’t have a history of volatility and of facilitating illegal payments.

But it’s still a very long way before any of these artificial currencies catches on. We will be watching them carefully. We hope that financial regulators, both in the United States and world-wide, realize that these currencies can do a great deal of good, and that the Treasury Department doesn’t conclude that they are nothing more than vehicles for money laundering. Treasury’s recent announcement that dealers in Bitcoin-like currencies must obey money-laundering laws seems like an acceptably moderate approach.

Judge Will Probably Rule Soon on N.J. Sports Betting Plan

New Jersey will likely learn within two weeks if it will be able to move forward with its plan to implement sports betting in the state’s casinos and racetracks.

U.S. District Judge Michael Shipp heard oral arguments in Trenton on February 14, 2013, on the constitutionality of the 1992 Professional and Amateur Sports Protection Act (PASPA) and will decide the initial fate of the bill passed last year by the state legislature to legalize sports betting in the state.

The implications of this ruling will be far-reaching, since a decision in favor of the state would remove the biggest hurdle for New Jersey and other states that wish to implement sports betting plans. A favorable ruling could bring live sports betting to New Jersey within a few months.

In December, the court heard oral arguments on the plaintiffs’ standing to bring the suit and found that they did have standing. Next, the U.S. Department of Justice (DOJ) announced its intention to intervene and join the four major sports leagues and the NCAA as plaintiffs in the case. The DOJ filed a brief on February 1 defending the constitutionality of PASPA.

Paul Fishman, the U.S. attorney for the District of New Jersey, argued on behalf of the DOJ at the hearing and emphasized that PASPA was intended to stop the spread of state-sponsored gambling. Fishman’s arguments focused on the constitutional soundness of the statute, emphasizing that as long as there was a rational basis to pass the law, it was a valid exercise of Congress’s power under the Commerce Clause.

Ted Olson, the former United States Solicitor General who was arguing on behalf of the state, opened his arguments by making reference to the jobs and revenue that legalized sports betting would create for New Jersey. Olson also emphasized how state voters, the legislature, and the governor had all backed a law last year that would permit sports wagering but are prevented from implementing the law because of PASPA.

Fishman ended his initial arguments by discussing a 1991 memo written by the DOJ when PASPA was under consideration in Congress – a memo that the DOJ did not address in its brief on the constitutionality of PASPA. This memo noted that determinations of how to raise revenue are typically left to the states and since PASPA was seeking to regulate how states generate revenue, “it raises federalism issues.” Fishman tried to downplay the significance of the letter and argued that the “federalism issues” that the letter refers to were taken out of context.

The arguments covering the anti-commandeering principle, which prohibits the federal government from imposing duties on state legislators or executive officials to carry out a federal initiative, seemed to be of particular interest to Judge Shipp. Both sides argued at length about any costs or burden that New Jersey has been forced to take on in order to be in compliance with PASPA. Jeffrey Mishkin, representing the sports leagues, argued that for anti-commandeering issues to arise, the law must require some affirmative conduct from the state and that PASPA does not compel New Jersey to do anything. Olson also pointed out that there are costs and burdens imposed on New Jersey for complying with PASPA. Olson emphasized that the federal government should not be allowed to impose its will on the state, especially since Nevada has essentially been given a monopoly on single sports game betting under the statute.

The decision in this case will likely be appealed to the U.S. Court of Appeals for the Third Circuit. That court has heard prior appeals involving PASPA, but none of those cases addressed the issue of the constitutionality of the statute. The Supreme Court has never addressed PASPA.

It remains to be seen how Judge Shipp will rule in this case. State Sen. Raymond Lesniak, who has spearheaded New Jersey’s efforts to bring sports gambling to the state, has stated that sports betting could be live within 60 days if New Jersey receives a favorable ruling in the case. We support New Jersey’s efforts to legalize sports wagering in the state in the interests of helping its economy and citizens.

What Lessons Can Be Learned From Tragic Death of An Internet Activist?

There can be no dispute that the death of Aaron Swartz – the Internet activist who took his own life on Friday, January 11 – is tragic. There can also be no dispute that the grief and anger his family feel is very real. The question is what the appropriate focus for that anger should be in order to give meaning to Swartz’s life – and death.

