CFIUS Publishes Proposed FIRRMA Regulations, Part 1: A Sea Change for Foreign Investments in U.S. Businesses

Ropes & Gray LLP

Ropes & Gray LLP

On September 17, 2019, the U.S. Department of the Treasury published proposed regulations to implement provisions of the Foreign Investment Risk Review Modernization Act (“FIRRMA”), signed into law by President Donald Trump on August 13, 2018, that were not addressed by the critical technology pilot program announced by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) in October 2018.1

The draft regulations set forth in the Proposed Rules, if implemented in their current form, would mark a significant expansion of CFIUS’s jurisdiction to review foreign investments in the United States. Among other changes, the Proposed Rules would provide the Committee with the ability to review non-controlling investments by foreign persons in certain categories of U.S. businesses, including those dealing in critical infrastructure and sensitive data, and make certain filings by foreign government-affiliated investors mandatory for the first time. The Proposed Rules also would alleviate existing CFIUS-related considerations for certain foreign investors, including by codifying exceptions to CFIUS’s jurisdiction, adjusting the procedures used to notify CFIUS of covered transactions, and potentially creating exclusions from the Committee’s jurisdiction for investors associated with certain countries.

I. How We Got Here

CFIUS is an interagency committee with authority to review certain foreign investments in the United States. The Committee received authority to review foreign transactions following passage of the Exon-Florio Amendment, which amended Section 721 of the Defense Production Act of 1950 and granted the President authority to block foreign investments in the United States when “the transaction threatens to impair the national security of the United States.”2

CFIUS has authority to review any “covered transaction,” which historically has meant “any transaction . . . by or with any foreign person[] which could result in control of a U.S. business by a foreign person.”3 FIRRMA—which was motivated by the perception that the existing CFIUS regime was ill-equipped to handle new threats to U.S. national security posed by foreign investment—introduced key reforms to the Committee’s review authority and process, including provisions expanding CFIUS’s jurisdiction to cover non-passive, non-controlling foreign investments in certain categories of U.S. businesses, making certain filings mandatory, and introducing an abbreviated declaration process.

In October 2018, CFIUS implemented a “pilot program” that (1) expanded CFIUS’s jurisdiction to certain non-passive investments in critical technology companies; and (2) introduced a mandatory notification requirement for transactions involving critical technology companies. The pilot program applies to investments in U.S. businesses that produce, design, test, manufacture, fabricate, or develop “critical technology” and that afford the foreign investor:

  • Control rights over the pilot program U.S. business;
  • Access to any material nonpublic technical information in the possession of the pilot program U.S. business;
  • Membership or observer rights on the board of directors or equivalent governing body of the pilot program U.S. business or the right to nominate an individual to a position on the board of directors or equivalent governing body of the pilot program U.S. business; or
  • Any involvement, other than through voting of shares, in substantive decision-making of the pilot program U.S. business regarding the use, development, acquisition, or release of critical technology.

The remainder of FIRRMA was scheduled to be implemented by February 2020. The Proposed Rules represent the U.S. Government’s effort to meet this deadline.

II. Expansion of Jurisdiction

Building off of the critical technology pilot program, the Proposed Rules would expand CFIUS’s jurisdiction to “covered investments,” defined to include an investment by a foreign person in an unaffiliated “TID U.S. Business” that affords the foreign investor:

  • Access to any material nonpublic technical information4 in the possession of the TID U.S. Business;
  • Membership or observer rights on the board of directors or equivalent governing body of the TID U.S. Business or the right to nominate an individual to a position on the board of directors or equivalent governing body of the TID U.S. Business; or
  • Any involvement, other than through voting of shares, in substantive decision-making5 of the TID U.S. Business regarding either (1) the use, development, acquisition, safekeeping, or release of sensitive personal data of U.S. citizens maintained or collected by the TID U.S. Business; (2) the use, development, acquisition, or release of critical technologies; or (3) the management, operation, manufacture, or supply of covered investment critical infrastructure.

31 C.F.R. § 800.211(b)(1)-(3). In short, if a foreign investor were to make a non-controlling investment a “TID U.S. Business,” pursuant to which the investor acquires one of the above rights, the investment would be a “covered investment” within the scope of CFIUS’s jurisdiction.

The term “TID U.S. Business”—short for Technology, Infrastructure, and Data U.S. Business—covers the three categories of U.S. businesses that were the central focus of FIRRMA; namely, U.S. businesses that:

  • Produce, design, test, manufacture, fabricate, or develop one or more critical technologies;
  • Perform the functions as set forth in the appendix of the Proposed Rules with respect to covered investment critical infrastructure; or
  • Maintain or collect, directly or indirectly, sensitive data of U.S. citizens.

