2015 SEC Speaks Conference: SEC to Balance Broad Enforcement Agenda and Initiatives with Focus on Core Mission

by Perkins Coie
Contact

The U.S. Securities and Exchange Commission (SEC) touted an expansive regulatory agenda at this year’s “SEC Speaks” conference, held February 20-21, 2015, in Washington, D.C.  At this year’s Speaks, SEC representatives reviewed the agency’s efforts in 2014 and previewed the year to come, with senior leadership highlighting broad initiatives ranging from broker-dealer duties and disclosure requirements, to cybersecurity readiness and anti-corruption enforcement.  Given this aggressive agenda, Commissioner Michael Piwowar jested that the SEC has invented a “new stove with 50 front-burners.”  However, he went on to caution the agency to set priorities in line with its core mission. 

Below we have summarized some of the key discussions during this year’s SEC Speaks.  

Chairman White Touts 2014 Wins, Warns SEC Will Target Financial Fraud in 2015 

In her opening remarks, SEC Chairman Mary Jo White observed that 2014 was a year of significant accomplishment across all areas of the agency’s responsibility, including a number of policy reforms that continue to address fallout from the financial crisis and vulnerabilities in market integrity.  

Record Number of Enforcement Cases and Monetary Relief. For example, Chairman White noted that the agency brought a record 755 enforcement cases over the past year, and obtained a record $4.1 billion in monetary relief through its efforts.  Chairman White added that the staff was focused on bringing innovative, high-impact cases, including “first of its kind” cases against entities ranging from high-risk frequency traders and dark pool investment platforms to private equity firms and broker-dealers.  According to White, in 2014, the SEC sought to deliver a clear message to would-be fraudsters by obtaining an increased number of settlements with admissions of wrongdoing, as opposed to its more routine “no admit-no deny” resolutions. 

Increased Investor Protection Activity.  Turning to investor protection, Chairman White praised the Office of Compliance Inspections and Examinations (OCIE) for conducting 1,855 exams in 2014, which reflects a 15 percent increase from 2013.  This figure includes a cybersecurity initiative involving 100 registrants aimed at assessing their preparedness for cyberattacks. The Chairman also highlighted the continued integration of technology, such as the National Exam Analytics Tool (NEAT), into the OCIE testing program.

Increased Emphasis on Enforcement for Financial Reporting and Auditing Fraud.  Chairman White predicted that in 2015, the SEC will continue to prioritize enforcement actions related to financial reporting and auditing fraud, and highlighted a 40 percent increase in such cases in 2014.  She added that the SEC’s recent cases in this area have focused on violations involving improper revenue recognition, lack of auditor independence, false and misleading financial disclosures, and violation of broker-dealer gatekeeper duties under Section 5 of the Securities Act.  Chairman White further observed that the SEC continues to consider the adoption of rules that would hold broker-dealers to the same fiduciary standards as advisors, a proposition opposed by many in the investment community.

Additional Priorities for 2015.  Chairman White concluded by addressing her other priorities for 2015, which include the following areas: 

  • Market structure fundamentals, such as disclosure and transparency in the equity markets;
  • Capital raising for small issuers and related JOBS Act rulemaking; and
  • Completion of Dodd-Frank Act (DFA) rulemaking, largely in the areas of derivatives and executive compensation. 

Full Steam Ahead for Enforcement

Senior staff from the SEC’s Division of Enforcement highlighted the agency’s recent successes and its plans to continue to focus on core program areas and file impactful actions in 2015.  Several commentators added that enforcement efforts in the upcoming year will be bolstered by the SEC’s continuing use of data analytical tools to detect and prosecute fraud.  

FCPA Unit Discusses Enforcement Focus in 2015, Stresses Cooperation Credit.  Kara Brockmeyer, Chief of the SEC’s Foreign Corrupt Practices Act (FCPA) Unit, noted that while the SEC brought only seven cases in fiscal year 2014, this relatively low number did not reflect a decrease in foreign corruption.  To the contrary, the SEC has already filed as many cases in the first five months of fiscal year 2015 as it did in all of fiscal year 2014.  While the SEC continues to focus on bribery hot spots, such as China and Africa, Brockmeyer stressed that corruption continues to be a worldwide problem that is highly dependent on the bureaucracy in place, even in historically low-risk regions.

