Anglo-American relations: A special relationship with subtle differences

White & Case LLP

White & Case LLPMuch has been written about the influence of US terms on European transactions and particularly the steady migration of US concepts into English law facilities agreements, resulting from the supply-demand imbalance in the leveraged loan market and sponsors' (and their counsel's) knowledge of US market terms. Terms such as covenant-lite and covenant-loose are regular features of the European leveraged finance market now, where once upon a time four maintenance covenants were considered the norm.


The proportion of reverse-Yankee issuances as a percentage of European loan volumes in 2018
Source: S&P, Leveraged Commentary & Data

High yield bond incurrence style covenants are another example, making a regular appearance in our debt incurrence capacity negotiations alongside requests for unrestricted subsidiaries that may operate outside the constraints of the facilities agreement. Greater flexibility for making restricted payments is the (relatively) new addition to the arena, which appears to be fusing together European, high yield bond and US concepts to allow payments to sponsors at a higher leverage level than previously seen in the European market. However, in this era of conformity, the legal framework and intricacies of loan documentation on either side of the Atlantic prevents a completely uniform approach.

This article seeks to explore some key provisions that still differ, for now, between the US and European leveraged finance markets; providing a rationale for these where possible or potentially uncovering trends for the future.

View full image


For the English leveraged loan market, the Loan Market Association (LMA) has produced a recommended form of loan agreement, which can be used as a starting point. The LMA also periodically updates its documents to reflect legal developments or matters affecting the market. Historically lenders' counsel would use the most recent LMA recommended form and adapt it according to the commercial agreement reached in the term sheet. This approach helped to create familiarity of terms amongst investors, and in particular has helped trading in the secondary markets.

US$1 trillion
US leverage loan market exceeded this number in 2018
Source: S&P, Leveraged Commentary & Data

In recent times, top-tier sponsors have been creating their own precedents, largely following the format of the LMA recommended form, but heavily amending provisions such as the representations, undertakings, prepayments, financial covenants and transfer provisions to reflect their latest commercial position. It is also common to see a hybrid structure, whereby bond-style covenants are scheduled to the loan agreement. The schedule will usually be New York law governed, with the remainder of the loan agreement governed by English law. As is becoming clear, whilst the LMA recommended form still has a part to play with respect to more boilerplate provisions, the more heavily negotiated provisions are scarcely recognisable. In the US, the opposite has been true.

Whilst the Loan Syndications and Trading Association (LSTA) has produced model credit agreement provisions and, more recently, a model credit agreement, the model credit agreement is rarely used as the starting point although certain model provisions are commonly used. Each major lender historically maintained its own form of credit agreement and other documentation, with this now being replaced by the borrower's (or more likely, its counsel's) form of credit agreement or a credit agreement from an agreed precedent transaction, incorporating LSTA language where appropriate.

View full image

Certain funds

With its genesis in the Takeover Code, the English "certain funds" concept applies to public companies requiring that a bidder only announce a bid if it can fulfil its payment obligations. However, in the English leveraged finance market, this concept has been applied to private companies, not as a requirement of law, but to give sellers comfort that private equity houses, investing through special purpose vehicles, are equally able to satisfy their payment obligations under an agreed acquisition agreement.

Accordingly, for private companies the requirements are heavily driven by market practice. In Europe, this has been translated into commitment papers that are usually accompanied by interim facilities agreements, under which funds can be made available within periods as short as one business day. These commitment documents will require lenders to make debt available on a limited conditionality basis (namely, a limited number of conditions precedents which are satisfied at bid stage or are otherwise within the control of the borrower), but most importantly the list of drawstop events which could hinder the borrower's ability to complete the acquisition is limited to key defaults only, such as non‑payment, insolvency, illegality and change of control, in each case, in respect of the bidco only (and not the target).

