Advertising Law

Manatt, Phelps & Phillips, LLP
Contact

In This Issue:

  • SPECIAL FOCUS: Supreme Court Adopts Broad Standing Test for False Advertising Plaintiffs

  • Judge Judy Now the Plaintiff in a False Advertising Suit

  • Fruit or Fruit Flavors? NAD Recommends Changes to Ads

  • Settlements in 2nd Circuit’s Transformative Use Case, Dispute Between Beastie Boys and GoldieBlox

  • Notorious Infomercial Star Sentenced to 10 Years in Prison

  • D.C. Court Rejects Zip Code Consumer Protection Suit, Creates Split

  • Noted and Quoted . . . AdAge Turns to Linda Goldstein to Unpack Supreme Court Decision Involving Standing Under Lanham Act

SPECIAL FOCUS: Supreme Court Adopts Broad Standing Test for False Advertising Plaintiffs

Author: Thomas Morrison*

On March 25th, the Supreme Court issued its long-awaited opinion regarding the test for standing in false advertising cases under Section 43(a)(1)(B) of the Lanham Act.1  Strangely enough, this was the Court’s first opinion in a Lanham Act false advertising case, perhaps because false advertising litigation only began to emerge in the 1980s, even though the statute itself is more than a half-century old.  In any event, the wait was well worth it as the Court scrapped a competing jumble of standing tests that had been adopted by the circuit courts in favor of a broad, statute-based test that confers standing on parties beyond those who are direct competitors.

The Lexmark Case

Lexmark manufactures and sells laser printers as well as toner cartridges for those printers.  While Lexmark designed its printers to work only with its own cartridges, a significant market grew up around so-called remanufacturers, who obtained used Lexmark cartridges, refurbished them, and resold them in competition with Lexmark’s cartridges.  To combat this practice, Lexmark introduced a “Prebate” program, whereby its customers obtained discounts on Lexmark cartridges if they agreed to return the used cartridges to Lexmark.  To enforce its Prebate agreement, Lexmark developed a microchip that disabled the cartridge after it ran out of toner.

Static Control was neither a cartridge manufacturer nor a remanufacturer.  Rather, it made components that allowed manufacturers to remake Lexmark cartridges.  To combat Lexmark’s microchip, Static Control developed its own microchip that mimicked the microchip in Lexmark’s Prebate cartridges.  Thus remanufacturers who purchased Static Control’s microchip were able to refurbish and resell used Prebate cartridges.  As Justice Scalia observed, “Lexmark did not take kindly to that development.”2

Lexmark sued Static Control for violations of Copyright Act and the Digital Millennium Copyright Act.  Static Control counterclaimed for false advertising under the Lanham Act.  Lexmark’s alleged false advertising was two-fold: (1) advising its customers that the Prebate terms were legally binding; and (2) sending letters to remanufacturers?Static Control’s customers?advising them that it was illegal to use Static Control’s products to refurbish Lexmark’s Prebate cartridges.3

The District Court granted Lexmark’s motion to dismiss the Lanham Act claim on the ground that Static Control lacked “prudential standing” because the real targets of Lexmark’s false advertising, and the parties most directly injured, were the remanufacturers.4 The Sixth Circuit reversed, and adopted the Second Circuit’s false advertising standing test, which essentially asks whether the plaintiff has a “reasonable [commercial] interest” in being protected from the false advertising in question.  Under that standard, standing was clearly established.5

The Prior Standing Tests

The Supreme Court’s decision to accept certiorari was a welcome one, as no less than three vastly different tests for standing had been adopted. 

(1) The “Direct Competitor” Test

Three circuits ? the Seventh,6 Ninth7 and Tenth8 ? conferred standing only on direct competitors.  As the Supreme Court stated, while this standard provides a clear bright-line rule, it “categorically” prohibits suits by noncompetitors and “distort[s] the statutory language.”9 This approach was clearly at odds with the broad language of Section 43(a)(1), which permits lawsuits “by any person who believes he or she is or is likely to be damaged” by a violation of the statute.