In 2015, Brockmeyer expects that the SEC will continue to focus on large multinationals, and will also increase its scrutiny on small and medium-sized companies, including those entering international markets for the first time.  She said the SEC will also broaden its review to include industries that may not have been the focus of FCPA investigations in the past.

Turning to the area of cooperation credit, Brockmeyer stated that over the past year, the SEC has tried to give meaningful credit to companies that assist the SEC in its investigations.  In some cases, this credit is reflected in reduced penalties for the company.  In the Bio-Rad matter, for example, the California-based life science company self-reported misconduct involving $7.5 million in bribes paid to foreign officials in Russia, Vietnam and Thailand.  Bio-Rad also cooperated extensively during investigations by the SEC and Department of Justice (DOJ), and ultimately agreed to pay $40 million in disgorgement to the SEC and $14 million in criminal fines to the DOJ.  Brockmeyer noted that this result, including the $14 million fine—which is relatively modest by FCPA standards—reflected the government’s recognition of the company’s cooperation throughout the investigations.

Brockmeyer added that such cooperation credit is especially appropriate when a company assists the SEC by:

  • Reporting its investigative findings in real time, which allows the SEC to leverage that information and use it in its own investigation;
  • Providing English translations of key documents;
  • Facilitating interviews of foreign employees, including by bringing such employees to the U.S. or other jurisdictions for interviews;
  • Facilitating interviews of former employees, e.g., by informing the SEC before termination or locating former employees if termination has already occurred; and
  • Thinking creatively to assist the SEC in obtaining foreign documents that may be protected by foreign data privacy laws, rather than using such laws to block the SEC’s access to such documents.

According to Brockmeyer, the SEC has also observed an increase in self-reporting and has seen an improvement in the quality and nature of the reports.  Brockmeyer observed that this uptick in self-reporting suggests that many companies have adopted robust internal controls that are capable of identifying issues while still in their infancy.  This relative strength of internal controls has translated into fewer corporate compliance monitorships—only two in fiscal year 2014, since companies appear to be well positioned to self-monitor after reporting misconduct to the SEC.

Whistleblower Program “Tremendously Successful” in 2014.  During his remarks, David Glockner, Director of the Chicago Regional Office, called 2014 a “tremendously successful” year for the SEC’s whistleblower program.  He noted that in fiscal year 2014, the program issued awards to more individuals than in all previous years combined.  He added that the magnitude of the award payments also reached historic heights.  In September 2014, the SEC authorized an award of $30 million to a non-U.S. resident, the largest award payment to date and the first to a foreign national. 

Glockner further observed that in 2014, the SEC brought its first action under the anti-retaliation provisions of the Dodd–Frank Act, ordering Paradigm Capital Management to pay $2.2 million to settle anti-retaliation and other charges.  Glockner noted that the SEC will continue to bring similar actions as they arise and it will also work to identify and investigate the use of employee confidentiality, severance and other kinds of employment agreements to discourage whistleblower reporting.

More Accounting Enforcement on the Horizon.  The Enforcement Division’s Chief Accountant, Michael Maloney, indicated that his pipeline has been filled by tips, complaints, whistleblower reports, restatements and internal referrals within the SEC.  Maloney noted that the SEC has applied increased scrutiny to complex business structures, foreign operations, excessive employee loyalty and overreliance on internal controls.  For smaller and growing companies, factors that increase the likelihood of investigation and enforcement include less-established controls, unreasonable growth targets, increasing complexity that outpaces controls, and too much control by management over accounting functions.  On the other hand, factors that decrease the likelihood of enforcement include, unsurprisingly, enhanced internal controls, active and aware boards of directors and committees, and depth of experience in key positions. 

