CFTC and European Commission Make Progress on Cross-Border Agreements

by Skadden, Arps, Slate, Meagher & Flom LLP
Contact

Skadden, Arps, Slate, Meagher & Flom LLP

On October 13, 2017, the Commodity Futures Trading Commission (CFTC) announced two cross-border developments with the European Commission (EC) that take significant steps toward reconciling regulation of cross-border derivatives and cross-border entities generally. First, the CFTC approved a determination finding the CFTC and European Union (EU) margin requirements for uncleared swaps to be comparable.1 The EC also adopted an equivalence decision regarding the CFTC margin requirements.2 Second, CFTC Chairman J. Christopher Giancarlo and Valdis Dombrovskis, the EC’s Vice President for Financial Stability, Financial Services and Capital Markets Union, announced “A Common Approach on Certain Derivatives Trading Venues” (the Giancarlo-Dombrovskis Common Approach).3

Chairman Giancarlo stated, “Today marks a significant milestone in cross-border harmonization between the EC and the CFTC. These cross-border measures will provide certainty to market participants and also ensure that our global markets are not stifled by fragmentation, inefficiencies, and higher costs. Indeed, these measures are critical to maintaining the integrity of our swaps markets.”4 Vice President Dombrovskis echoed that sentiment stating, “[F]inancial markets are truly global. Working together is the best way to ensure their stability and resilience while avoiding market fragmentation and overregulation. ... Together, these two measures will provide certainty to markets, minimise regulatory arbitrage, and encourage competition on a level playing field.”5 While the equivalence determinations regarding the EU uncleared margin requirements under the European Market Infrastructure Regulation (EMIR)6 and CFTC uncleared margin requirements are effective immediately,7 implementation of the Giancarlo-Dombrovskis Common Approach is expected to take more time.

Margin Requirements for Uncleared Swaps

In January 2016, the CFTC finalized its uncleared margin rule, which requires certain registered swap dealers to post and collect initial and daily variation margin for over-the-counter, uncleared swaps entered into with other swap dealers8 and “financial end users” (e.g., private funds, securitization vehicles, pension plans, insurance companies, registered investment companies and business development companies).9 (The U.S. banking regulators (Prudential Regulators) also adopted largely parallel rules for those registered swap dealers they regulate.)10 The CFTC’s requirements became effective for variation margin during this past year, causing adjustments to current margining practices.11 Ensuring compliance has required most swap dealers to amend their current documentation with other market participants for uncleared swaps.12 The CFTC requirements concerning initial margin also are requiring adjustments, albeit subject to a phased-in compliance schedule, with compliance dates extending to 2020.13

The CFTC subsequently published a final rule specifying how its margin requirements would apply to cross-border transactions.14 This rule confirmed that substituted compliance would be available for certain foreign entities that were swap dealers subject to both CFTC and foreign requirements,15 but not until the CFTC issued a comparability determination for the applicable foreign jurisdiction.16

The absence of a CFTC comparability determination meant that swap dealers subject to multiple regulators were expected to comply with both sets of rules once they became effective.17 This caused increasing concerns as variation margin requirements became effective18 due to the differences in the regulatory approaches to margin taken by the CFTC and EC (such as the kinds of transactions19 and counterparties subject to margin,20 which types of eligible collateral can be posted,21 collateral valuation methods22 and margin transfer timing23). In order to ameliorate the obstacles that would have been created if swap dealers were required to maintain dual compliance systems, the CFTC’s Division of Swap Dealer and Intermediary Oversight provided temporary relief from compliance with the CFTC margin requirements to registered swap dealers that complied with the EU margin requirements.24 The CFTC’s new equivalence determination will take the place of the temporary relief and provide much-needed certainty surrounding how the CFTC will perceive a swap dealer’s compliance with the EU margin requirements.

As a result of its comparability determination, the CFTC noted:25

a [swap dealer] that is subject to the both the [CFTC] Final Margin Rule and EU’s margin rules with respect to an uncleared swap that is also a non-centrally cleared OTC derivative may rely on substituted compliance for all aspects of the [CFTC] Final Margin Rule and the [CFTC] Cross-Border Margin Rule. Any such [swap dealer] that, in accordance with this comparability determination, complies with the EU margin rules, would be deemed to be in compliance with the [CFTC] Final Margin Rule but would remain subject to the Commission’s examination and enforcement authority.26

In acknowledging the differences in approaches by the two regulators, the CFTC noted that, in determining equivalence, “[i]nstead of demanding strict uniformity with the Commission’s margin requirements, the Commission evaluates the objectives and outcomes of the foreign margin requirements in light of foreign regulator(s)’ supervisory and enforcement authority.”27 Nevertheless, under the CFTC’s equivalence determination, a swap dealer cannot voluntarily comply with the EU margin requirements; thus, substituted compliance only is available in scenarios where both the entity and the transaction are otherwise subject to both the CFTC and EU margin regimes.28

Giancarlo-Dombrovskis Common Approach on Certain Derivatives Trading Venues

In 2009, global leaders agreed that all standardized over-the-counter derivative contracts should be traded on exchanges or electronic trading platforms, where appropriate.29 The rate at which this reform has been implemented has varied across jurisdictions. The United States implemented the swaps trading mandate in 2014. The EU is expected to implement its trading mandate on January 3, 2018.

