Defendant files motion to dismiss an indictment in a case where the US claims that credit card merchant accounts on a cannabis platform violate the federal bank fraud statute

• The United States, in a novel case, is attempting to prosecute defendants for federal bank fraud arising out of obtaining merchant accounts to process Visa and MasterCard payments on a large cannabis e-commerce platform in California.
• Cannabis is legal under California state law. 
• The indictment alleges the cannabis merchant or named defendants chose wrong merchant category codes but under the Visa and MasterCard rules merchants don't pick merchant category codes, merchant banks have a non delegable duty under the credit card "network" agreements to make the choice, and there is no merchant category code for cannabis.
• The e-commerce platform at the center of the case is like an “Uber for cannabis” where items can be ordered for intrastate delivery.
• Forcing consumers to use cash instead of credit cards to purchase legal cannabis puts consumers at risk and is at odds with consumer protection in states where cannabis is legal.
• This public interest case can impact the use of credit cards to purchase cannabis in the United States.

On June 26, 2023 the defendant, Hamid Akhavan, filed a motion to dismiss the indictment in the case of US v. Akhavan in the Southern District of New York. Mr. Akhavan is represented in the case by Quinn Emanuel and Rothken Law Firm.

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A summary of defendant’s motion dismiss is below (the complete motion is found here):

On March 9, 2023 a Grand Jury issued a one-count indictment (the “Indictment”) against Hamid Akhavan et al (together, the “Defendants”).  The Indictment alleges generically that “many United States banks are unwilling” to process transactions involving marijuana. (Indictment at ¶1); see also (Indictment at ¶12) (“[M]ost banks in the United States were unwilling to process credit and debit card transactions involving marijuana. . . .”).  It also alleges the Defendants and their California-based company provided a mobile platform to process marijuana-related transactions for California and Oregon purchasers through both debit and credit card payments.  (Indictment at ¶¶ 3–4).   

These payments were allegedly conducted through “payment networks” run by Credit Card Companies like Visa and MasterCard—entities not covered by the bank-fraud statute.  The Government asserts these companies “have rules that prohibit their credit cards from being used for marijuana purchases,” even though this is false in at least the cases of Visa and MasterCard. (Indictment at ¶5) (claiming these policies also apply to many debit cards).  The Government then explains violations of these alleged prohibitions may result in a merchant being terminated from the payment network.  (Indictment at ¶7-8).  Notably, the Government does not and cannot complain of any fraud against the Credit Card Companies.

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The only allegation in the Indictment that appears logically related to how the scheme might operate—although the Indictment does not spell out the connection—is the use of “merchant category codes” that are alleged to be deceptive.  (Indictment ¶9). 

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The most notable aspect of the Indictment is what it does not allege.  First, there is no allegation of intent to cause loss or risk of loss, just as there is no allegation that any loss or risk of loss in fact resulted.  Second, there is no allegation of intent to illicitly obtain funds, as all transactions were in fact legitimate and intended by a consenting, fully informed buyer and seller.  Third, there is not even an allegation that any particular financial player to which the bank fraud statute applies would or could have known to refuse a more properly-coded transaction (using a more accurate code, to the extent one existed), refused a differently-coded transaction, or refused any transaction in the face of perfect information.  Here, the Indictment’s failure to include any specifics about the name or policy of any issuing bank (which are the only statutorily possible victims of the alleged scheme) draws into stark relief its impenetrable vagueness.

Inside the complex world of illegal sports streaming

In a Yahoo Sports article published today the author writes that on "[a] recent Sunday visit to one streaming site, whose owner told Yahoo Sports he transmits around 500 games per day, turned up functional feeds of second-division Guatemalan soccer, Polish women’s basketball, Canadian high school hockey and college baseball. A Tuesday visit to another site presented 49 different links to streams of a Champions League showdown between Liverpool and Bayern Munich.

The evolution is a product of many trends, from the progression of broadband to the growth of social media, to a generation of teens and young adults accustomed to enjoying content of all kinds for free. Together, they have birthed a burgeoning industry, propelled by an accelerating feedback loop. And they have enabled profit."

According to Ira Rothken "Illegal streaming is related to the options that one has to watch legal streams. In order to reduce the amount of illegal streaming, one has to have a society and culture that makes available legal streaming at a reasonable, affordable cost. … I suspect that content owners will provide better experiences, paid experiences, or free authorized experiences for users, and that will then lower the amount of piracy.”