(2) The “Multifactor” Test

Four circuits ? the Third,10 Fifth,11 Eighth12 and Eleventh13 Circuits ? applied a multifactor balancing test taken from the Supreme Court’s decision in an antitrust case.14  Among the five factors taken into account under this approach, the most important are (i) whether plaintiff’s alleged injury is the type the Lanham Act was intended to protect; (ii) the directness or indirectness of the alleged injury; and (iii) the proximity of the plaintiff to the allegedly wrongful conduct.  The Supreme Court stated that this approach was a “commendable effort to give content to an otherwise nebulous inquiry,” but concluded that the approach “can yield unpredictable and at times arbitrary results.”15

(3) The “Reasonable Interest” Test

The Second Circuit ? which is the birthplace of much of the body of law relating to false advertising ? had long held that false advertising standing is available to any commercial plaintiff who can show that it has “a reasonable interest to be protected against the alleged false advertising.”16  The Fourth Circuit also adopted this test, although in dicta.17  The Sixth Circuit adopted this test in its Lexmark decision, holding that Static Control had standing under § 43(a) because its reputation and sales were harmed by Lexmark’s allegedly false statements to remanufacturers.18  The Supreme Court criticized this test because “it lends itself to widely divergent application” and can be read as requiring “only the bare minimum of Article III [constitutional] standing.”19

The Supreme Court’s Decision

The Court presented an extended, and somewhat academic, discussion of the doctrines of “constitutional standing” (the “case or controversy” requirement of Article III of the Constitution) and “prudential standing” (under which courts may decline to hear cases even though the “case or controversy” requirement is satisfied).  Lexmark had argued that, under a “prudential standing” analysis, Static Control lacked standing to pursue a false advertising claim.  But the Supreme Court ruled that the “prudential standing” analysis is inapplicable to cases where, as with the Lanham Act, the statute itself identifies those who may sue.  Thus the only question in the case was whether the cause of action created by Section 1125(a) of the Lanham Act extended to Static Control.20

Accordingly, the Court had to decide whether Static Control fell within the class of persons covered by the broad language of Section 43(a)(1)?which creates a cause of action for “any person who believes that he or she is likely to be damaged” by the defendant’s false advertising. To address that question, the Court stated that Static Control must satisfy two criteria: (1) the “zone of interests” test and (2) the “proximate cause” test.

(1) Zone of Interests

This element requires only that the plaintiff’s interests “fall within the zone of interests protected by the law invoked.”21  As the Court noted, this test is not “especially demanding.”22  The Court examined the legislative history of the Lanham Act and concluded that Congress intended to protect “persons engaged in commerce” against unfair competition.23  While this clearly excludes consumers from invoking the Lanham Act (a unanimous conclusion of every circuit court that has considered the question), the Court stated that it would also exclude a commercial entity whose complaint was that it was misled into purchasing shoddy goods.  But otherwise, any plaintiff who can allege injury to “a commercial interest in reputation or sales” satisfies this test.24

(2) Proximate Cause

This element requires that the plaintiff’s injuries be “proximately caused” by the violation of the statute, i.e., whether the alleged injury “has a sufficiently close connection to the conduct the statute prohibits.”25  This means that:

[A] plaintiff suing under §1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.26

Applying these two criteria to Static Control’s complaint, the Court first found that Static Control readily satisfied the “zone of interests” requirement, as it was an entity engaged in commerce whose business was allegedly damaged by Lexmark’s advertising.27  As to the “proximate cause” requirement, the Court recognized that this was not a “classic” false advertising case where the parties were direct competitors.  However:

[A]lthough diversion of sales to a direct competitor may be the paradigmatic direct injury from false advertising, it is not the only type of injury cognizable under §1125(a).28

Here, Static Control satisfied the “proximate cause” test for two reasons.  First, its reputation was directly harmed by Lexmark’s claim that Static Control’s business was illegal:

[W]hen a party claims reputational injury from disparagement, competition is not required for proximate cause; and that is true even if the defendant’s aim was to harm its immediate competitors, and the plaintiff merely suffered collateral damage.29

In addition, because its microchips were sold for the sole purpose of being used by remanufacturers, who used them to refurbish Lexmark cartridges, if Lexmark’s false advertising diminished the remanufacturers’ business, it “necessarily” injured Static Control as well.30  While this injury required an “intervening link of injury to the remanufacturers,” Static Control’s claim was that the remanufacturers’ loss of sales of refurbished cartridges was accompanied by a corresponding decline in their purchase of microchips from Static Control.31

Why it matters:  The Court ended its opinion by cautioning that it was merely holding that Static Control had “alleged an adequate basis to proceed” but that, to obtain relief, it would have to present “evidence of injury proximately caused by Lexmark’s alleged misrepresentations.”32  Despite this caveat, the Court’s decision serves as a ringing endorsement of the broad test for standing in false advertising cases exemplified by the Second Circuit’s “reasonable interest” standard.

