Ellen Traupman Berge

Partner
Berge Ellen

Ellen Berge has a unique practice advising some of the world’s best-known brands in retail, digital advertising, social media, and fintech on regulatory compliance, licensing, business transactions, commercial disputes, and government investigations and litigation. Ellen co-chairs Venable’s payment processing and merchant services team, which services banks, large processors, independent sales organizations (ISOs), payment facilitators, marketplaces, hardware and software vendors, and merchants involved in payments acceptance and money movement.

An experienced advocate, Ellen has represented various clients in high-stakes government investigations by the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), and state attorneys general.  She has carried a number of investigations through discovery and advocacy to final resolution, including, in many cases, closure without action.  Her clients include retailers, financial institutions, start-ups, nonprofits, and other companies in the automotive, hospitality, cannabis, electronic retailing, fintech, payments, and direct-to-consumer marketing industries. 

Advertising, Marketing, and Sales

In matters related to advertising, marketing, and sales, Ellen’s capabilities include:

  • Compliance counseling on federal and state laws governing automatic renewal programs, membership clubs, subscription sales, lead generation, payments, and compliance with the Restore Online Shoppers’ Confidence Act (ROSCA), the CAN-SPAM Act, the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule (TSR), the Electronic Fund Transfer Act (EFTA), and other federal and state consumer protection laws
  • Responses to civil investigative demands and subpoenas issued by the FTC, the CFPB, the Department of Justice, and state law enforcement authorities
  • Advocacy before the FTC, the CFPB, state consumer protection regulators, the NAD (National Advertising Division), and individual branches of the Council of Better Business Bureaus (BBBs)
  • Development and completion of mock FTC investigations and compliance exams and audits of marketing and sales practices, including the development of compliance recommendations and policies and procedures
  • Review of advertising and marketing materials distributed through television, radio, text, social media, e-commerce, email, and other digital channels, including evaluation of claims substantiation and sales practices
  • Day-to-day support for in-house counsel on questions related to advertising disclosures, social media use, sweepstakes and promotions, telemarketing, texting, email marketing, e-commerce, digital advertising, sponsorships and endorsements, customer service, complaint response management, and consumer protection
  • Coordination and management of foreign counsel for global marketing campaigns and multi-jurisdictional compliance considerations
  • Review and drafting of terms and conditions, sales policies, and other consumer-facing agreements

Payments and Fintech

In matters specific to payments and fintech clients, Ellen offers:

  • Compliance counseling on regulatory issues related to merchant underwriting, Know Your Customer (KYC) requirements, beneficial ownership, merchant monitoring, and high-risk merchant industries, including cannabis, subscription sales, alternative currencies, multilevel marketing, debt collection, and tech support, among others
  • Responses to FTC, CFPB, and state inquiries regarding regulatory compliance with consumer protection laws and money transmission licensing requirements
  • Assistance to fintech companies with relationship agreements, funds flow, banking relationships, consumer-facing terms, and related issues
  • Guidance on compliance training, monitoring, and termination policies related to pricing, services, early termination fees, automatic renewal clauses, and other sales representations
  • Drafting and negotiation of agreements relevant to numerous layers of the payments industry, including bank sponsorship agreements, ISO services agreements, payment facilitator agreements, independent software vendor (ISV) agreements, merchant services agreements, sales referral agreements, independent contractors, and others
  • Responses to card brand inquiries and investigations regarding compliance with card brand rules and applicable laws

Ellen is an active member of the Electronic Transactions Association, co-chairs the Government Relations Committee of the Merchant Acquirers Committee (MAC), and is a frequent writer and speaker on topics related to sales and marketing, merchant services, government investigations, regulatory developments, and other topics.

Ellen also serves as the partner-in-charge of Professional Development and Recruiting at the firm, where she oversees the firm’s Associate Evaluation Committee and other functions related to recruiting and career development. 

Experience

Representative Matters

Government Investigations and Enforcement

  • Defense of an independent sales organization (ISO) in an FTC investigation involving potential liability for assisting allegedly unlawful merchant marketing practices.(Investigation closed without action)
  • Defense of a fintech company in an FTC investigation under the “substantial assistance” provision of the Telemarketing Sales Rule (TSR) for providing services to a merchant allegedly engaged in unlawful telemarketing practices.(Investigation closed without action)
  • Defense of a large payment processor in an FTC investigation involving potential liability for allowing merchants allegedly engaged in unlawful marketing practices to process payments through the processor’s payments platform.(Investigation closed without action)
  • Defense of a large payment processor in a CFPB action alleging that the client assisted in fraudulent debt collection.(Case dismissed with prejudice)
  • Representation of a large payment processor in an inquiry initiated by the United States Postal Inspection Service relating to marketing claims made in mailers sent to merchants.(Investigation closed without action)
  • Representation of an independent sales organization (ISO) in settling an FTC complaint that the ISO engaged in unfair conduct by providing payment processing services to a merchant engaged in allegedly deceptive marketing practices.(Settlement)
  • Defense of a large health and wellness company in an FTC investigation filed under the Restore Online Shoppers Confidence Act (ROSCA).(Settlement)
  • Defense of a subscription-based marketing company in an FTC investigation for a potential contempt action relating to a prior FTC order.(Investigation closed without action)
  • Defense of a dietary supplement company regarding weight loss and similar advertising claims.(Investigation closed without action)
  • Defense of a large nonprofit organization in responding to a state attorney general civil investigative demand (CID) regarding the legality of undercover investigatory reporting conducted by the organization.(Investigation closed without action)
  • Defense of a large dietary supplement company in responding to a state attorney general CID regarding the compliance of trial offers and subscription sales under the state’s automatic renewal laws.(Investigation closed without action)

Insights

Credentials
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Education

  • J.D. magna cum laude Catholic University of America, Columbus School of Law 2002
  • Certificate, Institute of Communications Law Studies Catholic University of America, Columbus School of Law 2002
    • Webmaster, CommLaw Conspectus, Journal of Communications Law and Policy
  • B.A. University of Virginia 1996

Bar Admissions

  • District of Columbia
  • Maryland

Professional Memberships and Activities

  • Brand Activation Association
  • Electronic Transactions Association
  • Merchant Acquirers Committee (MAC)

Recognition
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Ellen is known for her "deep expertise in the financial services industry,” which enables her to help clients “quickly benchmark and solve complex, high-risk issues” (Legal 500, 2021).

  • Corporate INTL, Global Award: Advertising Law – Attorney of the Year, Washington, DC, 2016
  • International Law Office, Client Choice Award, E-Commerce, District of Columbia and nationwide, 2014
  • Legal 500, Media, Technology and Telecoms – Advertising and Marketing – Transactional, 2013 – 2014, 2019 – 2020