The entire article can be found here.

Apple Faces Multiple Lawsuits Over Slowed-Down iPhones

According to the Wall Street Journal today:

Some five dozen iPhone customers have filed at least 59 separate lawsuits since December accusing Apple of slowing their phones to spur people to buy new iPhones....

Apple settled... [a previous] class-action lawsuit in 2012, agreeing to either pay iPhone 4 owners $15 or give them a free case, according to Ira Rothken, an attorney who represented the plaintiffs. The total potential settlement amount was $315 million...

...Plus, a decision against Apple could require it and other tech companies to be more transparent about how their software or hardware features affect power or performance, said Mr. Rothken, who isn’t involved in this legal action. For years, companies have been able to avoid such disclosures, mainly because customers haven’t demanded them. 

“Whatever affects Apple would affect anyone making battery devices,” Mr. Rothken said.

Read the full story in the Wall Street Journal here.

Kim Dotcom Announces Settlement of a Lawsuit Against the New Zealand Police for Unreasonable Conduct Arising out of a Military Style Raid

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The complaint arose from events occurring in the early morning of January 20, 2012, when 72 police officers including the heavily armed Special Tactics Group (STG) and the Armed Offenders Squad (AOS) descended on the Dotcoms’ family home in Coatesville to make a number of arrests at the request of the United States in an Internet copyright matter. Landing two helicopters just outside the family home, the entry team sprang to action, wielding M4 Bushmaster rifles.

The forces entered the Dotcom home and held the Dotcom family, staff and guests at gunpoint. The officers caused considerable damage to the Dotcom property as they stormed through the house, around the grounds and over the roof. Mona Dotcom, who was 7 months pregnant with twins, and the Dotcom children were traumatised. Neither the Dotcoms nor their guests were allowed to talk to each other or their lawyers for an unreasonable period.

The United States’ basis for the raid, online copyright infringement, is not even a crime in New Zealand.

The lawsuit against the New Zealand Police sought an acknowledgment of the harm caused to the Dotcom family, including the children, Mona and Kim...

Read the Full Press Release Here

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Here is an excerpt of the supplemental brief below the full brief can be found here.

INTRODUCTION

Pursuant to Supreme Court Rule 15.8, Petitioners respectfully file this Supplemental Brief in support of their Petition for a Writ of Certiorari.

Last week, the Sixth Circuit issued two opinions that compound the circuit splits Petitioners have identified surrounding fugitive disentitlement: Unit- ed States v. $525,695.24, Seized from JPMorgan Chase Bank Inv. Account #xxxxxxxx (“Sbeih”), --- F.3d ----, No. 16-3209, 2017 WL 3612006, at *8 (6th Cir. Aug. 23, 2017); United States v. $525,695.24, Seized From JPMorgan Chase Bank Inv. Account #xxxxxxxx (“Salouha”), --- F.3d ----, No. 16-3542, 2017 WL 3613299, at *7 (6th Cir. Aug. 23, 2017). The two opinions address claims by persons residing in Israel and Gaza to property in the United States. The property at issue is allegedly forfeit because it connects to illegal prescription drug sales and money laundering. Sbeih, 2017 WL 3612006, at *1–*2.

In Sbeih (the lead opinion), the Sixth Circuit has vacated and remanded the Northern District of Ohio’s ruling that Sbeih is a fugitive who has requisite intent to avoid prosecution. Sbeih, 2017 WL 3612006, at *1. While purporting to align itself with the Fourth, Second and Ninth Circuits (contra the D.C. Circuit) on the substantive standard governing fugitive disentitlement (the Third Question Presented), the Sixth Circuit actually adopted a position peculiar to it—vacating application of fugitive disentitlement on facts indistinguishable from those the courts below found sufficient to disentitle these Petitioners and espousing a higher burden the Government should face. As to the procedural standard (the Second Question Presented), the Sixth Circuit took pains to instruct the district court that it must develop a fulsome evidentiary record well beyond that adduced in Petitioners’ case, which was decided based on papers alone. As elaborated below, the Sixth Circuit has thus illustrated the need for this Court to bring clarity and uniformity to the procedural and substantive standards governing fugitive disentitlement.