The attempt to limit Lanham Act standing to direct competitors was always a cramped construction of the broad language of Section 43(a).  Now, the only requirement is that the plaintiff be able to articulate (and prove) a basis on which it can show that the false advertising in question has resulted in some discernible injury to its reputation or sales.  This is clearly the appropriate result, and should ensure that commercial plaintiffs who are impacted in any meaningful way by false advertising can seek redress under the Lanham Act.


* Mr. Morrison has litigated scores of false advertising cases over the past 35 years.  He represented the plaintiff in Ortho v. Cosprophar, infra, the leading Second Circuit case on standing.

1Lexmark Int’l, Inc.v. Static Control Components, Inc., 2014 U.S. LEXIS 2214 (March 25, 2014).

2 2014 U.S. LEXIS 2214 at *7.

3Id. at *9.

4Id. at *10.

5Id. at *12.

6L.S. Heath & Son, Inc. v. AT&T Information Systems, Inc., 9 F.3d 561, 575 (7th Cir. 1995).

7Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108-09 (9th Cir. 1992).

8Stanfield v. Osborne Industries, Inc., 52 F.3d 867, 873 (10th Cir. 1995).

9 2014 U.S. LEXIS 2214 at *32.

10Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 233-34 (3d Cir. 1998).

11Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 562-63 (5th Cir. 2001).

12Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F.2d 985, 990-91 (8th Cir. 1993).

13Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F.3d 1156, 1162-64 (11th Cir. 2007).

14Associated General Contractors v. Carpenters, 459 U.S. 519 (1983).

15 2014 U.S. LEXIS 2214 at *31, 32.

16Ortho Pharmaceutical Corp. v. Cosprophar, Inc., 32 F.3d 690, 694 (2d Cir. 1994).

17Mylan Labs, Inc. v. Maktari, 7 F.3d 1130, 1139 (4th Cir. 1993).

18Lexmark v. Static Control, 697 F.3d 387, 411 (6th Cir. 2012).

19 2014 U.S. LEXIS 2214 at *34.

20 2014 U.S. LEXIS 2214 at *20.  This inquiry is sometimes referred to as “statutory standing.”  Id. at *19.

21Id. at *21.

22Id. at *22.

23Id. at *24.

24Id. at *25.

25Id. at *26, 27.

26Id. at *28.

27Id. at *35.

28Ibid.

29Id. at *37.

30Id. at *38.

31Id. at *38-39.

32Id. at *39-40.

Judge Judy Now the Plaintiff in a False Advertising Suit

Judge Judy is involved in a new lawsuit – and this time, she’s the plaintiff.

Calling it the first complaint she has filed on her own behalf in her 50-year legal career, TV judge Judith Sheindlin said a Connecticut-based law firm used clips of her show in local television ads and Internet videos without her permission. Sheindlin alleged misappropriation of her likeness and violation of her right of publicity under state law, as well as a federal Lanham Act claim for false endorsement.

The ads aired on local television stations in Connecticut and Massachusetts during the broadcast of the “Judge Judy” show and alternated images of Defendant John Haymond, a lawyer, and his daughters with clips from the show, “edited to imply that Sheindlin actually is interacting with Mr. Haymond and his daughters, though in reality she has never met him,” according to the complaint.

Sheindlin contacted Haymond and his firm in April 2013 to demand that they stop using the unauthorized advertisements. The defendants removed the ads from the firm’s Web site and YouTube channel but the television commercials continued as recently as March 6, 2014 the suit claims.

Haymond’s actions are “particularly egregious” in light of his obligations under the Connecticut Rules of Professional Conduct, Sheindlin’s complaint added. Rules 7.1 and 7.2 provide that lawyers “shall not make a false or misleading communication,” putting Haymond potentially on the hook for ethical violations.

In addition to injunctive relief, Sheindlin seeks disgorgement as well as actual and punitive damages. In a statement she said any monies recovered in the suit would be donated to a charity that provides college scholarships to women.

To read the complaint in Sheindlin v. The Haymond Law Firm, click here.

Why it matters: The claims of false endorsement and violation of publicity rights are typical, but the parties in the case make it unusual. Sheindlin noted in her complaint that the use of her image was particularly galling as she “has refrained from engaging in the commercial endorsement of the products or services of others” during her career.