Finally, Maloney noted that he anticipated several areas of enforcement emphasis in the upcoming year, which included the following areas:

  • Revenue recognition (e.g., accelerated revenue recognition, accounting for long-term contracts, and sales rebates and allowances);
  • Expense recognition (e.g., improper expense deferrals and capitalization);
  • Valuations (e.g., faulty valuation assumptions by management and auditors, as well as the retention of third-party specialists to make those valuations); and
  • Disclosures (e.g., insufficient or missing disclosures and the adequate disclosure of related-party transactions).

SEC’s Litigators Will Continue to Throw “Hard Punches” in 2015.  Matthew Solomon, Chief Litigation Counsel, noted that the Enforcement Division’s litigation unit tried 30 cases nationwide in fiscal year 2014, the majority in federal court.  This represents a high-water mark for trials over the last 10 years, with the unit trying five times more cases in front of a jury in 2014 as it did in 2013.  Solomon noted that the SEC has enjoyed an 80 percent win rate during this time and has won 10 of its last 12 jury trials.  He added that even in its losses, the litigation unit has received positive feedback that it does not shrink from a fight and said it will continue to throw “hard punches,” make the best possible arguments and meet the challenges ahead in 2015.

Enforcement Division Continues to Expand Its Use of Data Analytics.  The Enforcement Division observed that the SEC’s continued use of data analytics has helped it to bring better, faster cases.  In his remarks, Glockner noted that over the past year, the SEC has improved its search capabilities and analytical functions, and it has worked to make these data analytic tools available to all of its regional offices.  Stephanie Avakian, Deputy Director of Enforcement, echoed these sentiments and noted that the SEC’s efforts to leverage big data and technology have resulted in a number of high-quality cases in the pipeline.  Indeed, these tools have resulted in more effective and efficient investigations that have enabled various enforcement units and task forces to identify and bring cases more quickly.

Chyhe Becker, Assistant Director of the Division of Economic and Risk Analysis (DERA), also noted the importance of data analytical tools to the SEC’s litigation efforts. Becker reflected on two recent cases in which DERA was able to use data analytics to support the SEC’s positions.  In the first case, DERA’s expert testimony helped obtain a finding that the SEC’s proposed sanctions were not excessive, a finding that ultimately resulted in both a large monetary settlement and an admission by the parties. In the second case, data generated by DERA helped the SEC prove an investment advisor’s illegal cherry-picking scheme, whereby the investment advisor traded on securities and allocated profitable trades to his own accounts and unprofitable trades to clients.

SEC Discusses Recent Appellate Decisions in Newman and Halliburton

The SEC’s General Counsel, Anne Small, moderated a discussion about two major judicial decisions in 2014—the U. S. Court of Appeals for the Second Circuit’s decision in United States v. Newman and the U.S. Supreme Court’s decision in Halliburton v. Erica P. John Fund.

United States v. Newman.  In Newman, the Second Circuit vacated the convictions of, and dismissed with prejudice indictments against, two insider- trading defendants allegedly involved in a remote tippee chain leading back to insiders at multiple companies. The Second Circuit held that in order to be subject to derivative liability, a tippee must be aware of the tipper’s breach of fiduciary duty and must also know that the tipper derived a personal benefit from that breach. The U.S. Attorney’s Office for the Southern District of New York has petitioned for an en banc review of the Newman decision.  SEC General Counsel Small indicated that the agency believes the decision should be overturned because Newman’s multipart standard is likely to lead to confusion and may impact the SEC’s enforcement programs.

Current Status of NewmanLast month, the SEC filed an amicus brief in support of the DOJ’s petition for en banc review.  Members of the defense bar, including the New York Council of Defense Lawyers and the National Association of Criminal Defense Lawyers, have moved to file amicus briefs opposing the petition for rehearing.  Mark Cuban, whose recent personal experience with the SEC led him to attend SEC Speaks last year, has similarly moved to file an amicus brief opposing the request for rehearing.