Swartz, who had blogged about his own battles with depression, was a leading activist involved with the movement to make information freely available on the internet, and is credited with helping to lead the protests that ultimately defeated the Stop Online Piracy Act (SOPA) – a statute that would have significantly broadened law enforcement powers in policing internet content that may violate U.S. copyright laws.  Swartz’s suicide came as he faced federal charges of wire fraud and computer fraud arising from his alleged efforts to make freely available an enormous archive of research articles and similar documents offered by JSTOR, an online academic database, through computers at the Massachusetts Institute of Technology. The allegations in the indictment he faced were a tribute to Swartz’s computer acumen, describing the technological means that Swartz had used to access and download approximately 2 million documents from the JSTOR subscription archive by unauthorized access to the computers at MIT.

Swartz’s family has released a statement in which they blame his death on the decision by federal prosecutors in the District of Massachusetts to pursue “an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.” Contrary to the family’s assertion that the prosecution caused Swartz to take his own life, we suggest that the appropriate focus here is not on prosecutorial overreaching, but rather on Congress’s decision to criminalize certain conduct and to set sentencing guidelines that would likely have led to imprisonment if Swartz were convicted.

It is true that the maximum statutory sentence of imprisonment for the wire fraud charge in the indictment against Swartz is 30 years. But there is no question that the likely sentence that Swartz would have faced if convicted of wire fraud and/or the other charges in the indictment would have been far less than that. The advisory range under the U.S. Sentencing Guidelines would have depended on the loss (or intended loss) suffered, among other things, but Swartz likely faced (based on back of the envelope calculations) a sentence of no more than two to four years in prison – a fact that he almost certainly knew from the lawyer who represented him. While four years in federal prison is significant, it is much less than the 30-year sentence mentioned by the family.

It is also not entirely clear that the prosecutors’ decision to pursue charges against Swartz was unreasonable. This is not just a case alleging the distribution of materials protected by copyright law – an issue on which there is fair debate as to whether conduct should be criminalized. Rather, in this case, Swartz was accused of having accessed the MIT computer systems and the JSTOR subscription (for which MIT paid approximately $50,000) through illicit means. There were also allegations that Swartz’s computer intrusions crashed some computers and caused some legitimate subscribers to the JSTOR service to lose access for a period of time. Thus, assuming the truth of the allegations in the indictment, the alleged crime here was not entirely victimless. Moreover, everyone agrees that illegally accessing a computer system is not conduct that should be condoned. For these reasons, Swartz’s family’s attacks on the prosecutors as overreaching – while understandable given their grief and anger – may actually be misplaced.

On the other hand, there is a fair question whether the conduct with which Swartz was charged is really the kind of conduct for which we need to send a person with no other criminal record to prison for a period of years. That, however, is not an issue of decision-making by the prosecutor’s office. Rather, that is a question for Congress, both in terms of establishing criminal liability and in terms of setting astronomical maximum statutory sentences (which increased the base offense level for this crime). And it is a question for the U.S. Sentencing Commission, which has raised Guidelines levels over the years. It is also a question for Congress in terms of setting Guidelines scoring that increasingly fails to reflect any expertise of the Sentencing Commission, but rather reflects only a congressional mandate to support increasingly harsh advisory sentences under the Guidelines for white-collar offenses.

Prosecutors may have been justified in seeking charges against Swartz for his conduct. But if his family, friends and supporters wish Swartz’s death to have as much meaning as his life, they should focus instead on the decisions that created the harsh potential penalties that Swartz faced.

New DOJ Guide on FCPA Provides Guidance, Gives Statute a Broad Reading

After much uncertainty and discussion, the U.S. Department of Justice has finally issued official guidance regarding who qualifies as a “foreign official” under the Foreign Corrupt Practices Act (FCPA). This guidance was published on November 14, 2012, in the Resource Guide to the U.S. Foreign Corrupt Practices Act, a broad guide to enforcement and interpretation of the FCPA that the DOJ issued jointly with the Securities and Exchange Commission.