Fruit or Fruit Flavors? NAD Recommends Changes to Ads

Fruit or fruit flavors? To avoid misleading consumers, Hershey’s needs to improve its advertising to make clear that its Brookside Dark Chocolate line is made with fruit flavors, not actual pieces of fruit, the National Advertising Division recently recommended.

Competitor Mars, Inc. challenged Hershey’s ads, arguing that the layout and font sizes on packaging for the chocolate line misled consumers into believing they were eating real fruit, not pieces of fruit juice wrapped in chocolate. For example, the packaging features the name “Brookside Dark Chocolate Goji with Raspberry Flavors” but the word “Goji” appears much larger than the “Raspberry Flavors.” Mars contended this layout communicated to consumers that the Goji is real fruit while the raspberry is added fruit flavoring. Imagery like pictures of fresh fruit only amplified the incorrect message, Mars argued.

A television commercial exacerbated the message with a farm locale and repeated beauty shots of fresh fruit.

Hershey contended that consumers were not misled by either the commercial or the product packaging. The product name itself references fruit “flavors” and text on the bottom of the package states, “soft fruity flavored centers covered in smooth dark chocolate.” The commercial similarly used the term “flavored” and the country setting for the ad was selected to reinforce the “Brookside” name and logo, which includes a tree and stream, the advertiser said.

Lacking consumer perception evidence, the NAD stepped into the shoes of the consumer and found that while the product name did not inherently convey a message that the chocolate line contained real fruit, additional messages were conveyed by the layout and font sizes.

“Consumers could reasonably understand the product to have three distinct parts: dark chocolate, a real piece of the highlighted fruit (Acai, Goji, or Pomegranate), and, separately, other fruit flavors,” the NAD wrote. “A consumer could reasonably attach the word ‘flavors’ to the fruit directly next to it (blueberry, raspberry, or fruit), while not reading the word ‘flavors’ to apply to the fruit in substantially larger text on a separate line.”

Moreover, the NAD said the “overwhelming imagery of fresh fruit and chefs gathering and preparing fresh fruit” left consumers with a reasonable takeaway that the product contained actual fruit. Even with an oral qualified claim, the NAD found that “the visual cues presented in the advertisement are particularly striking, and serve to draw viewers’ attention away from the voiceover’s important message that the products are only ‘flavored’ with fruit juices, and rather convey an inaccurate message that the products contain actual fruit.”

The self-regulatory body recommended that Hershey’s modify Brookside packaging “to present the product name in a manner that makes it clear that all of the identified fruits are in fact ‘flavors’ and not actual pieces of fruit in the product.”

To read the NAD’s press release about the case, click here.

Why it matters: As the NAD noted, advertisers are responsible for all reasonable interpretations of their advertising, including messages they may not have intended to convey. For Hershey’s, this included a font size and layout of the product name on the packaging conveyed the takeaway that actual fruit was included, while the term “flavors” was de-emphasized. The NAD concluded that Hershey’s commercial similarly misled consumers with its “overwhelming imagery” of fruit.

Settlements in 2nd Circuit’s Transformative Use Case, Dispute Between Beastie Boys and GoldieBlox

Two high-profile infringement cases settled last month, resolving disputes between a toy company and a rap group as well as ending litigation over an artist’s use of a photographer’s images.

The first case began with a viral online video. A toy company featured a parody of the Beastie Boys’ 1987 hit “Girls” in its GoldieBlox’s ad for its new line of engineering toys for girls. GoldieBlox struck first, arguing in a declaratory judgment action that the updated version of the song constituted fair use. The rap group responded with copyright and trademark infringement counterclaims, noting that in more than 20 years, it had never licensed its works for advertisements.

After much public back-and-forth, the parties reached a truce.

GoldieBlox agreed to issue a public apology to the Beastie Boys and posted the following on the company’s Web site. “As engineers and builders of intellectual property, we understand an artist’s desire to have his or her work treated with respect. We should have reached out to the band before using their music in the video.”

In addition, the toy company will make a payment based on a percentage of revenues “to one or more charities selected by the Beastie Boys that support science, technology, engineering and mathematics education for girls,” according to a statement from the rap group.

