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Ellen T. Berge

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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.

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One of the questions that remains uncertain among looming federal and state “junk fee” and “drip pricing” bans in 2024 concerns the impact these rules will have on credit card surcharges. Surcharges are added to sale transactions by some retailers when the buyer uses a credit card to make a purchase. Is this a mandatory fee that must be incorporated in the total price under the new laws? Or does the consumer’s choice to use a credit card to pay make the convenience of paying by credit card an optional service or feature that need not be included in the advertised price?

We may need to wait for further clarification from regulators or a lawsuit to know how junk fee bans impact surcharging, but understanding the possible arguments and pitfalls may help you decide how you will address this question in the short-term. Contact us if you need guidance or advice on these junk fee bans or surcharge rules.Continue Reading Drip Pricing, Surcharging, and the Push for “Total Price” Disclosures

Late last week, the California attorney general released Frequently Asked Questions regarding California’s “Honest Pricing Law” or “Hidden Fees Statute,” which will take effect July 1, 2024. The law is anticipated to have a sizeable impact, given its breadth, and will vastly change how businesses disclose the price of their goods and services to the public. When “advertising, displaying, or offering” a price, the law requires businesses to include all required fees and charges other than certain government taxes and shipping costs.

The Advertised Price Is a Single Price, No Exceptions

The FAQs make clear that the intent of the law is to force businesses to display a single price that includes all required fees and charges that a consumer would pay at the end of the transaction. This is similar to the Federal Trade Commission’s Proposed Rule that businesses display the “Total Price” for goods and services.Continue Reading California Releases FAQs on Complying with Impending Drip Pricing Law

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear an author of this chapter dive deeper into telemarketing and texting in this week’s episode.

Telephone and text message marketing poses private litigation risks and regulatory hurdles that should be considered before any campaign. The Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and states enforce do-not-call (DNC) laws and impose multiple other requirements regarding calling manner, disclosures, consent, opt-out, calling hour limits, caller identification, and telemarketer registration. Calls and texts made to cell phones, using certain types of dialing technology (including autodialers) and prerecorded messages (so-called robocalls), require particular attention, as much of the enforcement and litigation in this area involve texting and robocalling.Continue Reading Telemarketing and Texting: An Excerpt from the Advertising Law Tool Kit

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear an author of this chapter dive deeper into state AG inquiries in this week’s episode.

State attorneys general (AGs) are the chief legal officers of their states or territories and can bring actions to protect the “public interest” in almost any area of law. They represent the state government and the general public and have broad jurisdiction over everything from public corruption to consumer protection.Continue Reading State Attorney General Inquiries: An Excerpt from the Advertising Law Tool Kit

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of payment processing in this week’s episode.

Establishing a solid merchant processing relationship for the acceptance of card and other forms of payment for your sales is a key back-end function that no retailer should neglect. In addition to processing payments through the credit and debit card and automated clearing house (ACH) networks, payment processors can provide helpful analytical tools, dispute resolution, data security assistance, and other products or services related to payment processing.

Merchant processing can be complex, however, as the payments ecosystem has multiple layers of stakeholders, including card-issuing banks, the card and ACH networks, merchant-acquiring banks, processors, independent sales organizations, payment facilitators, third-party senders, and software providers.Continue Reading Payment Processing: An Excerpt from the Advertising Law Tool Kit

Is a product recyclable if it is made of recyclable materials? Or is it recyclable when it can be recycled by waste management facilities? Last month, the United States District Court for the Northern District of California attempted to tackle these questions in response to a motion to dismiss in Della v. Colgate.

The plaintiff alleged that Colgate-Palmolive Company engaged in false and misleading advertising claims about the recyclability of its toothpaste tubes with claims like “First of Its Kind Recyclable Tube” and images of the universal recycling symbol. The plaintiffs claimed these statements were misleading because the products cannot be recycled at most waste management facilities. Colgate argued that since the tube is made from recyclable material—specifically a material that can be recycled at most facilities—the “recyclable” claim was not misleading.Continue Reading California Court Cites FTC Green Guides, Allowing Plaintiff’s Challenge of Colgate Toothpaste Tubes “Recyclable” Claims to Proceed

Telemarketers celebrating the new year should be aware of Maryland’s new telemarketing law, Stop the Spam Calls Act, which took effect January 1, 2024. Like the federal Telephone Consumer Protection Act (TCPA), Maryland now prohibits telephone solicitations (i.e., marketing calls and texts) without the prior express written consent of the called party. But unlike the TCPA, which prohibits the use of an “autodialer” or “ATDS,” the Maryland Act prohibits the use of an “automated system.”

What constitutes an autodialer has been thoroughly litigated up to the U.S. Supreme Court. There, the justices decided that an autodialer is a device that “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.”Continue Reading Maryland Rings in the New Year with an Expanded Telemarketing Law

On December 20, 2023, New York Attorney General Letitia James filed a Petition in state court alleging Sirius XM Radio’s autorenewal practices violated New York’s autorenewal law. In the lawsuit, New York alleges that Sirius XM, an audio entertainment company headquartered in New York, made it difficult for customers to cancel their subscriptions.

New York’s automatic renewal law requires any business that makes an automatic renewal offer or continuous service offer to provide a cost-effective, timely, and easy-to-use mechanism for cancellation. The AG alleges that Sirius violated this requirement by:Continue Reading New York Attorney General: Sirius XM Customers “Frustrated” When Trying to Cancel Subscriptions

The Federal Trade Commission (FTC) announced it has reached a settlement with the bankrupt crypto company Voyager over the company’s alleged deceptive crypto marketing practices. Specifically, the FTC’s complaint alleges that from at least 2018 until its declaration of bankruptcy in July 2022, Voyager enticed consumers with promises that their deposits were insured by the Federal Deposit Insurance Corporation (FDIC) and were “safe.” However, consumers’ deposits with Voyager were not eligible for FDIC insurance and were not protected in the event that Voyager failed.

The FDIC only insures deposits held by insured banks or savings associations, and only up to certain limits. Voyager, however, is not a chartered bank or savings association. While Voyager’s bank partner was FDIC-insured, FDIC deposit insurance protects deposits only in the event of the insured institution’s failure, not the failure of a non-bank partner in the event of that company’s failure. According to the FTC, Voyager’s false assurance lured customers into entrusting their funds to the company, resulting in significant losses for those affected by the company’s bankruptcy in July 2022.Continue Reading FTC Settles with Bankrupt Crypto Company, but Pursues CEO for Deceptive FDIC Claims

This week, the Federal Trade Commission (FTC) released a Proposed Rule, “Rule on Unfair or Deceptive Fees.” The Proposed Rule comes after the FTC solicited comments through its Advance Notice of Proposed Rulemaking in November 2022. The Proposed Rule would cover any business selling in physical locations and online. There is one exception for motor vehicle dealers, which is addressed in a separate rule. The below requirements apply to businesses regardless of whether they are providing the goods or services themselves (e.g., an online travel agent advertising for a hotel chain).

The FTC broadly identified two practices that it intends to regulate: (1) omitting mandatory charges and fees from advertised prices; and (2) misrepresenting the nature and purpose of the charges or fees.Continue Reading FTC Releases Proposed Rule Targeting “Junk” Fees