Halliburton v. Erica P. John Fund.  In Halliburton Co. v. Erica P. John Fund, the Supreme Court upheld the use of the “fraud on the market theory” used to establish reliance in investor class actions under Section 10(b) and Rule 10b-5. However, the Court went on to state that even if plaintiffs do not need to directly prove that misrepresentations affected the stock price to receive a presumption of reliance, defendants may defeat the presumption at the class certification stage through evidence that the misrepresentation did not affect the stock price. The SEC noted that it does not need to prove reliance in its own enforcement actions under Section 10b and Rule 10b-5, but it maintains an interest in Halliburton and its effects on meritorious investor-initiated litigation.

Office of Compliance and Inspections Exams Continues to Refine Scope 

Deputy Director Marc Wyatt indicated that in 2015, OCIE will focus on its risk-based approach to the selection of examinees and areas of examination based both on qualitative and quantitative factors.  Qualitatively, OCIE looks at such factors as a registrant’s prior SEC filings, asset management footprint, outlier behavior and examination history.  Quantitatively, OCIE considers the registrant’s financial stress, leverage, liquidity, dividend volume and time since the last exam.  OCIE’s second objective is to employ more data analytics in examinations.  NEAT, which has now been implemented in each regional office, has over 100 standardized queries that can be run against billions of transactions to find signals of wrongdoing, such as churning, wash trades, parking, front running or insider trading. 

Emphasis for 2015.  Aside from these more process-driven objectives, Wyatt described several subject matters emphasized for 2015, which include the following areas:

  • NRSROs.  The Office of Credit Ratings (OCR) within OCIE will examine 100 percent of all Nationally Recognized Statistical Rating Organizations (NRSROs), as required by Dodd–Frank.  These examinations will emphasize a “culture of compliance,” by focusing on requirements for     independent directors, conflicts of interest, competency of key personnel and disclosure of credit analysis processes for investors. 
  • Retirement Products.  OCIE’s 2015 examinations will focus on products geared towards retirement, including analysis of fees, suitability and sales and marketing of those products.
  • Cybersecurity.  Exams over the past year determined that most registrants were the target of some sort of cybersecurity attack in 2014, which required continuing examination.
  • Alternative Mutual Funds.  Another area of emphasis in 2015 will be alternative mutual funds.  As these funds are a new product, OCIE wants to assess whether registrants have sufficient expertise to offer and manage alternative mutual funds.  Also, because such products have higher redemption obligations, OCIE will scrutinize the liquidity and leverage of those products to assess whether they are sound.

Investment Management Harbingers Change for Money Market Funds

The Division of Investment Management highlighted two upcoming changes for money market funds.  First, the implementation of a floating net asset value (NAV) for institutional prime money market funds, which will allow the daily share prices of funds to fluctuate along with changes in the market-based value of fund assets and provide non-government money market fund boards new tools, such as liquidity fees and redemption gates to address runs.

Currently, the division is still in the planning phase of these reforms, and anticipates the changes will take place in October 2016.  The second major change will be to disclosure requirements, which will result in increased transparency by requiring fund managers to disclose on their websites key metrics about the funds. Along with metrics about diversification, funds will be required to display the results of stress tests required by the SEC.  Though the division will formally implement the requirements in the near future, many of the larger changes will be stayed until October 2016 to give funds time to adjust. The division acknowledged the resources required for implementation, and noted that it may also issue no-action letters to alleviate the strain.

Rulemaking Initiatives for 2015.  Looking forward to 2015, the division will pursue rulemaking initiatives in these five areas:

  • Data gathering to increase investor understanding of investment products;
  • Updates to data delivery platforms so information is more easily accessed by investors;
  • Portfolio composition and how funds manage portfolio risk, with a particular emphasis on funds’ use of derivatives;
  • Business continuity planning; and
  • Stress testing, which will be coordinated with the Federal Reserve.