The Commodity Exchange Act (CEA) requires counterparties to execute certain swap transactions on a designated contract market (DCM), a registered swap execution facility (SEF) or a SEF that is exempt from registration.30 The CFTC may exempt, conditionally or unconditionally, a SEF from registration if the CFTC finds that the facility is “subject to comparable, comprehensive supervision and regulation on a consolidated basis by ... the appropriate governmental authorities in the home country of the facility.”31 Anyone subject to the EU’s corresponding trade execution mandate must execute certain swap transactions on regulated markets, multilateral trading facilities, organized trading facilities or certain third-country trading venues.32 Qualifying third-country trading venues are subject to an equivalence regime. To meet the EU requirements, the EC must determine that the legal and supervisory framework of that third country ensures that a trading venue authorized in that country complies with legally binding requirements that are equivalent to the requirements for regulated markets, multilateral trading facilities and organized trading facilities resulting from the Markets in Financial Instruments Regulation, the Markets in Financial Instruments Directive and the Market Abuse Regulation.33 Third-country trading venues must also be subject to effective supervision and enforcement in that third country, and the third country must provide an effective equivalent system for the recognition of trading venues authorized under the Markets in Financial Instruments Directive.34

Without action by the CFTC and EC, neither jurisdiction’s market participants would satisfy the applicable trade execution mandate by transacting on the other jurisdiction’s platforms. With January 3, 2018, fast approaching, the industry has expressed concern that without an agreement, swaps liquidity would be fragmented. According to Chairman Giancarlo, the Giancarlo-Dombrovskis Common Approach “will ensure that European firms and U.S. firms can trade on each other’s registered derivatives platforms.”35

The Giancarlo-Dombrovskis Common Approach represents a significant step in preserving cross-border access to the derivatives markets, but the agreed approach must still be finalized. This process — the announcement of a common approach followed by more specific action by the two commissions — is consistent with the process the CFTC and the EC followed to address cross-border issues for central counterparties in 2016.36

Vice President Dombrovskis intends to propose that the EC adopt an equivalence decision to recognize CFTC-authorized SEFs and DCMs that operate in the United States as eligible venues for the execution of those derivatives transactions that will be subject to the EU trading obligation, provided the requirements of the Markets in Financial Instruments Regulation, the Markets in Financial Instruments Directive and the Market Abuse Regulation are met. Similarly, CFTC staff intends to propose, and Chairman Giancarlo will support putting before his fellow commissioners for a vote, an exemption by the CFTC of EU-authorized swap trading venues (for this purpose, multilateral trading facilities and organized trading facilities) from the requirement to register with the CFTC as SEFs, provided that they satisfy the comparability standard set forth in CEA Section 5h(g).37 This will render the exempt EU venues operating in the EU eligible venues for purposes of complying with the CFTC trade execution requirement.

We will monitor the implementation of the Giancarlo-Dombrovskis Common Approach and provide updates as warranted.

____________________

1 See Press Release (PR 7629-17), CFTC, “CFTC Comparability Determination on EU Margin Requirements and a Common Approach on Trading Venues” (Oct. 13, 2017) (hereafter “CFTC Press Release”).

2 See Press Release, European Commission, “Vice-President Valdis Dombrovskis’ Press Statement With the US Commodity Futures Trading Commission (CFTC)” (Oct. 13, 2017) (hereafter “EC Press Release”).

3 Supplemental Document (PR 7629-17), CFTC, “A Common Approach on Certain Derivatives Trading Venues” (Oct. 13, 2017).

4 See CFTC Press Release, supra note 1.

5 See EC Press Release, supra note 2.

6 Council Regulation 648/2012, 2012 O.J. (L 201) 1 (EU) (hereafter “EMIR”); Commission Delegated Regulation 2016/2251, 2016 O.J. (L 340) 9 (EU) (hereafter “EU Del. Reg.”).

7 See CFTC Notice, Comparability Determination for the European Union: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, (Oct. 13, 2017) (hereafter “CFTC Comparability Determination”). The comparability determination is specific to registered swap dealers that are subject to the CFTC’s margin requirements and not the Prudential Regulators margin requirements, as the Prudential Regulators have not yet issued a comparability determination for the European margin requirements. See id. at 14-15.

