Ellen Traupman Berge

Advertising, Marketing, and Lead Generation

Ellen counsels clients on complex legal issues involving claims substantiation, promotions, sales offers, the use of endorsements and testimonials, influencer marketing, and other advertising issues through online, mobile, radio, television, social media, affiliate marketing, and other channels. She also reviews sales and marketing practices for compliance with laws governing telemarketing, negative options, trial offers, subscription programs, sweepstakes and promotions, loyalty and rewards programs, mobile marketing, text messaging, and email marketing, including:

• The Federal Trade Commission (FTC) Act
• Telephone Consumer Protection Act (TCPA)
• Federal Communications Commission (FCC) rules implementing the TCPA
• Federal Trade Commission's (FTC) Telemarketing Sales Rule
• The Restore Online Shoppers' Confidence Act (ROSCA)
• The CAN-SPAM Act
• State laws and regulations governing consumer protection, telemarketing, automatic renewal programs, refunds and cancellations, "free" offers, sale offers, disclosure and notice requirements, and privacy concerns

With this comprehensive experience, she frequently conducts end-to-end compliance assessments for companies to evaluate and reduce the risk of lead generation activities, sales practices, offer terms and conditions, privacy policies, order fulfillment, customer service, and complaint response management. Many clients turn to Ellen to draft internal and external compliance policies and procedures. 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. 

Ellen also regularly assists clients in responding to federal and state investigative inquiries, demands, and complaints from the Federal Trade Commission, the Federal Communications Commission, the Consumer Financial Protection Bureau, the Department of Justice, state attorneys general, and other federal and state authorities.

Merchant Transaction Processing

As an extension of her work with direct-response retailers and advertisers, Ellen focuses a substantial portion of her practice on payment processing, working with both merchants and payments companies to address the legal, operational, and business challenges of transaction processing. She frequently advises banks, processors, independent sales organizations (ISOs), independent software vendors (ISVs), payment facilitators, gateways, fintech companies, and merchants on the following:

• Merchant processing and other agreements involving banks, processors, gateways, independent sales organizations (ISOs), payment facilitators, and independent software vendors (ISVs)
• Payment structures for processing services
• Pricing terms and disclosures
• Chargeback, fraud, and risk management practices
• Policies for merchant underwriting and risk management, including industry-specific guidance for higher-risk merchant industries
• Fintech and financial services transactions
• Ancillary services, including equipment leasing, data breach insurance, and others
• Responding to government inquiries and investigations

Leveraging her experience in practicing before the Federal Trade Commission (FTC) and other regulatory and law enforcement authorities, Ellen frequently handles civil investigative demands, subpoenas, and lawsuits threatened or filed against payments companies. She has guided numerous payment processors and ISOs through FTC investigations, lawsuits, and settlements.