Construction In Brief: 2017 Volume 4

by Cohen Seglias Pallas Greenhall & Furman PC
Contact

Welcome to the newest edition of the Construction In Brief newsletter. This issue includes:

The Buy American Act: Are You Compliant?
By Lori Wisniewski Azzara

NJ Supreme Court Redefines When Construction Defect Claims Accrue
By Jonathan A. Cass and Joseph L. Sine

Still “Up in the Air”: More Drones and More Regulations
By Edward Seglias, Robert John O'Brien, and Matthew R. Skaroff

Third Circuit Determines That Employers Must Compensate Employees For Rest Breaks of 20 Minutes Or Less
By Christopher M. Galusha

The Buy American Act: Are You Compliant?

The federal government has a long-standing pref­erence for incorporating domestic materials and products into public construction projects. While a number of statutes and regulations promote this policy, the Buy American Act of 1933 (BAA) is the oldest and arguably most well-known. The essence of the BAA’s construction provisions sounds simple: the use of foreign-produced materials and products on public construction projects is prohibited. However, a dense web of regulations and statutes interact to create exceptions and exemptions to the BAA’s application, making the BAA one of the most complex bodies of law to comprehend. Those contractors who fail to comply with the BAA’s requirements can face costly legal issues, debarment or, in some situations, criminal investigation and prosecution. With the new admin­istration, now is the time to get familiar with the BAA, and the following primer is a good place to start.1

1. Does the BAA Apply to Your Project?
The first step is to look at the overall dollar value of the project: contracts for the construction, alteration or repair of any public work valued between $3,000 and $7,358,000 are sub­ject to the BAA. Construction contracts with values of $3,000 or below are exempt from the BAA and are viewed as “micro-purchases.” Construction contracts that exceed $7,358,000 may be subject to certain foreign trade agreements.

2. What Constitutes Domestic Construction Materials?
The BAA requires the use of only “domestic construction materials” on public projects. So what are domestic construc­tion materials? To answer this question, various definitions must be collectively considered. Start with the definition of “construction materials,” which are any article, material or supply brought to the construction site by a contractor or subcontractor to be incorporated into the project.

Next, consider the domestic requirement for construction materials. The BAA requires that every public contract in­clude a provision requiring contractors, subcontractors and suppliers to use only:

  • unmanufactured materials that have been mined or pro­duced in the United States; and
  • manufactured materials that have been manufactured in the United States “substantially” from materials mined, produced or manufactured in the United States.

While unmanufactured materials will be considered domestic if they are mined or produced in the United States, manufac­tured materials will only be considered domestic if (1) they are manufactured in the United States and (2) the cost of the components produced or manufactured in the United States exceeds 50% of the cost of all its components.

A component is any article, material, or supply incorporated directly into a construction material. The method for calculat­ing the cost of components depends on whether the compo­nent is purchased or manufactured by the contractor. If the contractor is purchasing the component, the acquisition cost will include transportation costs and any applicable tax. If the contractor is manufacturing the component, the manufactur­ing costs will include transportation and overhead. Bottom line: in order for a manufactured construction material to be considered domestic, the cost of the components produced in the United States has to be more than half of all of the component’s total cost. This in addition to the requirement that the construction material be manufactured in the United States, a requirement that contractors often overlook.

Construction materials may also be considered domestic if the material is a “commercially available off-the-shelf” (COTS) item. To qualify as COTS, an item must be customarily used by the general public for non-governmental purposes and must be sold in substantial quantities in the commercial marketplace.

If the construction material does not meet one of these requirements, it may not be incorporated into the project unless an exception to the BAA applies.

3. What Are the BAA’s Exceptions And How Do You Apply For Them?
There are a number of exceptions to the BAA that may al­low a contractor to acquire foreign construction materials. In order for an exception to apply, the contracting agency must determine that:

  • application of the BAA would be impracticable or incon­sistent with public interest. Often times, this occurs when the contracting agency has an agreement with a foreign government that the BAA will not apply;
  • a particular construction material is not sufficiently available in commercial quantities or not of sufficient quality; or
  • the cost of domestic construction material is unreasonable, i.e., the cost exceeds the cost of foreign construction mate­rial by more than 6%.

