Can Purchasing Efficiencies Save Mega-Mergers? The D.C. Circuit Says “No”

by Proskauer Rose LLP
Contact

Proskauer Rose LLP

Efficiencies, economies of scale, and the general desire to improve the customer experience are the lifeblood of all mergers. And one of the most common efficiencies in any deal comes from enhanced purchasing power, or the ability to lower costs through increased volume. Long before a deal is announced, merging parties will create clean teams focused on comparing costs, hoping to leverage the better rates that one firm or the other has negotiated with key vendors. This low hanging fruit – simply moving volume from high-cost vendors to lower cost ones – is among the most basic, least speculative efficiencies and can often provide a powerful rationale for doing the deal. But can they save a mega-merger?

Perhaps not, at least according to the D.C. Circuit's recent decision in United States v. Anthem, Inc., which blocked a proposed merger between two of the nation's three largest healthcare insurers by a 2-1 party-line vote. The parties claimed that the combined firm's increased purchasing power would, at a minimum, allow them to obtain the best healthcare provider rates that either one had negotiated on its own. Just extending Anthem's lower rates – reflecting its larger size and scale – to Cigna customers would produce over $2 billion in annual synergies, a fact that was not contested. What was contested was whether such efficiencies were legally cognizable, whether practical realities would prevent them from being realized, and whether they would be passed on to consumers.

The majority, concurrence, and dissent (penned by Judge Kavanaugh – the sole Republican on the panel) answered these questions differently and, in so doing, cast doubt on whether such quintessential purchasing efficiencies can save a merger that substantially increases market concentration. Though efficiencies were given no credence in merger litigation for most of the nation's history, the 2010 revisions to the FTC and DOJ Merger Guidelines offered a ray of hope. Those Guidelines explicitly recognized an "efficiencies defense" for the first time, though it articulated a difficult standard that arguably stripped it of any real significance. The majority's decision in Anthem follows this mold, continuing to express doubt about the existence of an efficiencies defense, embracing the Guidelines' difficult test, and casting aspersions on the parties' proof. In doing so, the decision suggests that efficiencies defenses will remain within the realm of prosecutorial discretion, once again confirming the conventional wisdom that, for efficiencies arguments to do any good, they must win over the hearts and minds of the regulators.

The Courts Reject a Radical Restructuring of the Healthcare Insurance Market

The problem for Anthem began at inception. This was no ordinary merger. It arose in the context of a major industry shake-up, in which all four of the nation's major health insurers felt the urge to merge in two separate transactions announced at roughly the same time:  one between Anthem and Cigna, and the other between Aetna and Humana. There have been other instances where the four largest seek to consolidate down to two. And in most cases, the federal agencies intervene to prevent the duopoly from forming. So it was here.

The DOJ filed two separate suits before two different federal judges, each of whom enjoined the transaction before them. But while Aetna and Humana promptly walked away – and Cigna wanted to – Anthem pressed on, appealing the decision and dragging Cigna along as a "reluctant supporter of the merger." Indeed, at trial, Cigna, which had second thoughts about the merger, had rejected many of Anthem's claims and refused to sign its proposed findings of fact. So, not only did Anthem fail to win over the regulators' hearts, it could not even convince Cigna of its idyllic world vision. The majority on appeal felt the same way.

The Majority Casts Doubt on the Existence of an Efficiencies Defense Based on Discredited but Not Overruled 1960's Era Case Law

The court first addressed the threshold issue of what role efficiencies should play in merger analysis. The majority said none. Quoting from the Supreme Court's 1967 holding in FTC v. Proctor & Gamble Co., the court explained that, "despite widespread acceptance of the potential benefits of [merger] efficiencies," they "cannot be used as a defense to illegality" because Congress "struck the balance in favor of protecting competition." Because P&G has never been formally overruled, the court said it was bound by its letter and spirit. Indeed, presaging a return to when Antitrust laws focused on competitor welfare, over consumer benefits, the court even cited commentators who noted that, when passing the Clayton Act in 1952, "Congress may not have wanted anything to do with an efficiencies defense" because it would give large firms an "even greater advantage over rivals."