In the US, the concept of "certain funds" goes by the name of "SunGard provisions" (named after one of the first deals to utilise such terms). However, at the commitment stage in the US, there is no interim facility agreement, but rather an agreement as to the precedent documentation to be used to form the basis of the loan documentation to reduce documentation risk at a later stage; it will only be at that later stage that all of the conditions are satisfied. This approach results from the duty under New York law to negotiate documents in good faith, which is not a feature of English law and which mitigates against the documentation risk which would exist in English law financings but for the inclusion of the interim facilities agreement as an integral part of the commitment papers. Financing commitments in the US generally tend to contain a higher level of conditionality than found in the European market, though the vast majority of such conditions are also within the borrower's control. In particular, US deals typically include a material adverse effect drawstop event with respect to the target (rarely seen in Europe), although this will match the "no material adverse effect" condition in the acquisition agreement so the only substantive difference is that the lenders have the ability to determine if a material adverse effect has occurred (on the same terms as the bidder). The other drawstop events are similar to those seen in Europe, although they cover the target group as well, but only to the extent that the purchaser is receiving corresponding representations from the seller under the purchase agreement.

View full image

Guarantees and security

Guarantor and security coverage is another key area of difference. In the US, the expectation is that the entire group will provide guarantee support (with limited exceptions for immaterial subsidiaries), coupled with broad asset security, which can be taken over most assets (other than real estate) by way of a security and/or pledge agreement complete with a UCC filing. Whilst guarantee limitation language is included, it is included to deal with matters such as fraudulent conveyance and does not as a matter of course limit the value of the guarantee. Not infrequently, all foreign (i.e. non-US) subsidiaries are simply excluded from providing guarantees or security due to the potential for non-US credit support for US borrower obligations to give rise to adverse US tax consequences, although recent changes to the US tax code limit the circumstances where this applies and technically expand the ability to get non-US credit support.

In Europe, however, there is no single approach to guarantees. Each European jurisdiction applies its own rules and regulations, based mostly on an analysis of corporate benefit and financial assistance, to determine firstly whether a guarantee can be given and, if so, the scope of the guarantee. This can result in significant limitations on the value of the guarantees given. A further nuance of the European market is the use of the guarantor coverage test, whereby the overall guarantor count need only add up to a minimum threshold agreed (currently anywhere between 70 – 85 percent is being seen in the market) comprising "material companies" and any other entities within the group required to achieve the threshold. The complexity of the process is heightened by the security arrangement, where again, there is no uniform approach across Europe. Whilst the UK follows a similar model to the US with the ability to use a single all-asset security agreement, in a number of European jurisdictions it is common to have a separate security agreement per asset class, which may need updating from time to time for asset information or lender details. Superficially, Europe appears to have a more relaxed approach to security and guarantees than the US; however, the reality is that both jurisdictions approach guarantor and security coverage from different perspectives.

In the US, the focus is on maximising the value of the lenders' secured claim in a US bankruptcy scenario (see below for further details on this). Conversely, in Europe, greater emphasis is placed on ensuring that there is a single point of enforcement in a creditor-friendly jurisdiction (most likely via share security at the parent level), thereby allowing for the sale of the business as a going concern (again, see below for further discussion on this). It is this difference in approach that manifests itself through the guarantor and security package that is ultimately requested on either side of the Atlantic Ocean.

Mandatory prepayments and events of default

Whilst a change of control is a mandatory prepayment under an English law facilities agreement, it generally constitutes an event of default under a US facilities agreement. The difference is an important one as it means that, in the US, a change of control would give the lenders the option to accelerate the loan and potentially trigger a cross default to the group's other loan agreements. Under an English loan agreement, it would result in an automatic prepayment of the facilities. Increasingly, in Europe, there has been a relaxation of the change of control provisions, such that, rather than triggering an automatic mandatory prepayment, each lender has the option to demand repayment upon a change of control (this is effectively a lender by lender decision now).

Roughly representing the volume of leverage buyouts out of the total European market in the first 11 months of 2018
Source: S&P, Leveraged Commentary & Data

Separately, there is also a steady rise in the inclusion of portability clauses, allowing sponsors to exit the transaction (upon certain conditions being met) without triggering a mandatory prepayment. A similar relaxation in approach is also arising with respect to events of default. Whilst it is scarcely seen in the US, it was typical in the European market for a material adverse effect event of default to be included. However, again, perhaps a reflection of the supply-demand imbalance in Europe, recent top-tier sponsor deals are now syndicating successfully without its inclusion. Legislative and market changes are also playing a role in documentation; for example, it is now common to see specific provisions stating that Brexit will not cause any breaches of the loan agreement, which may also explain the recent push for the removal of the material adverse effect event of default, whereby triggers that are outside the control of the group are being removed from documentation.