As expected based on the DOJ’s previous interpretations of the term, the Guide provides a broad definition of “foreign official” by stating that the term encompasses “officers or employees of a department, agency, or instrumentality of a foreign government.” This definition imposes few restrictions on whom the Department will consider a “foreign official” and stretches the term far beyond its obvious and limited meaning.

Much of the confusion regarding “foreign official” status arose from government-affiliated entities that fall in the hazy middle ground between government agencies and private entities. Often this uncertainty surrounds services such as telecommunications, banking, and the aerospace industry, in which a government has some degree of ownership in the entity but may not completely own or control it. In those cases, the Guide clarifies that although the DOJ uses a multifactor test to determine whether an entity is a government instrumentality, it is most likely to pursue cases in which a government has a majority ownership stake. However, it acknowledged that there may be rare cases in which a government that owns only a minority stake nevertheless controls the entity through veto power, political appointees, or other means, in which case it will still be considered a government instrumentality.

Even though the very term “official” denotes a certain degree of authority within an organization, the Guide makes clear that the FCPA “covers cor¬rupt payments to low-ranking employees and high-level officials alike” in government departments, agencies, or instrumentalities. Therefore, corrupt payments to anyone within these organizations will bring the case within the FCPA’s bounds, regardless of their status within the organization or their ability to control or influence the instrumentality.

Although the new Guide states that its advice is “non-binding, informal, and summary in nature,” it is the best indication of how the DOJ plans to implement and enforce the FCPA. So while the content of the Guide essentially affirms the stance that the DOJ has assumed in existing cases, it does provide a foundation of guidance for organizations to rely on in their contacts with foreign entities. Unfortunately, this guidance will largely serve to dissuade companies from creating beneficial partnerships for fear that they might accidentally implicate FCPA concerns. As we have discussed previously on this blog, we hope that the courts will weigh in on this issue and find a more reasonable interpretation of what constitutes a “foreign official.”

Will High Court Consider Key Issue Defining Prosecutorial Misconduct?

The Supreme Court will soon be considering whether to take up an interesting question involving when monetary sanctions may be imposed for prosecutorial misconduct. More than 50 former federal judges and U.S. attorneys are pushing to get an 11th Circuit Court of Appeals ruling from last year overturned. In early August, the former judges and prosecutors signed onto an amicus brief that urges the Supreme Court to grant certiorari in United States v. Shaygan. The defendant is appealing the appeals court’s overturning of a lower court’s award of more than $600,000 in attorneys’ fees to him after the unsuccessful prosecution of his case.

Shaygan, a Miami doctor, was charged with trafficking illegal drugs following the overdose death of a patient. Events leading up to his trial demonstrated serious ethical questions about the prosecutors’ handling of the case. For instance, after Shaygan’s counsel moved to suppress testimony that was illegally obtained, in an act of retaliation the prosecution filed a 141-count superseding indictment. The prosecution initiated a collateral witness-tampering investigation in what defendants saw as a bad-faith effort to disqualify petitioner’s counsel on the eve of trial. And, in a “knowing and intentional” violation of court orders and discovery obligations, the prosecution withheld material information from both the court and the defendant. These actions led the trial court to impose sanctions because the prosecutors’ misconduct constituted “conscious and deliberate wrongs that arose from the prosecutors’ moral obliquity and egregious departures from the ethical standards to which prosecutors are held.”

The government appealed to the 11th Circuit, where a sharply divided panel overturned the trial court. The circuit’s rationale was based upon its interpretation of the statute,the Hyde Amendment, that provides for the award of attorneys’ fees and other litigation expenses “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.”

The circuit ruled that sanctions were not appropriate because the superseding indictment was objectively valid. And if the underlying (or superseding) indictment could be deemed objectively reasonable, the prosecution could not be held vexatious or frivolous and thus attorneys’ fees were not merited. See our earlier discussion of this issue in this blog.