Corporate Finance Focuses on Disclosures and Rulemaking

The Division of Corporate Finance’s 2015 priorities will include further implementation of the Dodd–Frank Act and JOBS Act, as well as ongoing efforts to make disclosures more effective for investors.  Members of the division repeatedly emphasized that they view the role of an examiner as collaborative and that issuers should reach out to work with division staff.

Update on Bad Actor Waivers.  Elizabeth Murphy, an associate director of the Division of Corporation Finance, said her unit plans to issue a statement on how the division handles requests from market participants for relief from automatic disqualifications under Rule 506 of Regulation D—so-called “bad actor waivers.” Under rules finalized in 2013, individuals and entities targeted by certain enforcement actions, injunctions and felony convictions are automatically barred for five years from activities, such as sponsoring hedge funds or soliciting interests in private securities unless the SEC agrees to a waiver of the ban. 

Industry and Officer and Director Bars Potent Remedies.  In his statements, Commissioner Luis A. Aguilar described permanent industry and officer and director bars as one of the most potent enforcement remedies available.  He noted that such bars protect investors and send a strong message to other potential wrongdoers, and urged the SEC to use these tools more aggressively.

Encouraged Effective Issuer Disclosures.  The division encouraged issuers to make their disclosures as effective as possible, and to reduce the repetition in filings as much as possible. Members of the division noted that some people have expressed trepidation about removing information from filings, worried that it would invite a staff comment.  The division noted, however, that the staff would look favorably on issuers who had thoughtfully removed unnecessary information.

Additional Guidance For Issuers.  The division provided insight into several areas of interest to issuers:  

  • Metrics.  Metrics should be clearly defined and issuers should discuss how they have been calculated, any limitations on them, any assumptions made in calculating the metrics and applicable explanations for changes in metrics over time.
  • Reporting on gross vs. net revenue.  The division noted this is particularly challenging in the technology industry, where there are often several vendors involved in a transaction.  Factors driving whether to use gross or net figures include whether the issuer is the primary obligor for goods/services being purchased, whether the issuer has the primary and/or inventory risk, and to what extent the issuer has latitude over pricing to the end user. 
  • Changes in commodity prices.  The division noted that a drop in commodity prices can have a material impact on many industries and should be addressed by issuers where applicable. 
  • REITs.  The division noted a huge increase in the popularity of real estate investment trusts (REITs) over the past few years.  Operating companies have spun off real estate holdings and then leased them back, and the division warned that this activity may require a number of separate disclosures. 
  • Fee shifting in corporate bylaws.  When corporations include fee-shifting provisions for shareholder derivative suits, they have a chilling effect on bringing litigation.  While courts are still looking at this practice, the commission is focused on disclosure requirements.  Issuers are advised to disclose fee-shifting provisions, including the level plaintiffs’ recovery must meet to avoid such provisions, and persons covered by the provisions.

Looking Ahead to 2015 and Beyond

The 2015 SEC Speaks focused as much on what the agency expects from those it regulates, as it did on the agency’s priorities for the upcoming year.  What unfolded was a myriad of challenges for both sides.  To level the playing field for investors, the SEC plans to focus on broker-dealer duties, disclosure requirements and the accessibility of periodic issuer reports.  Several SEC representatives stated that corporate and registrant gatekeepers should expect increased scrutiny in the upcoming year.  The agency also plans to be aggressive in bringing enforcement actions, from the investigation stage through litigation, and has set a high bar for individuals and entities seeking leniency through cooperation credit, as evidenced by its settlements in the past year. 

The SEC appears to be turning a corner in the wake of the overwhelming rulemaking mandates that it has absorbed in the years since the financial crisis.  At the same time, the SEC continues to struggle to refine its focus and to demonstrate how it will utilize the expansive new resources at its disposal to prioritize its enforcement activities in 2015 and beyond.

Additional Information

This update summarizes key discussions from the SEC Speaks conference held February 20-21, 2015, in Washington, D.C.  The full text of the speeches is available here.  Additional information about these issues and discussions of other recent speeches, cases, laws, regulations and rule proposals of interest to public companies is available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie
Contact
more
less

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.