31 C.F.R. § 800.248(a)-(c).

Critical Technology

The Proposed Rules specify that they do “not modify the regulations currently at 31 CFR Part 801, which sets forth the Pilot Program Interim Rule” and that “CFIUS continues to evaluate the Pilot Program Interim Rule, and the Department of the Treasury welcomes comments on the retention of the mandatory declaration aspect of the Pilot Program Interim Rule for certain transactions involving critical technologies.”6

Importantly, the definition of “critical technology” set forth in the Proposed Rules mirrors the definition in effect under the pilot program, and applies to (1) items controlled under the International Traffic in Arms Regulations and included on the United States Munitions List; (2) certain items controlled under the Export Administration Regulations and included on the Commerce Control List; (3) certain nuclear-related materials; (4) select agents and toxins regulated under the Select Agents and Toxins Regulations; and (5) emerging and foundational technologies controlled pursuant to the Export Control Reform Act (“ECRA”). 31 C.F.R. § 800.215(a)-(f). The Proposed Rules clarify that “[a]s technologies become controlled pursuant to rulemaking under ECRA, they will automatically be covered under the definition of ‘critical technologies’ under part 800.”7 However, to date, the U.S. Department of Commerce has not issued proposed rules under ECRA, and the categories of technology that will become subject to export controls on a going-forward basis have not yet been announced.

In brief, the status quo would remain largely in effect for evaluating what U.S. businesses qualify as U.S. critical technology companies (and, accordingly, TID U.S. Businesses), though this definition will expand as ECRA is implemented (and could be subject to further change as CFIUS continues to assess the contours of the critical technology pilot program).

Critical Infrastructure

Critical infrastructure is defined in the Proposed Rules, at a high level, as “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security.” 31 C.F.R. § 800.214. However, only a subset of critical infrastructure is relevant to the new jurisdictional standards set forth in the Proposed Rules. This subset of critical infrastructure is defined as “covered investment critical infrastructure,” and includes “the systems and assets, whether physical or virtual, set forth in” the appendix to the Proposed Rules. 31 C.F.R. § 800.212.

Appendix A to the Proposed Rules sets forth guidance regarding (1) the categories of infrastructure that qualify as “covered investment critical infrastructure” and; (2) the functions a U.S. business must perform with respect to covered investment critical infrastructure to qualify as a “TID U.S. Business.” A simplified version of that guidance is set forth below.