But the world has changed since then. Over the last three decades, the Supreme Court took case-after-case to overrule outdated precedents that protected competitors from competition more than they protected consumers from the absence of it. This case too would likely be headed to the Supreme Court for reversal had the court actually held that there was no efficiencies defense. The Merger Guidelines, two sister circuits, and an earlier panel from the D.C. Circuit itself recognized the defense. And, in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., the Supreme Court expressly rejected the view that rival-impairing efficiencies are an "anticompetitive effect" of a merger, a ruling that conflicts with the commentators the majority cited to support its decision.

Seeking to insulate itself from reversal, the majority chose not to stand behind its own discussion of the defense's viability, instead relegating it to mere dicta. "Prudence," it said, "counsels that the court should leave [the issue] for another day" and "simply assume the availability of an efficiencies defense." Whether the panel's avoidance strategy will work remains to be seen – Anthem has already filed its petition for cert. – but as the dissent points out, the majority's "drive-by-dicta" means that no other court should feel bound by it.

Consultant and Economist Analysis Must Bow to Practical Reality as the Majority Rejects "Bargaining-Power-Inspired" Cost Savings

This brings us to the heart of case:  whether synergies arising from the merging firm's increased bargaining power can save an otherwise anticompetitive merger. All sides – the parties, the DOJ, and the courts – agreed on the applicable standard, pulled from the 2010 Merger Guidelines. Efficiencies, they say, must be "verifiable," "merger-specific," and – in the case of high market shares – "extraordinarily" great so that they "offset" any presumed anticompetitive effects. But they could not agree on whether the parties' claimed $2 billion in bargaining-power-inspired efficiencies met this standard.

Each of the three panel judges had a different view. In her concurring opinion, Judge Millet said that such efficiencies are not cognizable as a matter of law because "securing a product at a lower cost due to increased bargaining power is not a procompetitive efficiency when doing so simply transfers income from supplier to purchaser without any resource savings." Were this the rule, many parties' core efficiencies analysis – the ones supposedly given the most weight because they are the least speculative – would be rendered useless, as the parties would also need to prove, not just the existence of cost savings, but that it stems from an actual shedding of costs from the entire supply chain.  

The dissent rejected this view. The ultimate question, the dissent said, was whether insurance rates would go up; if not, the merger would not substantially lessen competition in the insurance market. As to that question, the dissent believed that the parties' two experts – a litigation economist and an integration consultant – presented "overwhelming" proof of efficiencies, and their reports exceeded the requirement that, to be "verifiable," the efficiencies must be "more than mere speculation and promises about post-merger behavior." 

Judge Rogers, writing for the panel majority, took the Goldilocks approach. She did not reject the notion that bargaining power inspired efficiencies were cognizable. Nor did she agree with the dissent that parties could justify an otherwise anticompetitive merger "merely by offering expert testimony of fantastical cost savings." Instead, believing that there is no such thing as a free lunch, she held that Anthem's bargaining power inspired efficiencies either "floundered in the face of business reality or was achievable without the merger, or both."

The problem with the parties' bargaining power inspired savings, Judge Rogers said, was that providers would not offer additional discounts for nothing. The parties had already conceded that, as the nation's second largest insurer, it "has already achieved whatever economies of scale are available." Thus, the merger did not promise significantly lower rates for Anthem's existing customers. Rather, Anthem claimed that its own customers would receive better service, commensurate with Cigna's "high-touch" offerings that focused on preventative care in addition to post-illness treatment. But the court rejected this argument. Such an efficiency was not "merger specific," the court said, because nothing prevented Anthem from offering its customers Cigna-like service levels on its own if it wanted to. As for Cigna's customers, the court questioned whether Anthem could extract greater discounts without "degrading" service levels. More likely, the court said, providers who are forced "to accept less money … will simply respond by offering customers less in the way of Cigna high-touch service." Believing that "pulling at any one loose thread quickly unravels Anthem's narrative," the majority held that the parties' projected cost savings "fall to pieces in a stiff wind."

Structural Arguments Fail to Persuade in the Absence of Competition Forcing The Merging Parties to Pass On the Discounts to Consumers

The majority and the dissent also disagreed when it came to the issue of pass-through. Both sides agreed that efficiencies are only relevant where they "improve consumer welfare," which requires that they "are actually passed through to consumers, rather than simply bolstering [the merging parties'] profit margin." But they disagreed as to whether the estimated savings would, in fact, be passed on. In part, this was because the parties presented a novel pass-on argument grounded on "industry structure," not on "competition." The dissent bought into this argument; the majority did not.