In addition, the passage of the Trade Agreement Act autho­rized the government to waive the BAA for eligible foreign products acquired through various trade agreements, such as certain free trade agreements and for World Trade Organiza­tion countries.

The onus is on the contractor to request the exception, but when does it need to do so? According to the Court of Ap­peals for the Federal Circuit Court, a contractor should make the request “in the first instance before contract award and surely before the contract has been performed.” Prior to submitting a price, contractors should determine whether the project will require the use of any foreign construction materi­als and include the BAA exception request with their offer. To avoid rejection of an offer that includes such a request, it is a best practice to submit an alternate offer based on the use of domestic construction material. Once an agency makes a determination that an exception applies, the foreign materi­als that have been accepted will be listed in the contract.

Exceptions can be granted after a contract is awarded, but this is a dangerous and risky road to go down, particularly if the foreign construction materials are already incorporated into the project. If requesting an exception post-award, a contrac­tor should be prepared to explain why the request was not made pre-award or why it was otherwise not reasonably fore­seeable. In the event the exception is granted post-award, adequate consideration must be negotiated and the contract must be modified to allow the use of the foreign construction material. If the request is denied post-installation, the cost of removing and replacing the foreign construction material falls on the contractor’s shoulders. Keep in mind that in addition to the removal and replacement costs, there may be delay and schedule impact costs assessed to the contractor.

4. What About Your Subcontractors and Suppliers?
The BAA applies to all construction materials used on public projects, including those provided by subcontractors and sup­pliers. In fact, contractors can be held liable for noncompliant construction materials incorporated into projects by their subcontractors or suppliers. It is, therefore, extremely impor­tant for contractors to be mindful of the BAA when entering into subcontracts and purchasing construction materials from suppliers. It is critical that a contractor confirm with its subcontractors and/or suppliers that all construction materials comply with the BAA. In addition to the required contract provision relating to manufactured and unmanufactured materials previously discussed, it is highly recommended that contractors include a flowdown provision in their subcontract that requires subcontractors to comply with the BAA.

5. What Happens If You Fail to Comply?
If the contracting agency determines that a contractor or subcontractor has used foreign construction materials without authorization, the agency can require that the materi­als be removed and replaced. If removal and replacement would be impracticable or cause undue delay to the project, the agency can decide to leave the unauthorized foreign construction material in place. However, the contractor is not out of the woods. If the agency finds the BAA violation to be “sufficiently serious,” the government can terminate the contract for default or suspend or debar the contractor, subcontractor or supplier. If the noncompliance with the BAA appears to be fraudulent, the agency can refer the matter for criminal investigation.

In addition, if an agency finds that a contractor has failed to comply with the BAA, those findings become a public record. Most importantly, the contractor, and any subcontractor or supplier associated or affiliated with the contractor, cannot be awarded another public contract for 3 years. Because all parties to a contract can be implicated in a single violation, it is in each party’s best interest to ensure that all construction materials incorporated into a project are BAA compliant or that an appropriate waiver has been timely requested and granted.

6. Isn’t All of This Going to Change?
On April 18, 2017, President Trump signed an Executive Order—Buy American and Hire American. The Order confirms the executive branch’s policy of maximizing the use of do­mestic goods and materials. Consistent with this policy, the Order directs agencies to “scrupulously” enforce the BAA and to minimize the use of waivers granted under the BAA.

While the Order itself does not substantively change the ap­plication of the BAA, it signals that significant changes to government contracting may be on the horizon. Now is the time to gain a better understanding of the BAA and its re­quirements. This article only scratches the surface of the BAA—a more in-depth analysis is necessary to ensure full compliance and prevent an unwary contractor from inadver­tently jeopardizing its ability to perform on future federal construction projects.

1 This article focuses on the BAA’s application to construction materials. The BAA also contains provisions that apply to supplies and prod­ucts purchased by the government or contractors that are incorporated into public projects. These provisions present an additional set of complicated questions that require a separate in-depth analysis as to their applicability.

This article was published in the July/August 2017 edition of the Master Builders’ Association of Western Pennsylvania publication, Breaking Ground.