8 The CFTC rules apply only to swap dealers that are not subject to regulation by the Prudential Regulators. See Commodity Exchange Act (hereafter “CEA”) Section 4s(e)(2)(B).

9 See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 Fed. Reg. 636 (Jan. 6, 2016) (codified at 17 C.F.R. pt. 23) (hereafter “CFTC Final Margin Rule”).

10 See Margin and Capital Requirements for Covered Swap Entities, 80 Fed. Reg. 74,840 (Nov. 30, 2015) (codified at 12 C.F.R. pts. 45, 237, 349, 624, 1221); see also Margin and Capital Requirements for Covered Swap Entities, 81 Fed. Reg. 50,605 (Aug. 2, 2016) (codified at 12 C.F.R. pts. 45, 237, 349, 624, 1221). For more information about the Prudential Regulators’ requirements, seePrudential Regulators Finalize Margin Requirements for Non-Cleared Swaps,” Skadden client alert, Nov. 2, 2015, andPrudential Regulators Extend Swaps Clearing Exemptions and Exceptions to Non-Cleared Swap Margin Requirements,” Skadden client alert, Aug. 9, 2016.

11 The variation margin requirements became effective for all uncleared swaps with swap dealer counterparties on March 1, 2017, although the U.S. regulators — in conjunction with most foreign regulators — provided some flexibility in response to widespread concerns that many swap dealers were unable to achieve full compliance by that date. SeeRegulators Provide Some Flexibility on the Swaps Variation Margin Compliance Deadline,” Skadden client alert, Feb. 24, 2017.

12 SeeNon-Cleared Swap Variation Margin Requirements to Spark Credit Support Annex Amendments for Financial End Users,” Skadden client alert, Dec. 2, 2016.

13 See 17 C.F.R. § 23.161.

14 See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants — Cross-Border Application of the Margin Requirements, 81 Fed. Reg. 34,818 (May 31, 2016) (codified at 17 C.F.R. pt. 23) (hereafter “CFTC Cross-Border Rule”). For more information about the final cross-border rule, seeCFTC Finalizes Cross-Border Margin Rules for Uncleared Swaps,” Skadden client alert, June 3, 2016.

15 See 17 C.F.R. § 23.160(b).

16 See 17 C.F.R. § 23.160(b)-(c).

17 See CFTC Cross-Border Rule, supra note 14 at 34,821.

18 The CFTC has only published one other comparability determination for the margin requirements finalized by the Japanese regulator, see Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 Fed. Reg. 63,376 (Sept. 15, 2016).

19 The CFTC requirements apply to uncleared swaps executed by registered swap dealers and covered counterparties, thereby excluding transactions such as foreign exchange (FX) spot transactions, which are not subject to CFTC jurisdiction, and FX forward transactions and FX swaps, which are excluded from the “swap” definition pursuant to the Department of Treasury’s 2012 determination. 17 C.F.R. §§ 23.150 (scope), 23.151 (definitions). In contrast, the EU margin requirements apply to all “OTC Derivatives,” as that term is defined in Annex I to Directive 2004/39/EC and as it is implemented by Articles 38 and 39 of Regulation (EC) No 1287/2006, which provides no similar carve-out. See EMIR Art. 2(7). The EU rules provide a temporary exception from the EU margin requirements for FX forwards. See EU Del. Reg. Art. 37(2).

20 The CFTC variation requirements apply to registered swap dealers with respect to uncleared swaps with other swap dealers as well as “financial end users.” 17 C.F.R. § 23.153. The definition of financial end user specifically includes a wide range of financial entities such as banks, credit institutions, money services businesses, entities regulated by the Federal Housing Finance Agency, entities regulated by the Farm Credit Administration, certain entities regulated by the U.S. Securities and Exchange Commission, insurance companies, pension plans, commodity pools and investment companies. It broadly includes any entity “that is, or holds itself out as being, an entity, person, or arrangement that raises money from investors, accepts money from clients, or uses its own money primarily for investing or trading or facilitating the investing or trading in loans, securities, swaps, funds, or other assets.” 17 C.F.R. § 23.151. The CFTC initial margin requirements apply to transactions between swap dealers and a smaller subset of “covered counterparties,” which are defined by the CFTC Final Margin Rule as “financial end users with material swaps exposure” (defined by the margin requirements to mean an entity that, together with its affiliates, has an average daily aggregate notional amount of certain transactions for June, July and August of the preceding calendar year that exceeds $8 billion) or other swap dealers. 17 C.F.R. §§ 23.151 (definitions); 23.152 (initial margin requirements).