In the second case, a long-running dispute with ramifications for the boundaries of “transformative use” also came to an end. Photographer Patrick Cariou published a book of landscapes and classical portraits called Yes Rasta after spending six years living with Rastafarians in Jamaica. In a series of collages and paintings called Canal Zone, well known “appropriation artist” Richard Prince made use of the photographs. For example, in one collage, Prince tore 35 photographs out of the book and painted “lozenges” over the subjects’ facial features. Other pieces used enlarged or tinted photographs.

Cariou sued for copyright infringement and Prince raised a defense of fair use. Although a federal district court disagreed, the Second U.S. Circuit Court of Appeals ruled that Prince’s use of the photographs was transformative in the majority of his pieces and therefore constituted fair use.

However, the federal appellate panel remanded the case for a determination of five images the court said were so minimally altered they might not be considered fair use.

Facing continued litigation, the parties agreed to a settlement, the terms of which are undisclosed.

Why it matters: Both of the cases played out in the public eye, providing some lessons for advertisers. In the case of GoldieBlox, be careful what you wish for. The upstart company had the good fortune to create a viral ad, but its failure to get the proper permissions cast a shadow on its big debut. And the Cariou v. Prince case resulted in new case law examining the issue of transformative use.

Notorious Infomercial Star Sentenced to 10 Years in Prison

Despite his promise never to lie in an infomercial again, a federal court judge sentenced Kevin Trudeau to 10 years in prison for criminal contempt after violating a consent decree with the Federal Trade Commission.

A federal jury found Trudeau guilty late last year of violating the 2004 decree in which he promised not to directly or indirectly produce and broadcast any deceptive infomercials that misrepresented the contents of any book. Trudeau then launched a new round of infomercials in 2006 to support a diet book, The Weight Loss Cure “They” Don’t Want You to Know About.

According to the FTC, Trudeau claimed he had discovered a secret and permanent weight loss plan that was suppressed by food companies and the government in an effort to keep people fat. In three half-hour infomercials, Trudeau set forth his plan, which he said did not require any exercise or dieting and allowed users to eat as much of whatever food they wanted.

But the government said Trudeau’s program was really a grueling regimen, limited to 500 calories per day and the use of prescription hormones. Jurors deliberated for less than one hour before finding the 50-year-old Trudeau guilty.

Seeking a two-year sentence, Trudeau told the sentencing judge that he “had a significant reawakening” due to his time spent in prayer and meditation while locked up since November. “If I ever write a book again, if I ever do another infomercial again, I promise no embellishment, no puffery, and absolutely no lies,” he told the court.

U.S. District Court Judge Ronald Guzman was unmoved by Trudeau’s apologies and promises and imposed a decade of prison time. Calling Trudeau “deceitful to the very core,” Judge Guzman said “he has steadfastly attempted to cheat others for his own gain” for years, adding that Trudeau has treated federal court orders “as if they were mere suggestions…or at most impediments to be sidestepped, outmaneuvered or just ignored.”

Why it matters: Trudeau’s legal woes will not end soon. In addition to his attorney telling CNN that Trudeau plans to appeal the sentence, he faces an ongoing civil action where the FTC is seeking recovery of a $37.6 million fine, which was levied in 2009.

D.C. Court Rejects Zip Code Consumer Protection Suit, Creates Split

In a major win for retailers, a Washington, D.C., federal court judge dismissed a putative class action suit alleging that the requests of customers’ ZIP codes in connection with credit card purchases violated D.C. consumer protection statutes.

The decision allows businesses in the nation’s capital to breathe a sigh of relief. Courts in California and Massachusetts have reached the opposite conclusion, resulting in a wave of consumer class action suits against retailers in those states.

Click here to read the full story in Manatt’s Financial Services Law Newsletter.

Noted and Quoted . . . AdAge Turns to Linda Goldstein to Unpack Supreme Court Decision Involving Standing Under Lanham Act

On March 28, 2014, AdvertisingAge published an article titled “Supreme Court Decision Could Mean More Ad Lawsuits,” for which Linda Goldstein, Chair of Manatt’s Advertising, Marketing & Media Division, weighed in on the important legal ramifications for marketers. The Court cleared up a previously murky area and ruled that a company need not be a direct competitor in order to have standing to sue under the Lanham Act.

According to Linda, “Ultimately [the decision] will lead to more lawsuits because historically there has been this question of whether use of the Lanham Act was limited to direct competitors. This really opens up the field to a wider spectrum of plaintiffs.”

To read the full article, click 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.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP
Contact
more
less

Manatt, Phelps & Phillips, LLP 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.