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Ellen Berge provides counsel on regulatory compliance, government investigations, contract negotiations, and general business matters. Ellen focuses on advertising, marketing practices, payment processing, and merchant services. Her clients include major brand advertisers and direct-response retailers, and lead generators, telemarketers, media agencies, software providers, and others who serve them. On the merchant services side, she leads a practice that works with banks, processors, sales agents, payment facilitators, independent software vendors, and fintech and financial services businesses. Ellen also serves as the firm's managing partner of Professional Development and Recruiting.

States continue to devote significant attention to consumer protection and pricing transparency issues. During the 2025-2026 legislative cycle, legislatures across the country introduced, debated, enacted, and, in some cases, rejected legislation relating to surcharging, “junk fees,” interchange fees, and related pricing practices. Although the status of individual bills varies and legislative sessions have now concluded in many states, these measures provide a useful illustration of the approaches states are considering and signal that similar proposals are likely to continue emerging in future legislative sessions. As a result, companies should remain diligent in monitoring developments across jurisdictions to ensure their awareness of and compliance with applicable laws and regulations.

With respect to surcharging, states have pursued a variety of approaches, with some considering outright prohibitions and others seeking to impose limits or conditions on surcharge practices. For example, New Jersey considered legislation (NJ AB4807) that would prohibit surcharging altogether. Other states explored permitting surcharges while limiting the amount that may be charged. In Georgia (GA HB700) and Oklahoma (OK SB2132), lawmakers considered proposals that would restrict surcharge amounts by reference to merchants’ processing costs. In addition, some states examined legislation that would permit surcharging only where alternative payment methods not subject to surcharges are available. Examples include Illinois (IL SB1931) and Minnesota (MN SF3875). Finally, several states have focused specifically on debit card transactions. Louisiana recently enacted legislation (LA SB254) that prohibits retail businesses from imposing a surcharge on consumers who pay with a debit card and creates a private right of action for consumers harmed by violations of the Act. The Louisiana bill was signed by the governor and will become effective on August 1, 2026.

Continue Reading State Fee Regulation Trends: Surcharging, Junk Fees, UDAP, and Interchange Fees

A recent review of civil filings in Washington, DC reveals a conspicuous pattern challenging strike-through pricing: a single nonprofit plaintiff, represented by a small group of attorneys, has filed more than 150 lawsuits against online retailers across the country—many of them small businesses.

Surge in DC CPPA Pricing Lawsuits

A DC-based organization is filing the wave of lawsuits under the District of Columbia Consumer Protection Procedures Act (CPPA). The lawsuits challenge so-called reference pricing, strikethrough, or “sale” pricing. They allege misleading price comparisons, failure to disclose material facts, and ambiguous representations that tend to mislead. The letters typically seek statutory damages of $1,500 per product purchased, plus attorneys’ fees. The plaintiffs allege that selling into DC is enough to create nationwide exposure.

Continue Reading Online Retailers Face Rising Risk from Strike-Through Pricing Claims

New York City is poised to strengthen local enforcement of autorenewal and subscription programs, largely mirroring and operationalizing requirements already imposed under New York’s autorenewal law.

On April 8, the New York City Department of Consumer and Worker Protection (DCWP), led by Commissioner Samuel Levine, published a proposed “Click-to-Cancel” rule that would require any business offering autorenewal programs to New York City consumers, regardless of where the business itself is located, to make canceling subscription services as easy as enrollment.

Continue Reading New York City Proposes Strict Click-to-Cancel Subscription Requirements

Join us as we offer a sneak peek into select chapters from the newly released 14th edition of Venable’s Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Want more? Click here to download the entire Tool Kit.


Commercial email marketing poses private litigation risks and regulatory hurdles that should be considered before launching any campaign to ensure compliance. The Federal Trade Commission Act requires truthful and non-misleading advertising, and the Federal CAN-SPAM Act prohibits false or deceptive email headers (which are generally defined as the sending domain names and “from” lines) and subject lines, requires opt-out options, and mandates identification of commercial emails as advertising.

Continue Reading Inside the Ad Law Tool Kit: Email Marketing

From one-click checkouts to autofilled payment fields, the modern payment experience is built on convenience. Consumers have come to expect that apps, websites, and even their mobile devices will seamlessly store and deploy their payment credentials with minimal friction. But beneath this ease lies a growing legal tension, particularly in subscriptions and automatic renewals programs, where sales and marketing laws require clear disclosures before obtaining the consumer’s billing information.