The court’s holding raised the eyebrows of many former federal judges and prosecutors as well as scholars. Their main contention appears to be the 11th Circuit’s reading of the clause “vexatious, frivolous, or in bad faith.” The amicus brief filed on behalf of the former judges and prosecutors raised two main arguments for why the 11th Circuit’s decision was wrong: (1) based upon the canons of statutory construction, sanctions under the Hyde Amendment are appropriate when prosecutors act in subjective bad faith, even if an indictment is supported by probable cause; (2) acknowledging a subjective standard helps judges control their courtrooms and provides a necessary tool to address prosecutorial misconduct.

The first argument focuses on the “or” in the Hyde Amendment’s provision for sanctions where a prosecutor’s position is found to be “vexatious, frivolous, or in bad faith.” The amici argue that the disjunctive “or” separates the “bad faith” prong from the “vexatious” and “frivolous” prongs, indicating that bad faith can serve as an alternative basis for relief under the Hyde Amendment. Their reading of the statute, they argue, “comports with our basic principles of criminal justice. Our system’s greatness rests, in part, on our insistence that the process be conducted in a principled, clean manner. Thus, for example, we permit the guilty to go free when the evidence against them was obtained in violation of their Fourth Amendment rights. We suppress coerced confessions, even when they bear every indicia of reliability. And we do not permit the prosecution even of a guilty person on the grounds of that person’s race. ”

The amici’s second argument emphasizes the need to provide judges with control over their courtrooms, and the need to impose appropriate sanctions for prosecutorial misconduct. To rein in the overzealous, overreaching, or rabid prosecutor, the Hyde Amendment sanctions provide an important mechanism to restore control. The amici note that other sanctions, such as complaints with bar associations, have proved ineffective over the years and that prosecutors are immune from most lawsuits relating to their official conduct.

It remains to be seen whether the Court will take up the Shaygan case — the chances of the Court ever granting certiorari are pretty slim. But a strongly-worded amicus brief from more than 50 former prosecutors and judges and a notably sharp divide in the 11th Circuit could persuade the Court.

Eleventh Circuit Case Will Test DOJ’s Broad Reading of FCPA

The Foreign Corrupt Practices Act (FCPA) prohibits the bribing of foreign officials. While that may seem like a straightforward concept, previous posts on this blog have shown that the precise definition of who constitutes a “foreign official” has long been the subject of much uncertainty, debate, and litigation.

The FCPA defines a “foreign official” as an “officer or employee of a foreign government or any department, agency, or instrumentality thereof.” The Department of Justice takes a broad view of this definition, consistently using the FCPA to prosecute individuals who allegedly bribed employees of state-owned companies that act merely as commercial entities, such as utility companies, rather than those that act as a sovereign.

For the first time, a U.S. court of appeals is considering a case that tests this question. An appeal in the Terra Telecommunications case, previously discussed in a post on this blog, is currently pending before the U.S. Court of Appeals for the 11th Circuit. The defendants in that that case, Joel Esquenazi and Carlos Rodriguez, are former executives at Terra Telecommunications. They were convicted of bribing officials at the state-owned telecommunications company Haiti Teleco.

Prosecutors successfully persuaded the trial court that Haiti Teleco was an “instrumentality” of the Haitian government, thereby making its employees “foreign officials.” However, on appeal the defendants are asking the court to find the word “instrumentality” in the FCPA unconstitutionally vague and ambiguous. The Justice Department filed a brief on August 21, 2012, arguing for a broad reading of the term “foreign official.”

The defendants’ argument is not novel. For years, businesses and legal groups have been seeking guidance on the definitions of “foreign official” and “instrumentality” under the FCPA. In February, a coalition of businesses and organizations sent a letter to the DOJ seeking clarification of those terms. The letter highlighted the concerns that without proper guidance, businesses suffer uncertainty and risk when trying to comply with the FCPA because the authorities take a “highly fact-dependent and discretionary approach” in interpreting the terms.