Covered Critical Infrastructure Covered Functions8
Internet protocol networks with access to other internet protocol networks via settlement free-peering
Telecommunication or information services, as defined under the Communications Act, or fiber optic cable that directly serves military installations Owns or operates
Owns or operates
Internet exchange points that support public peering Owns or operates
Submarine cable systems requiring licenses pursuant to the Cable Landing Licensing Act of 1921 (e.g., associated submarine cable, submarine cable landing facilities, and facilities performing support functions for such systems) Owns or operates
Submarine cable, landing facility, or facility that performs network management, maintenance, or other operational functions for submarine cable systems (described above) Supplies or services
Data centers collocated at submarine cable landing points, landing stations, or termination stations Owns or operates
Satellite or satellite systems providing services directly to the Department of Defense, or components thereof Owns or operates
Industrial resources other than commercially available off-the-shelf items (as defined in the National Defense Authorization Act for Fiscal Year 1996, as amended) that are manufactured or operated for a Major Defense Acquisition Program or Major System (as defined the Defense Technical Corrections Act of 1987), if either (1) the U.S. business is a single source, sole source, or strategic multisource; (2) the industrial resource requires 12 months or more to manufacture or is a “long lead” item Manufactures
Industrial resources other than commercially available off-the-shelf items (as defined in the National Defense Authorization Act for Fiscal Year 1996, as amended) that have been manufactured pursuant to a “DX” priority rated contract or under the Defense Priorities and Allocations System regulation in the preceding 24 months Manufactures
Facilities in the United States that manufacture either (1) specialty metal, covered metal, or chemical weapons antidotes contained in automatic injectors (all as defined in 10 U.S.C. §§ 2533b, 2534); or (2) carbon, alloy, and armor steel plate that is in Federal Supply Class 9515 or described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute Manufactures (any of the foregoing materials)
Industrial resources other than commercially available off-the-shelf items (as defined in the National Defense Authorization Act for Fiscal Year 1996, as amended) that have been funded, in whole or in part, during the past 60 months, by certain defense programs, including the Defense Production Act of 1950 Title III program, the Industrial Base Fund, the Rapid Innovation Fund, the Manufacturing Technology Program, the Defense Logistics Agency Warstopper Program, or the Defense Logistics Agency Surge and Sustainment contract Manufactures (any of the foregoing materials)
Systems, including facilities, for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system (as defined in the Federal Power Act) Owns or operates
Electrical storage resource (as defined by regulation) physically connected to that bulk-power system Owns or operates
Facilities that provide electric power generation, transmission, distribution, or storage directly to or located on any military installation Owns or operates
Industrial control systems utilized by systems comprising the bulk-power system or military installations, as described above Manufactures or services
Individual refineries with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products, or collections of one or more refineries owned or operated by a single U.S. business with the aggregate capacity to produce 500,000 or more barrels per day (or equivalent of refined oil or gas products) Owns or operates
Crude oil storage facilities with the capacity to hold 30 million barrels or more of crude oil Owns or operates
Liquefied natural gas (LNG) import or export terminals requiring approval under the Natural Gas Act or a license pursuant to the Deepwater Port Act, or natural gas underground storage facilities or LNG peak-shaving facilities requiring a certificate of public convenience and necessity under the Natural Gas Act Owns or operates
Financial market utilities that the Financial Stability Oversight Council has designated as systematically important pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act Owns or operates
Exchanges registered under section 6 of the Securities Exchange Act of 1934 that facilitates trading in any “national market system security” (as defined by regulation), and which exchange during at least four of the prior six months has either (1) ten percent or more of the average daily dollar volume reported by applicable transaction reporting plans (for most national market system securities); or (2) fifteen percent or more of the same (for listed options) Owns or operates
Technology service providers in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provide core processing services Owns or operates
Rail lines and associated connector lines designated as part of the Department of Defense’s Strategic Rail Corridor Network Owns or operates
Interstate oil pipelines that (1) have the capacity to transport either 500,000 barrels per day or more of crude oil or 90 million gallons per day or more of refined petroleum product; or (2) directly serve the strategic petroleum reserve, as defined in the Energy Policy and Conservation Act Owns or operates
Interstate natural gas pipelines with an outside diameter of 20 or more inches Owns or operates
Industrial control systems utilized by the interstate oil or natural gas pipelines described above Owns or operates
Specified airports Owns or operates
Specified maritime ports, as well as individual terminals at such ports Owns or operates
Public water systems, as defined in the Safe Drinking Water Act, or treatment works, as defined in the Clean Water Act, which either regularly serve 10,000 individuals or more or directly serve military installations Owns or operates
Industrial control systems utilized by public water systems or treatment works, as described above Manufactures or services

In short, if a U.S. business performs the specified service (i.e., owns, operates, manufactures, services, supplies) with respect to one of the identified categories of “covered investment critical infrastructure,” the U.S. business qualifies as a “TID U.S. Business,” and the expanded jurisdictional rules would apply.

Sensitive Data

The Proposed Rules define “sensitive data” to include certain categories of “identifiable data,” as defined under the Proposed Rules, and “genetic information,” as defined in U.S. Department of Health and Human Services (“HHS”) regulations:

  • “Identifiable data” is defined as “data that can be used to distinguish or trace an individual’s identity, including without limitation through the use of any personal identifier,” and generally does not include “aggregated data or anonymized data” (unless a party has “the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual’s identity”) or “encrypted data” (unless the U.S. business “has the means to de-encrypt the data so as to distinguish or trace an individual’s identity”). 31 C.F.R. § 800.227.
  • “Genetic information” is defined under HHS regulations to include genetic tests, manifestations of diseases or disorders, and requests for, or receipt of, genetic services (or participation in clinical research relating to genetic services), and excludes information about sex or age. 45 C.F.R. § 160.103.

For identifiable data to be deemed sensitive data, it must (1) be maintained or collected by a qualifying U.S. business; and (2) fall within a designated category of information. A simplified version of the requirements is set forth below (with one of the points in each column necessary for the “sensitive data” definition to apply).