ROSCA Compliance and Subscription Disclosure Timing

The Federal Trade Commission’s (FTC) lawsuit against Uber Technologies illustrates how this tension plays out in practice. The case focuses on Uber’s “Uber One” subscription program and how subscription enrollment is embedded within an app ecosystem where users have already stored payment credentials for one-off transactions. Under the Restore Online Shoppers’ Confidence Act (ROSCA), material subscription terms must be disclosed before obtaining consumers’ billing information.

Continue Reading Stored Payment Credentials and ROSCA: Lessons from the FTC’s Uber Case

Last week, a federal judge in the Northern District of California ruled on Uber’s motion to dismiss a case brought by the Federal Trade Commission (FTC) alleging deceptive practices in connection with its Uber One subscription program. The complaint alleged violations of the Restore Online Shoppers’ Confidence Act (ROSCA) and deceptive advertising and marketing misrepresentations in violation of Section 5(a) of the FTC Act and numerous state laws.

FTC Uber Lawsuit and ROSCA Claims

The court granted in part and denied in part the motion to dismiss. The court granted the motion to dismiss as to only two discrete aspects of the complaint. First, it dismissed the FTC’s subclaim challenging Uber’s “$0 delivery fee” representation, holding that the statement was not misleading as a matter of law because it was expressly limited to “eligible” orders and therefore would not lead a reasonable consumer to believe all orders qualified.

Continue Reading FTC v. Uber: California Court Allows Claims against Uber One Subscription to Proceed

On Wednesday, the Federal Trade Commission (FTC) issued a call for comments in response to its Advance Notice of Proposed Rulemaking Regarding Negative Option Marketing Practices.

The call for comments comes after the Eighth Circuit struck the FTC’s previous amended Negative Option Rule because the FTC did not issue a preliminary analysis of the benefits

Last week, the Fifth Circuit Court of Appeals held that the Telephone Customer Protection Act (TCPA) permits businesses to obtain only prior express consent rather than prior express written consent for autodialed and prerecorded calls and texts. This holding expressly rejects the Federal Communication Commission’s (FCC) interpretation of the TCPA’s consent requirement first promulgated in 2012.

In Bradford v. Sovereign Pest Control, the Fifth Circuit affirmed the lower court’s grant of summary judgment to the defendant, refusing to apply a stricter consent standard to telemarketing texts than to non-telemarketing or informational messages. In the case, the court rejected the FCC’s long-standing regulation that interpreted the TCPA to require prior express written consent for telemarketing messages, holding that because the TCPA’s statutory text does not distinguish between telemarketing and non-telemarketing/informational messages, courts should not apply a stricter consent standard for telemarketing messages.

Continue Reading Fifth Circuit Limits TCPA Prior Express Written Consent Requirements

New York has amended its General Business Law to move beyond a deception-based consumer protection standard and authorize enforcement against unfair and abusive practices, giving the Attorney General materially broader discretion to shape marketplace conduct. The new framework resembles federal UDAAP enforcement in that it relies less on detailed statutory rules and more on evolving enforcement judgments about what constitutes “fair” conduct.

In announcing the amendments to New York GBL § 349 contained in the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act, Attorney General Letitia James pointed to lending and debt collection practices, fee structures, billing mechanics that complicate understanding, contract terms viewed as exploitative, student loan servicers, car dealers, nursing homes, health insurance companies, and impacts on vulnerable or limited-English-proficient consumers. The statute also expressly recognizes potential harm to small businesses and nonprofits, extending potential exposure beyond traditional consumer relationships.

Continue Reading New York Broadens Attorney General Authority and Embraces Enforcement-Driven Regulation

Earlier this month, attorneys general from seven states launched a coordinated inquiry into the rapidly expanding “buy now, pay later” (BNPL) market. Led by Connecticut and North Carolina, and joined by California, Colorado, Illinois, Minnesota, and Wisconsin, the multistate coalition of attorneys general sent letters to six major BNPL providers, outlining concerns that the companies’ products may be violating state consumer protection laws.

Regulators Cite Risks: Repayment Challenges and Transparency Concerns

In the letters, state AGs request information on pricing and repayment structures, as well as copies of consumer contracts, user agreements, and disclosures. The inquiries focus on determining whether consumers have received what the states view as appropriate protections—specifically, whether they have encountered a lack of transparency, undisclosed fees, and risky repayment structures.

Continue Reading State AGs Increase Scrutiny of Buy Now, Pay Later Providers Amid Consumer Protection Concerns