View full image


The process for amendments is also notably different in Europe and the US. Whilst majority lenders make most decisions, the US sets that threshold at 50.1 percent, whilst in Europe it is 66.67 percent (although the 50.1 percent threshold is becoming more common in Europe for sponsors that are also active in the US). Certain decisions are reserved for all lender consent, which in the US translates to affected lenders only, rather than unanimity. As one would expect, unanimous decisions are limited to fundamental issues which in Europe include changes to payment dates, amounts and currencies, even if the change does not affect all lenders. To address this, European documents often contain other consent thresholds. For example, the concept of "structural adjustments" attempts to limit decisions on certain matters (for example, upsizing one facility only) to majority plus affected lenders and a "super-majority" threshold (of between 75 – 90 percent) for matters relating to releasing guarantees and security. Separately, whilst both US and European documents incentivise lenders to vote in favour of decisions for fear of yank-the-bank provisions, European documentation goes further and also includes snooze-youlose provisions whereby a lender's commitment is disregarded for voting purposes if that lender falls to respond within an agreed time period and the decision will be binding on that lender if approved.

More than 80% of the US market is deemed "cov-lite"
Source: S&P, Leveraged Commentary & Data

The upcoming replacement of LIBOR as the market benchmark interest rate is prompting increased discussion in the area of amendments. In Europe, most top-tier sponsors have their own variations of the LMA's Replacement of Screen Rate clause, which effectively ensures that amendments to documentation following the withdrawal of LIBOR can be made with majority consent, rather than with unanimous consent (plus borrower consent). In the US, there is more variation in when and how a LIBOR replacement rate is selected. One common approach is to (i) set forth the situations in which a LIBOR replacement rate may be selected, (ii) permit the administrative agent and the borrower to select the LIBOR replacement rate and (iii) have the selected LIBOR replacement rate become effective unless a majority (50.1 percent) of lenders objects within a given time period. As with LMA, LSTA is actively working with the market in the US to prepare for the replacement of LIBOR in an effort to aid market participants in replacing LIBOR in an orderly and predictable manner.

In April 2019, the Alternative Reference Rates Committee ("ARRC"), which was convened by the Board of Governors of the Federal Reserve System and the Federal Reserve Bank of New York and includes private-market participants, published recommended fallback language for market participants to consider for syndicated loans. The recommended fallback language provides for two approaches: (i) a "hardwired approach", which first looks to the secured overnight financing rate published by the Federal Reserve Bank of New York (commonly called "SOFR") as the replacement rate (which is subject to adjustments), and (ii) an "amendment approach", which is similar to the common approach being seen in the European market.

View full image

View full image


Up until relatively recently, the position with respect to transfers was largely settled in Europe, with transfers requiring the consent of the borrower (consent not to be unreasonably withheld and deemed given within 5 – 10 business days) unless the transfer was (i) to a lender or to an affiliate or related fund of a lender; (ii) to an entity set out on an approved list; or (iii) made whilst an event of default is continuing. However, with sponsors concerned about the composition of their syndicate, particularly in an enforcement scenario, lenders have seen further reductions in their ability to make transfers (with restrictions on transfers to disqualified lenders and industrial competitors being included) but most importantly with limits on when these restrictions fall away. The most onerous of these terms sees restrictions applying indefinitely (for example, in the case of transfers to industrial competitors) and in other cases disapplied in only limited cases (for example, the fallaway for all events of default being limited to key defaults only, such as non‑payment or insolvency).

US$10.8 billion
Syndicated secondlien paper issued in the US in 2018
Source: S&P, Leveraged Commentary & Data

In the US, the approach is similar, although it is more common to utilise a list of disqualified lenders to whom loans may not be transferred (which will also include competitors). On its face, therefore, the US and Europe seem to have somewhat converged. However, in some respects the European position appears to be more onerous as Europe now grapples with both such concepts (having to comply with whitelists and indirectly with blacklists through the introduction of the industrial competitors concept; and in some cases, all three). Furthermore, whilst transfers to lenders on whitelists are permitted, the sponsors usually retain the right to remove names (usually up to five names per year) from the list. There is usually no obligation to add to the list, although sponsors can be requested to consider new additions in good faith. Europe is therefore finely poised between a depleting list of transferees on the one hand and a list of absolute restrictions on the other.