Despite the DOJ’s long-standing position that the FCPA is not vague, it has announced that it will release new guidance this year on the act’s criminal and civil enforcement provisions. While the guidelines will provide clarification and guidance to businesses, they will almost surely perpetuate the DOJ’s absurd position that it can pursue employees of commercial entities merely because the companies are state-owned. This is clearly not what Congress intended in enacting the FCPA. Last year, FCPA expert Michael Koehler pointed out that the DOJ’s legal interpretation of “foreign official” is “the functional and substantive equivalent of the DOJ alleging that General Motors Co. or American International Group Inc. is an ‘instrumentality’ of the U.S. government (given its ownership interests in these companies) and that all GM and AIG employees are therefore U.S. ‘officials.’ ”

We hope that the appeals court will accept these arguments and will find that this case does not implicate the issues that the FCPA was designed to address. The courts need to keep the DOJ in check and prevent it from abusing its authority by prosecuting individuals under statutes that Congress did not intend to apply to them.

Grassley’s Case Against DOJ Stance on Financial Fraud Is Vastly Overstated

In recent weeks, Sen. Charles Grassley (R-Iowa) has criticized the Department of Justice’s handling of executives that some argue are responsible for the financial crisis.

Sen. Grassley, the ranking minority member of the Senate Committee on the Judiciary, held a hearing in February that looked at mortgage fraud, foreclosure abuse and lending discrimination practices. During his opening statement at that hearing, Sen. Grassley stated, “The department’s message is that crime does pay. They also invite crimes of this sort against similar future victims. How are the department’s enormous resources being used?”

In his statement at the hearing, Sen. Grassley expressed anger that no criminal charges were brought by the DOJ Criminal Division against former Countrywide Financial CEO Angelo Mozilo. Sen. Grassley stated, “The Justice Department has brought no criminal cases against any of the major Wall Street banks or executives who are responsible for the financial crisis.” He concluded his statement by saying, “All that matters is results – prosecutions and conviction. The American people are still waiting.”

Grassley was also disappointed with the terms of the Bank of America/Countrywide Financial settlement with DOJ of $335 million, which was the largest settlement of its kind in DOJ history. According to Sen. Grassley, the settlement will provide only $1,700 per victim, which he said will do very little, if anything, to prevent these homeowners from defaulting on their mortgages. Sen. Grassley noted in his statement to the Judiciary Committee that one third of all Countrywide mortgages ended in default and said that this settlement was a “mere cost of doing business.”

A spokesman for DOJ responded to the statement from Sen. Grassley by stating, “The Department of Justice, through our U.S. Attorney’s Office and litigating divisions, has brought thousands of mortgage fraud cases over the past three years, and secured numerous convictions against CEOs, CFOs, board members, presidents and other executives of Wall Street firms and banks for financial crimes.”

In response, Sen. Grassley wrote the letter to DOJ asking for details on the “thousands of mortgage fraud cases” that the Department of Justice has brought. The full text of the letter is available here.  Sen. Grassley asked DOJ to respond to his request by March 31. A DOJ spokesman has said the agency is reviewing the letter. The reply has not yet been received.

Sen. Grassley has taken a very strong stance that may not be justified. The Department of Justice has created task forces and has devoted a wealth of resources to investigating crimes associated with the financial crisis, such as mortgage fraud, and in many cases has elected not to prosecute. Assistant Attorney General Lanny Breuer told CBS that he believes that the Department of Justice was “bringing every case that we believe can be made.”

Some argue that the lack of prosecutions is evidence that criminal behavior may not have taken place or that there is insufficient evidence to prove it. There was surely some poor business decision making, but simply because there was a loss does not mean that there criminal intent or that a crime has occurred.

Sen. Grassley’s letter is also ignoring the fact that there have been dozens of civil cases brought by the government against firms and individuals involved in mortgage fraud and other abuses associated with the financial crisis. Over $2 billion in penalties have been ordered in connection with the SEC’s investigations alone.

There is no evidence to support the outrage that Sen. Grassley expressed in his letter. This type of grandstanding relates to an area of the law that is already garnering sufficient attention from law enforcement. Those individuals who have been charged and convicted are receiving more than adequate sentences for their actions, and those who have not been charged, in all probability, did not deserve to face criminal sanctions.

Will Facebook Become a Key Player in U.S. Online Gaming?