The analogous definition in EU requirements, “financial counterparty,” is more limited, including investment firms, credit institutions, insurance companies, UCITS, pension plans and alternative investment funds that are authorized or registered in accordance with various EU directives. See EMIR Art. 2(8). All other entities that are also not clearing entities are “non-financial counterparties” and only subject to the margin requirements if their trading volume exceeds the clearing threshold. See EMIR Art. 2(9) (NFC definition), Art. 10(1) (NFC+ definition).

21 The EU margin requirements include certain types of collateral such as cash in the form of a claim for the repayment of money (e.g., money market deposits), corporate bonds, the most senior tranche of a securitization, and convertible bonds that can be converted only into equities listed on specific indexes whereas none of these collateral types are permitted under the CFTC margin requirements. Compare EU Del. Reg. Art. 4(1) and 17 C.F.R. § 23.156(a)(1), (b)(1).

22 Although many of the types of collateral permitted by the CFTC requirements are also permitted under the EU requirements, the EU requires the valuation percentage of certain types of collateral to be lower based on the credit rating of the issuing entity. See EU Del. Reg. Art. 6-7; Annex II.

23 In the initial margin context, the CFTC requirements set initial margin requirements based on the swap dealers’ daily recalculations of initial margin. 17 C.F.R. § 23.152(a)-(b). The EU margin requirements only require initial margin to be calculated after certain events during the lifetime of the transaction. EU Del. Reg. Art. 9(2)-(3); Art. 13(2). In the variation margin context, the CFTC requirements impose a same-day margin transfer obligation on registered swap dealers. 17 C.F.R. § 23.153(a)-(b). Although the EU requirements also impose shortened timing requirements, they permit variation margin to be transferred within two business days of the calculation date, where certain conditions are met. See EU Del. Reg. Art. 9(1); Art. 12.

24 SeeTime Limited No-Action Position for Swap Dealers Complying With European Union Uncleared Swap Margin Requirements,” CFTC Staff Letter No. 17-05, Feb. 1, 2017; see alsoExtension of Time Limited No-Action Position for Swap Dealers Complying With European Union Uncleared Swap Margin Requirements,” CFTC Staff Letter No. 17-22, Apr. 18, 2017.

25 See CFTC Comparability Determination, supra note 7 at 80.

26 See 17 C.F.R. § 23.160(c)(4).

27 See CFTC Comparability Determination, supra note 7 at 7.

28 See e.g., CFTC Comparability Determination, supra note 7 at 14 (explaining that substituted compliance would not be available where a swap dealer entered into a transaction that is an uncleared swap under the CEA and the CFTC Final Margin Rule but is not a non-centrally cleared OTC derivative under the laws of the EU, or where a transaction is a non-centrally cleared OTC derivative but is not an uncleared swap); see also id. at 18 (“the Commission reiterates that no [swap dealer] may rely on substituted compliance unless it and its transaction are subject to both the [CFTC] Final Margin Rule and the EU’s margin rules; a [swap dealer] may not voluntarily comply with the EU’s margin rules where such law does not otherwise apply. Likewise, a [swap dealer] that is not seeking to rely on substituted compliance should understand that the EU’s margin rules may apply to its counterparty irrespective of the [swap dealer’s] decision to comply with the [CFTC] Final Margin Rule.”) (emphasis added).

29 G-20 Leaders’ Statement, The Pittsburgh Summit (Sept. 24-25, 2009).

30 See CEA Section 2(h)(8).

31 See CEA Section 5h(g).

32 See Council Regulation 600/2014, 2014 O.J. (L 173), 84, 122 Art. 28.

33 See id.

34 See id.

35 J. Christopher Giancarlo, chairman, U.S. Commodity Futures Trading Comm’n, Prepared Remarks at Press Conference to Announce Comparability Determination on EU Margin Requirements and a Common Approach on Trading Venues (Oct. 13, 2017).

36 SeeDerivatives Regulators Reach Agreement on Cross-Border Harmonization for Central Clearing Counterparties,” Skadden client alert, Mar. 24, 2016.

37 Under Section 5h(g) of the CEA, “The [CFTC] may exempt, conditionally or unconditionally, a swap execution facility from registration under this section if the [CFTC] finds that the facility is subject to comparable, comprehensive supervision and regulation on a consolidated basis by ... the appropriate governmental authorities in the home country of the facility.”

Download pdf

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.

© Skadden, Arps, Slate, Meagher & Flom LLP | Attorney Advertising

Written by:

Skadden, Arps, Slate, Meagher & Flom LLP
Contact
more
less

Skadden, Arps, Slate, Meagher & Flom 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.