Ordinarily, merging parties claim that ongoing competition will force them to pass on a substantial portion of any cost savings. The problem here was that Anthem did not rely on competition as the mechanism for pass-through; it relied on industry structure. All healthcare insurers, it explained, provide employer-customers with a provider network that employees may use when they get sick. But not all employers actually buy "insurance" from the insurer; some self-insure. Those employers access the network rates negotiated by the insurer on a cost-plus basis, effectively ensuring that 98% of any discount the insurer negotiates with a provider is passed on directly to the employer. For the dissent, this meant that, because the merger would certainly reduce provider rates to some extent, self-insured employer-customers would pay lower rates post-merger, defeating any finding of lessened competition.

The majority rejected this static, industry-structure-based theory of pass-through. That theory was undone, the majority said, by Anthem's own internal documents suggesting that "total pass-through" was not the "optimal solution." But the majority had a problem. If the structural theory was even somewhat correct, self-insured employers would still benefit, even if pass-through was less than total; indeed, even if it was de minimis. To overcome this problem, the majority offered two legal rulings – one procedural, one substantive – to justify its result.

Procedurally, the majority threw out the entirety of the parties' efficiency analysis because it could not credit every aspect of it. Rejecting Anthem's argument that the court should conduct a "dollar-for-dollar comparison after discounting whatever claimed efficiencies were properly rejected," the majority noted that "Anthem, not the district court, has the burden" of proving efficiencies. As such, the court did not need to "calculate … a more realistic pass-through rate" once it rejected the 98% rate Anthem's expert proffered. This all-or-nothing approach – untethered to Daubert or any other standard – has grave consequences for future cases since it arguably gives courts free reign to reject projected cost savings just by taking some pot shots at it.

Substantively, the court held that static, structure-based arguments cannot take the place of more traditional competition-based pass-through arguments. As the court explained, "in highly concentrated markets, already-large insurers are less constrained by competition and thus tend to find it more profitable to capture medical savings and increase premiums." This fact, the court held, "corroborates rather than remediates anticompetitive concerns," notwithstanding Anthem's industry-structure pass-through arguments.

Teachings from the Anthem Decision

So what does the Anthem decision mean for antitrust practitioners and clients interested in M&A transactions? First, it means that courts will remain skeptical of efficiencies defenses, and will – if they even recognize the defense – rigorously apply the Guidelines' requirement that they be verifiable, merger-specific, and extraordinary.

Second, Anthem teaches that these three requirements present many opportunities for results-oriented outcomes, in which courts or regulators cast aside the parties' efficiencies claims. To combat this, it is not enough to have top notch experts. If their analysis is superficial at its core – based on simple comparisons of parties' costs coupled with assumptions about how the merged parties will get the best of both worlds – the projections may not carry the day. Rather, the parties and their experts must also explain why those savings can be practically achieved without any degradation in product quality.

This means that, for purchasing synergies, the parties may need to show how vendors would realize benefits that offset the greater discounts they are being asked to provide. How, for example, does the increased volume allow them to lower their costs, achieve their own economies of scale, or reduce their risk? Explaining how the merger removes costs from the entire supply chain, rather than simply shifting it from one link to another, addresses both the concurrence's legal concerns about bargaining-power-inspired efficiencies and the majority's factual concerns about the rarity of a free lunch. For other kinds of synergies – like reduced head-count or changes in product offerings – the parties will need to show that the contemplated changes would not reduce product quality or customer choice -- "withdraw[ing] a product that a significant number of customers strongly prefer … can constitute a harm to customer."

Third, Anthem suggests that parties will need to show that competition – not industry structure – will force the merging parties to pass on the savings and reduce prices. While this makes efficiencies arguments difficult in deals resulting in merger to monopoly, this view of the efficiencies defense dovetails nicely with the overall competitive effects analysis in deals involving lesser degrees of concentrations. Rather than sidestep the question of competition, as Anthem tried to do, merging parties must show that competition is so great post-merger that the incentive to further increase market share by passing along the cost savings will dominate any presumed incentive to raise prices.

[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.

© Proskauer Rose LLP | Attorney Advertising

Written by:

Proskauer Rose LLP
Contact
more
less

Proskauer Rose 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.