Category of U.S. Business Category of Data
Targets or tailors9 products or services to any U.S. executive branch agency or military department with intelligence, national security, or homeland security responsibilities (or personnel and contractors thereof) Data that could be used to analyze or determine an individual’s financial distress
Has maintained or collected covered data on greater than one million individuals at any point over the preceding twelve (12) months A set of data in a consumer report, as defined pursuant to 15 U.S.C. § 1681a, subject to exceptions
Has demonstrated a business objective to maintain or collect such data on greater than one million individuals and such data is an integrated part of the U.S. business’s primary products or services A set of data in an application for health insurance, long-term care insurance, professional liability insurance, mortgage insurance, or life insurance
  Data relating to the physical, mental, or psychological health condition of an individual
  Non-public electronic communications (e.g., email, messaging, chat communications) between or among users of a U.S. business’s products or services
  Geolocation data collection by positioning systems, cell phone towers, or WiFi access points (including mobile applications, vehicle GPS, other onboard mapping tools, or wearable electronic devices)
  Biometric enrollment data, including without limitation facial, voice, retina/iris, and palm/fingerprint templates
  Data stored and processed for generating a state or federal government identification card
  Data concerning U.S. Government personnel security clearance status
  Set of data in an application for a U.S. Government personnel security clearance or an application for employment in a position of public trust

31 C.F.R. § 800.241(a)(1). Accordingly, if a U.S. business (1) qualifies as one of the above categories of U.S. business and deals in one of the above categories of identifiable data; or (2) deals in genetic data, it deals in “sensitive personal data.” The Proposed Rules also clarify that identifiable data is not “sensitive personal data” if it relates exclusively to data maintained or collected by a U.S. business concerning employees (unless the employees work for a U.S. Government contractor and hold personnel security clearances) or is a matter of public record. Id. § 800.241(b)(1)-(2).

In sum, if a U.S. business maintains or collects, directly or indirectly, any “sensitive personal data,” the U.S. business qualifies as a “TID U.S. Business,” and the expanded jurisdictional rules would apply.

III. Mandatory Filing Requirements

The Proposed Rules would maintain—at least for the time being—the mandatory notification requirement for investments in TID U.S. Businesses dealing in critical technology. Importantly, subject to the exception described below, the Proposed Rules would not extend the mandatory notification requirement to TID U.S. Businesses that deal in critical infrastructure or sensitive personal data. Accordingly, while both control transactions and “covered investments” in such businesses would be within CFIUS’s jurisdiction, there would not be a mandatory notification requirement (or potential failure-to-file penalty) in place for either of these two categories of transactions.

Of note, the Proposed Rules would introduce a new, mandatory filing requirement for transactions that “result[] in the acquisition of a substantial interest in a TID U.S. Business by a foreign person in which a foreign government has a substantial interest.” 31 C.F.R. § 800.401. “Substantial interest” is defined as a “voting interest, direct or indirect, of 25 percent or more by a foreign person in a U.S. business and a voting interest, direct or indirect, of 49 percent or more by a foreign government in a foreign person.” 31 C.F.R. § 800.244(a). (For funds and partnerships, a foreign government is deemed to have a “substantial interest” if it holds either 49% of the interest in the general partner or has 49% of the limited partner voting interest.) Id. § 800.244(b). Accordingly, if a foreign entity in which a foreign government holds a 49 percent or greater interest acquires 25 percent or greater interest in a TID U.S. Business, a filing would be mandatory.

As under the critical technology pilot program, parties that fail to submit a mandatory filing may face penalties. The failure-to-file penalties can be up to $250,000 or the value of the transaction at issue (whichever is greater). 31 C.F.R. § 800.901(b).

IV. Exceptions

While the net effect of the Proposed Rules is to significantly expand CFIUS’s jurisdiction, the Proposed Rules also incorporate noteworthy carve outs to the Committee’s jurisdiction, including:

  • Incremental Acquisitions: Any transaction in which a foreign person acquires an additional interest in a U.S. business, over which the same foreign person previously acquired control, would not be subject to CFIUS’s jurisdiction, provided that the initial investment was noticed to (and approved by) the Committee. 31 C.F.R. § 800.305.
  • Lending Transactions: Any transaction that involves only “[t]he extension of a loan or a similar financing arrangement by a foreign person” would not, “by itself, constitute a covered transaction,” though certain exceptions apply. 31 C.F.R. § 800.306(a). For example, a loan that provides “financial or governance rights characteristic of an equity investment but not of a typical loan may constitute a covered transaction.” Id. § 800.306(b).
  • Indirect Investments through Investment Funds: As under the critical technology pilot program, indirect investments by foreign persons in TID U.S. Businesses through investment funds that afford the foreign person membership as a limited partner or equivalent on an advisory board or a committee of the fund are not subject to CFIUS’s jurisdiction, provided certain conditions are met. 31 C.F.R. § 800.307. As a general matter, for the exception to apply, the limited partner may not obtain control rights or any of the rights that trigger a “covered investment.”