NJ Supreme Court Redefines When Construction Defect Claims Accrue

In light of a recent decision by the New Jersey Supreme Court, individuals and entities owning recently constructed or renovated properties should take extra caution to ensure that they pursue any construction defect claims within the six-year statute of limitations. Otherwise, they may be left without any recourse.

On September 14, 2017, in The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, the New Jersey Supreme Court held that the statute of limitations for a construction defect begins to run when any person or entity “in the chain of ownership” first knows or should know about the defect.

Before Palisades, a plaintiff could rely on the “discovery rule” to avoid a statute of limitations defense. Under the discovery rule, a cause of action does not accrue until the plaintiff discovers, or by an exercise of reasonable diligence, should have discovered that he may have a basis for an actionable claim. Thus, in construction defect cases, the focus was on when the plaintiff (or current owner) knew or should have known that he had a claim. However, in Palisades, the Court reined in the scope of the discovery rule by placing the focus on when any owner of the property knew or should have known about the potential claim.

By way of brief background, in Palisades, the plaintiff, a Condominium Association, sued a general contractor and three subcontractors for construction defects at a building complex. At the time construction was substantially completed in May 2002, the building was owned by a different entity, Palisades A/V Acquisitions Co., LLC. Two years later, the building was sold to 100 Old Palisade, LLC, which converted the building into condominium units pursuant to the NJ Condominium Act. In July 2006, 100 Old Palisade, LLC turned control of the building over to the Condominium Association. In June 2007, an engineering and architectural firm hired by the Condominium Association to inspect the building issued a report, identifying several construction defects. Thereafter, the Condominium Association commenced actions against the contractors. The contractors moved for summary judgment on the grounds that the actions were barred by the six-year statute of limitations applicable to construction defect claims.

The trial court initially granted summary judgment for the contractors on the grounds that plaintiff’s claim accrued on the date the building complex was substantially complete. The Appellate Division reversed and, relying on the discovery rule, held that the claim did not accrue until the Condominium Association discovered the defects when its expert issued the report. The Supreme Court rejected both approaches, and remanded the case to the trial court for a “Lopez hearing” to determine whether either of the previous owners knew or should have known about the construction defects.

A Lopez hearing (named after the Supreme Court’s seminal decision, Lopez v. Swyer, is a pre-trial preliminary hearing held before the judge and outside of the presence of the jury to determine when the cause of action accrued. At a Lopez hearing, the trial court hears testimony, reviews deposition transcripts, and receives evidence before determining when the plaintiff (or, in light of Palisades, a prior property owner) knew or should have known about the construction defect.

Construction litigators should be prepared to adjust their strategy in cases involving statute of limitations defenses as a result of the Palisades decision. Because the owner bears the burden of proving that the claim was not and could not be known of until after substantial completion, contractors can assert statute of limitations defenses and require owners to prove that neither they nor the prior owners had any reason to discover the defect.

Attorneys for contractors should also pursue extensive discovery in advance of the Lopez hearing, including obtaining depositions and documents from prior owners relating to any inspection reports, pre-sale disclosures, and post-construction repairs. While the burden of proof is on the plaintiff, this discovery will be critical for the contractors because, with the right
testimony or evidence, a contractor can more expeditiously prevail if one person in the “chain of ownership” knew or should have known of the construction defect.

The Supreme Court’s decision may also have a serious impact on the real estate industry. This Court’s holding emphasizes the importance of a buyer’s vigorous due diligence when purchasing a property. Buyers should investigate any construction work performed on a property they intend to purchase to determine whether there is a construction defect. Further, if the buyer decides to proceed with the transaction after its due diligence, it should bring any defect claims within six years from substantial completion to avoid a potential statute of limitations defense. Additionally, the scrutiny into what the seller knew or should have known about construction-related problems involving the property, and the possibility that claims against the general contractor may be barred by the statute of limitations, may result in additional fraudulent concealment claims against sellers.

Only time will tell the full impact of this decision on buyers and sellers in a real estate transaction; however, should a statute of limitations issue arise, contractors and owners must be prepared to address whether anyone in the chain of ownership knew or should have known of the construction defect.