Arguably the most popular social media platform in the world, Facebook appears poised to expand its ever-growing empire into the online gaming industry. Rumors circulated in early December 2011 that Facebook was developing a platform for its United Kingdom users to gamble online for real money, perhaps even as soon as in the first quarter of 2012. With millions of users worldwide, Facebook would be poised to accomplish what other online gaming sites could only achieve at a much smaller scale — reaching a large and constantly growing database of players. And with intrastate poker gaining traction in the United States, Facebook, and the new technology that it is developing, may end up as a leading player in the online gaming industry in the United States if and when legalization arrives.

Facebook is no stranger to online gaming. For some time now, it has offered its users the option of playing online games for Facebook credits as an alternative to real money. Earlier this year, Facebook changed its advertising policies, allowing online gambling companies to advertise in jurisdictions where such services are permitted. In the past, Facebook has been extremely strict when it comes to advertising online gambling business on its website. Now, Facebook’s Advertising Guidelines web page has a specific online gambling clause under the Gambling and Lotteries subsection of the Ad Content section, which reads: “Ads that promote or facilitate online gambling, games of skill or lotteries, including online casino, sports books, bingo, or poker, are only allowed in specific countries with prior authorization from Facebook.”

Initiating its launch of its real-money online gaming platform in the UK seems to be the most logical choice, given that the UK boasts one of the most permissive online gambling markets in the world. It appears from available information that Facebook is looking to award eight licenses to online gambling operators in the existing market. Sources for egrmagazine.com have reported that Facebook has drawn up preliminary licenses for UK-based operators, including Gamesys (which owns sites like jackpotjoy.com, botemania.com and iwi.com) and online casino, poker, and bingo gaming giant 888 Holdings. If the UK deal goes through, it will likely be a test run other countries, opening up an entirely new platform for operators with outreach to a wider market and database of players than ever before.

As Facebook “befriends” the online gaming world and vice versa, the question becomes whether the U.S. will ever appear on that friends list. With Nevada recently becoming the first state in the country to adopt online gaming regulations and the Justice Department recently changing its stance on the legality of Internet gaming under the Wire Act, new hope has arisen that there may be a market for online gaming in the U.S. after all. Of course, Facebook would need to overcome a few hurdles before launching its online gaming platform in any country, including implementing a system to keep minors from accessing the service. Nevertheless, if rumors of a launch are true, Facebook’s new online gaming platform will immediately give it a dominating position in the market. Let’s just hope the United States does not deny that friend request.

New DOJ Opinion Paves Way to Legal Online Poker

On December 23, 2011, the U.S. Department of Justice revealed that it has reversed a long-held position by stating that the Wire Act applies only to sports betting. This marks a major change in policy for DOJ, which has long contended that the Wire Act prohibits all forms of Internet gambling, including poker.

Late that day, the DOJ released a 13-page legal opinion dated September 20, 2011, written by Assistant Attorney General Virginia Seitz in response to a 2009 request by New York’s lottery division and the Illinois governor’s office to analyze the application of the Wire Act to their plans to use the Internet and out-of-state processors to sell lottery tickets. The opinion noted that “nothing in the materials supplied by the Criminal Division suggests that the New York or Illinois lottery plans involve sports wagering, rather than garden variety lotteries. Accordingly, we conclude that the proposed lotteries are not within the prohibitions of the Wire Act.”

The opinion states, “[W]e conclude that interstate transmissions of wire communication that do not relate to a ‘sporting event or contest,’ 18 U.S.C. § 1084(a), fall outside of the reach of the Wire Act.”

For years the DOJ’s Criminal Division has held that the scope of the Wire Act went beyond sports betting. This had a significant impact on state lotteries and online poker companies that operated offshore. DOJ has now rejected that view, writing, “We conclude that the Criminal Division’s premise is incorrect and that the Wire Act prohibits only the transmission of communications related to bets or wagers on sporting events or contests.”

DOJ’s position in the past that online poker violated the Wire Act led to guilty pleas by several defendants to Wire Act violations in connection with their involvement with online poker. In 2008, Anurag Dikshit, a co-founder of Party Gaming, an online poker company, pled guilty to violating the Wire Act and agreed to forfeit $300 million. He was sentenced to one year of probation.

