Ellen Berge is a partner in the Washington, DC office of Venable LLP. She counsels businesses on legal matters related to the advertising, marketing, and transaction processing of products and services sold through retail and direct-to-consumer marketing channels, including radio, television, direct mail, telemarketing, Internet, affiliate marketing, social media, and mobile devices.
Advertising, Marketing, and Lead Generation
Ms. Berge routinely conducts end-to-end compliance assessments for companies, providing detailed reviews and recommendations relating to a company’s affiliate marketing and lead generation activities through sales, offer terms and conditions, privacy policies, order fulfillment, customer service, and complaint response management. She has drafted numerous internal and external company policies and procedures on matters relating to the use of telemarketing, email, social media, pricing claims, product claims, affiliate marketing, and other marketing strategies. She also drafts, negotiates, and manages contractual relationships between marketers and vendors for marketing, fulfillment, customer care, public relations, applications development, communications and information technology services, and other business arrangements.
For more than a decade, Ms. Berge has been advising companies and nonprofits on federal and state Do Not Call and other telemarketing laws, including the Telephone Consumer Protection Act (TCPA), Federal Communications Commission rules implementing the TCPA, and the Federal Trade Commission’s Telemarketing Sales Rule. She counsels clients on TCPA rules relating to calls and text messages to cell phones, including developments related to defining “autodialers” and obtaining proper forms of “prior express consent” under TCPA and FCC definitions. She has managed TCPA litigation and settled numerous private lawsuits and class actions involving alleged violations of Do Not Call and cell phone calling and texting rules.
Ms. Berge also advises clients on developments regarding Section 5 of the Federal Trade Commission Act, the CAN-SPAM Act, and various legal guidelines for the marketing of “free” offers, the use of negative option marketing and recurring shipping programs, and the use of endorsements and testimonials in advertising and social media. She also counsels clients on the creation and implementation of sweepstakes and contests, including mobile marketing and social media promotions. She works with in-house marketing, regulatory compliance, brand management, and legal teams to manage the creative clearance review process for a number of large national and multinational brands. She handles federal and state government investigations and law enforcement actions relating to advertising and marketing practices.
Merchant Transaction Processing
As an offshoot of her regulatory compliance work for e-commerce companies, Ms. Berge focuses a substantial portion of her practice in the area of payment processing, working with both merchants and payments companies to address the legal, operational, and business challenges of transaction processing. She frequently instructs major international and domestic brand owners and start-up entrepreneurs on merchant processing agreements, payment structures for processing services, interchange and other pass-through fees, chargeback management, fraud prevention, and data security. She has also worked with large product companies to launch direct-to-consumer sales channels by advising on contractual arrangements with billing solution providers, gateways, processors, chargeback managers, and other companies in the chain of transaction processing.
Working together with Venable's experienced and successful litigators, regulatory attorneys, and legislative advisors, she has represented numerous Independent Sales Organizations (ISO) and payment processors in government investigations and lawsuits by the Federal Trade Commission, the Consumer Financial Protection Bureau, and state attorneys general under Operation Choke Point and similar law enforcement initiatives that seek to hold ISOs and processors liable for the actions of their merchants. Based on those experiences, Ms. Berge frequently provides guidance to ISOs, payment processors, and banks on merchant underwriting and risk management policies. She has drafted and negotiated merchant processing agreements between processors and merchants, sales agreements between processors and ISOs, and card network sponsorship agreements between banks and processors.
Ms. Berge is a contributor to the working group that has developed and maintains the Electronic Transactions Association's (ETA) Guidelines for Merchant Underwriting and Risk Management. She serves on the Government Relations Committee of the Merchant Acquirers Committee (MAC) and is an active member of the Payment Processing Committee of the Electronic Retailing Association (ERA).