View full image

Intercreditor agreements

The use and importance of intercreditor agreements is also another distinguishing factor between the two regimes. In the US, intercreditor agreements are not used on every deal. Instead, they are most often used on first-lien/second-lien deals and split-collateral deals in order to create contractual subordination in respect of security (but not of payment, though it is, of course, possible to agree to payment subordination as well) and, unlike in European deals, do not include as parties other groups of secured creditors (such as hedge counterparties and cash management providers).

US$43.6 billion
The volume of large global deals sold into Europe in 2018
Source: S&P, Leveraged Commentary & Data

Members of the borrower group sign the intercreditor agreement only to acknowledge the terms of it and have no obligations themselves. However, this approach is on the premise that most corporate restructurings in the US involve federal bankruptcy court proceedings. This is conducted under the supervision of a US Bankruptcy Court and gives creditors defined rights under the US Bankruptcy Code to restructure the debtor's debt.

The reorganisation process is protected under a court-ordered automatic stay on any creditor action (importantly, this includes all creditors, including trade creditors) against the debtor. Under this framework, intercreditor agreements often include express lien priorities and advance waivers (mostly from the junior creditors) relating to enforcement, release of guarantors and collateral and rights in bankruptcy proceedings. Further, in certain circumstances the US Bankruptcy Code allows for the discharge of collateral (especially to the extent the amount of the secured claim exceeds the value of the collateral after deducting the amount of the senior claims) and for the discharge of remaining and unsecured claims when done pursuant to a Bankruptcy Courtapproved plan of reorganisation.

Percentage of US financing structures that included firstlien and second-lien term loans in 2018
Source: S&P, Leveraged Commentary & Data

One of the distinguishing factors of the regime is that it binds all creditors of the given debtor (or group of debtors) with senior secured lenders exercising significant influence through this process as a result of holding senior secured claims on all (or substantially all) of the assets of a US borrower group such that the role that intercreditor agreements play is often in the nature of strengthening the position of a senior creditor that already has substantial control.

View full image

In contrast, there is no unifying European bankruptcy code that can be used to implement a restructuring across different European jurisdictions. This means that creditors of European debtor companies that have assets and operations in multiple European jurisdictions may need to navigate multiple insolvency laws. In Europe, the location of the debtor and its assets can have a significant impact on the restructuring options available to creditors. Against that background, lenders in Europe place great emphasis on out-of-court enforcement methods (such as ensuring there is a single point of enforcement in a creditor-friendly jurisdiction) and looking to intercreditor agreements to regulate the relationship between the various creditors. European intercreditor agreements seek to contractually replicate the position offered by the US Bankruptcy Code.

Accordingly, contrary to the position in the US, in Europe not only is it common for hedge counterparties to be party to the intercreditor agreements, they are usually also entitled to vote on a pari passu basis with the debt holders in their classon certain enforcement actions. The borrower group would also be a party to the intercreditor agreement and not merely to acknowledge its terms, but to agree to its subordinated position. Whilst the US Bankruptcy Code will apply the results of a restructuring to all creditors of a debtor, a European restructuring by way of an intercreditor agreement will only apply to those creditors of a debtor that are party to the intercreditor agreement. Likewise, European intercreditors contractually give senior creditors the right to enforce a standstill period (akin to the US automatic stay) which limits the rights of junior creditors to bring enforcement action and give the senior creditors time to implement a disposal if they so choose.

Furthermore, in Europe it is common for the intercreditor agreement to include an express contractual release provision to compel the release of junior creditors' claims (both guarantees and security) upon a sale of secured assets by the senior creditors, subject to fair value protections. These provisions would equally apply in releasing all claims that the borrower group may have as against each other; again solidifying the rationale behind having all such creditors party to the intercreditor agreements. These points highlight that whilst the legislative backdrop in the US gives parties the freedom to provide loans without needing an intercreditor agreement in all occasions, the European model seeks to contractually give parties the same rights, such that the end position is more similar than dissimilar.

View full image


This article highlights that whilst there is already a significant convergence on a number of commercial points, the different legal framework and the needs of participants locally still involves a number of significant differences in documentation in the US and the UK. However, with the market developing over time, it remains to be seen which points can survive the test of time (particularly in light of legal restraints) and which are on "borrowed" time.

Click here to download PDF.

[View source.]

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.

© White & Case LLP | Attorney Advertising

Written by:

White & Case LLP

White & Case 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 (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

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 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 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 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

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:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (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
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit 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 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:

- 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.