The opinion could allow for states to cooperate with each other on online gambling that is legal in the individual states. The Nevada Gaming Commission recently approved regulations that would allow for implementation of online intrastate gaming, but critics have stated that there may not be a large enough population within the state to sustain the games. However, after this opinion it becomes possible for states that have legalized intrastate online gambling to cooperate to allow for larger pools of players.

Intrastate online gambling is now legal in just Nevada and Washington, D.C., though it has not yet began to be implemented in D.C. This ruling may serve as an impetus for many states to follow.

This opinion could increase legislative momentum at the federal level to legalize online poker. One primary concern in Congress has been the uncertainty of the application of the Wire Act to online poker. At a House subcommittee hearing in October, some testimony focused on whether the Wire Act applied to online poker, which was a primary concern of the subcommittee. Now that it is clear that the Wire Act does not apply to online poker, one of the major hurdles has been removed.

Federal legislation was introduced this summer by Rep. Joe Barton (R-Tex.), but thus far the bill has not made it out of subcommittee. After the second subcommittee hearing on the issue of online poker, House Energy and Commerce Committee Subcommittee on Commerce Manufacturing and Trade Chairman Mary Bono Mack (R-Calif.) has said previously that no action on the bill would likely occur before the new year.

There is also a possibility that states that could work together to bring interstate online gambling without federal legislation. There does not seem to be any compelling economic reason for federal legislation. However, from a regulatory perspective it may make sense for the federal government to enact legislation to set bars on the regulatory efforts of the states to ensure some level of competency and consumer protection.

This is big news for all online poker players. Many legislators at both the state and the federal level feared that the Wire Act may apply to online poker, but now that it is clear that it does not, a major hurdle to the legalization of online gambling has been removed. We hope that the legislative momentum from the opinion continues to move forward toward legalization.

Ifrah Law Blog Wrap-Up for November 2011

In November 2011, we at Ifrah Law expressed our views on a number of current issues in our blogs, Crime in the Suites and FTC Beat. This post summarizes and wraps up our thoughts from the month.

ACLU Wins FOIA Appeal on Prosecutors’ Use of Cell Phone Location Data

The Justice Department must turn over the names and docket numbers of numerous cases in which the government accessed cell phone location data without probable cause or a warrant.

Read the full post here on the Crime in the Suites blog.

Options for Suing the Federal Government Under Bivens Unlikely to Expand

U.S. Supreme Court argument indicates that the Justices are unlikely to extend Bivens to cover cases against private employees.

Read the full post here on the Crime in the Suites blog.

Judge Imposes 15-Year Sentence in FCPA Case; Appeal to Follow

This case will test the Justice Department’s expansive definition of “foreign official” under the statute.

Read the full post here on the Crime in the Suites blog.

High Court Hears Argument in GPS Fourth Amendment Case

The Justices grapple with issues of search and seizure in an online, wired world.

Read the full post here on the Crime in the Suites blog.

In Appeal of Construction Fraud Case, DOJ Seeks Tougher Sentences

This case, arising from Boston’s “Big Dig” project, will test the limits of a trial judge’s sentencing discretion.

Read the full post here on the Crime in the Suites blog.

Self-Regulation Reigns, for Now, on Consumer Data Privacy Issues

The online advertising industry is inching its way to more comprehensive policies regarding the collection of consumer data.

Read the full post here on the FTC Beat blog.

Google, Microsoft Assume Roles of Judge, Jury and Executioner on the Web

The Internet giants cancel the Web connections of companies that are accused by the government of mortgage fraud but have not been convicted.

Read the full post here on the FTC Beat blog.

New House Hearing Shows Strength of Hill Support for Legal Online Gaming

Many members of Congress remain serious that legal and technical obstacles can be overcome and that legislation can be passed in this area.

Read the full post here on the Crime in the Suites blog.

Convicted of Fraud but Changed Their Lives; Appeals Court Takes Note

A couple committed mortgage fraud back in the late ‘90s. The 7th Circuit gives them sentencing credit for self-rehabilitation.

Read the full post here on the Crime in the Suites blog.

More Big Pharma Companies Cough Up Big Dollars in DOJ Settlements

How high will these settlements go? The government has the power to strong-arm drug companies into settlements. How much will it demand?

Read the full post here on the Crime in the Suites blog.