While none of these exceptions is new conceptually, several have not been codified. CFIUS’s decision to carry over the investment fund exception from the critical technology pilot program will likely be of particular consequence to funds, though the availability—and limitations of—this exception have not yet been significantly tested.

V. White List?

One of the questions that the U.S. Government has grappled with in implementing FIRRMA is whether to issue a so-called “white list” of countries or actors that are exempt from CFIUS’s jurisdiction, to reduce the burden on the Committee of reviewing notices and declarations (and to focus CFIUS’s energy on the actors that, in the U.S. Government’s estimation, present the greatest national security risk). The Proposed Rules suggest that the Committee is looking seriously at implementing a version of a “white list,” though the exceptions appear narrow and key details are not yet available.

The Proposed Rules introduce the concept of an “excepted foreign state.” 31 C.F.R § 800.219. However, the Proposed Rules do not define which countries will be considered “excepted foreign states.” Instead, this list will be “separately published on the Department of the Treasury website” and, “[a]s this is a new concept with potentially significant implications for the national security of the United States, CFIUS initially intends to designate a limited number of eligible foreign states.”10 CFIUS has not yet provided any guidance as to which countries it is considering as excepted foreign states.

Of note, not all parties located in or organized under the laws of an “excepted foreign state” would be exempt from CFIUS’s jurisdiction. Instead, an “excepted investor” would be defined as:

  • A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;
  • A foreign government of an excepted foreign state; or
  • A foreign entity that meets certain criteria, including: (1) being organized under the laws of either an excepted foreign state or the United States; (2) having a principal place of business in an excepted foreign state or the United States; (3) having all members of its board of directors (or comparable body) as citizens of either the United States or an excepted foreign state; and (4) having all investors with either an equity interest of five percent or more, a right to five percent of the profits, or a right to five percent or more of the assets of the entity (upon dissolution) meeting the same tests set forth in (1) through (3), above.

31 C.F.R. § 800.220(a). In addition, even if all of the above criteria are met, a foreign person would not qualify as an “excepted investor” if, in the past five years, that person has been subject to any adverse action by CFIUS or a range of other agencies of the U.S. government, including the agencies responsible for administering U.S. economic sanctions and export control laws. Id. § 800.220(c). Furthermore, if the above criteria are met as of the date of the transaction but cease to become effective during the three-year period following the completion date, the designation of “excepted investor” no longer applies (and CFIUS could, in theory, retroactively review the formerly exempt transaction). Id. § 800.220(d).

VI. Procedural Changes

Finally, the Proposed Rules would introduce a number of procedural changes, including expanded the availability of the abbreviated declaration—introduced in connection with the critical technology pilot program—to all covered transactions. 31 C.F.R. § 800.403(a); 31 C.F.R. § 800.501(a). Accordingly, for every transaction within CFIUS’s jurisdiction, if the parties opt to file, they will face the strategic choice of submitting either an abbreviated declaration (less preparation time and potential for faster resolution, but no guarantee of final action by the Committee) or full-form notice (more preparation and review time, but guarantee of final action by the Committee). CFIUS will introduce standardized forms for both types of submissions that parties may use.

In addition to the penalties for failing to file mandatory declarations discussed above, the Proposed Rules would clarify that parties who submit “a material misstatement or omission in a declaration or notice, or make[] a false certification” may face a civil penalty of up to $250,000 per violation. 31 C.F.R. § 800.901(a). Finally, the Proposed Rules do not yet introduce a filing fee, instead suggesting that the Department of Treasury will address filing fees at a later date.11

VII. Next Steps

CFIUS has provided interested parties one month, or until October 17, 2019, to provide comments that the Committee may consider in finalizing the Proposed Rules. After comments are received, CFIUS has until February 13, 2020 to issue final, binding rules. (Providing interested parties such a brief window to provide comments suggests that the Committee may, consistent with anecdotal reports, be pushing to issue the final rules sooner than technically required under FIRRMA.)

Once final rules are issued, they will become effective immediately, including for pending transactions. The Proposed Rules implementing FIRRMA would significantly expand CFIUS’s jurisdiction, and may—if implemented in their current form—fundamentally alter how foreign parties seeking to invest in the United States assess potential opportunities.

Part 2 of this alert will cover the new proposed regulations CFIUS issued simultaneously to address its expanded jurisdiction under FIRRMA to review certain real estate transactions.

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.

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    • 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:

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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.