Still “Up in the Air”: More Drones and More Regulations

Drone use — as predicted — has grown more prevalent throughout the U.S. commercial marketplace and especially the construction industry. Last year, an estimated 2.5 million drones were sold in the United States, and approximately 670,000 drones were registered with the Federal Aviation Administration (“FAA”) during the same time period.

Because drones are considered aircraft under federal law, they are subject to FAA regulations. Most recently in 2016, the FAA promulgated expansive new regs that impose a number of restrictions on the operation and use of commercial drones, including, but not limited to, the following:

  • Prohibiting nighttime flying
  • Prohibiting flights faster than one hundred (100) miles per hour
  • Requiring drone operators to pass an aeronautical knowledge test (which involves proper drone operation and emergency procedures)
  • Requiring drone operators to obtain a remote pilot certification
  • Requiring all commercial drones to be registered with the FAA, and to pay a nominal fee
  • Restricting airspace around certain areas

Regarding airspace restrictions, drone pilots must be careful to avoid flying in certain protected zones, such as the five mile radius surrounding most airports or within three miles of spectator sporting events and major entertainment venues. The FAA has actually created an app that can be downloaded on a smartphone and is called “B4UFly.” This app helps pilots determine where they are allowed to fly their drones.

The FAA regulations address commercial usage and safety considerations, whereas state laws tend to focus on the personal privacy interests of citizens and residents. For instance, several states have criminalized the use of drones and drone technology for “voyeuristic” purposes. In Virginia, it is a criminal misdemeanor for an individual to use a drone to enter another person’s property or space and spy on that person. In the rural state of Utah, it is a misdemeanor for someone to use a drone to harass or actively disturb another person’s livestock.

As the legal framework becomes more complex, drone technology is continuing to advance. For several years now, we have heard about companies like Amazon utilizing drones for delivery of packages to consumers. Last year, “Project Wing,” the Google X lab drone project, test delivered Chipotle burritos via drones to students at Virginia Tech. Drones carried burritos from a taco truck, through the air, and to the hungry underclassmen waiting at a delivery kiosk hundreds of yards away.

In the commercial construction industry, management is well aware that drones are less expensive than manned aircraft and faster than human inspectors and surveyors. Contractors are using drones and drone technology with increasing regularity to deploy materials and collect data inexpensively, efficiently and safely.

Over the coming months, we will continue to track the laws and regulations affecting drone operators and users, as well as the drone industry’s technological advancements. Readers interested in using drones safely and effectively as part of their business should stay tuned, and, as always, feel free to contact us with questions or issues.


Third Circuit Determines That Employers Must Compensate Employees For Rest Breaks of 20 Minutes Or Less

In a recent decision, the Third Circuit concluded that the Fair Labor Standards Act (“FLSA”) requires employers to compensate employees for all rest breaks of twenty minutes or less. By way of background, employer American Future Systems, d/b/a Progressive Business Publications, utilized a policy that allowed its employees to log off their computers at any time assuming they were logged off of their computers for less than 90 seconds. However, employees were only paid for time they were logged on. Accordingly, Progressive employees could take as many breaks as they wanted (i.e., coffee and bathroom) during the course of a working day and be paid so long as the break was for less than 90 seconds. If the break was longer, they did not receive compensable time. In other words, Progressive stopped paying employees after they were logged off for more than 90 seconds.

After suit was filed against Progressive by the United States Department of Labor alleging violations of the FLSA, the lower court determined that rest periods of short duration (up to 20 minutes) were compensable time under the FLSA and should be counted as hours worked. On appeal, the employer argued that the time spent logged off does not constitute “work” under the FLSA. The Third Circuit, however, held that Progressive’s policy “forced employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee could sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than 90 seconds.” The Court continued, “If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than 90 seconds to get to the bathroom and back, the employee will not be paid.” That result, the Third Circuit held, is contrary to the FLSA. Accordingly, the Court ruled that an employer is obligated to pay its employees for breaks of 20 minutes or less under the FLSA.

 

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.

© Cohen Seglias Pallas Greenhall & Furman PC | Attorney Advertising

Written by:

Cohen Seglias Pallas Greenhall & Furman PC
Contact
more
less

Cohen Seglias Pallas Greenhall & Furman PC 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.