“Covered Investment Fund” Research Begins January 14, 2019

by K&L Gates LLP

K&L Gates LLP

The Securities and Exchange Commission (“SEC”) has traditionally recognized the value of market and issuer research to the investment decision-making process. The federal securities laws regulate issuer and market communications under general antifraud and specific rules. Congress adopted the Fair Access to Investment Research Act (“FAIR Act”) in 2017 to place research about “covered investment funds” on equal regulatory footing with the publication and distribution of research historically permitted for public operating companies. Congress directed the SEC in the FAIR Act to adopt implementing rules, and the SEC adopted Rule 139b under the Securities Act of 1933 (“1933 Act”) for this purpose. This rule became effective on January 14, 2019.

Rule 139b covers two types of research reports—issuer-specific reports and industry reports. This Alert: (i) describes the scope of the new SEC rule for covered investment fund “research reports”; (ii) summarizes the current regulatory landscape that would be expected to apply in coordination with the rule; and (iii) discusses the conditions for issuer-specific and industry research reports to rely on the rule.


Who Is Impacted By Rule 139b?


Rule 139b applies to certain broker-dealers that seek to publish and distribute research reports about covered investment funds for which they may be, or may be deemed to be, participating in an offering. Broker-dealers relying on this non-exclusive safe harbor may permissibly publish and distribute eligible research reports without the report being deemed to be an impermissible offer to sell, or an offer for sale, of a security in violation of Section 5 of the 1933 Act. [1]

Rule 139b, however, does not extend to a research report published and distributed by a covered investment fund itself, directly or indirectly, by an “affiliate” of the fund, or by a broker-dealer that is an adviser to the fund or that is an “affiliated person” of an adviser to the fund. [2] The FAIR Act itself included this limitation on the scope of the Rule 139b safe harbor, and the SEC incorporated it in its implementing regulations to prevent issuers from circumventing Section 5 (e.g., by issuing research reports in lieu of prospectuses) and to mitigate the potential for a broker-dealer’s conflict of interest with respect to a covered investment fund resulting in a biased research report. These affiliate and affiliated person restrictions are technical and would require careful consideration to ensure compliance.

Under Rule 139b, to determine “affiliates” of an investment fund, a broker-dealer must look to, among other things, the definition of “affiliate” in Rule 405 under the 1933 Act, which makes any person that directly or indirectly controls a fund, is controlled by a fund, or is under the common control of a fund an affiliate. Control for these purposes, and as defined by Rule 405, means the direct or indirect power to direct or cause the direction of the management and policies of a fund whether through the ownership of voting securities, by contract, or otherwise. Thus, for example, an “affiliate” of an investment fund would almost surely include its adviser and could include a broker-dealer that provided it with seed funding, even if the broker-dealer was not otherwise affiliated with the fund’s sponsor or adviser.

The safe harbor also is not available to a broker-dealer that is an “affiliated person,” as defined in Section 2(a)(3) of the Investment Company Act of 1940 (“1940 Act”), of any adviser to the covered investment fund. Section 2(a)(3) provides an extremely technical and broad definition of “affiliated person.” Among other things, the definition includes any investment adviser to an investment company (i.e., investment fund), including a third-party sub-adviser. The affiliation of a third-party sub-adviser raises the question whether an affiliated broker-dealer of the sub-adviser would be captured in the affiliation restrictions, and the SEC did clarify the potential effects the affiliation restrictions may have on broker-dealers affiliated with third-party sub-advisers. Additionally, a broker-dealer that owns as little as five percent of the voting equity of an investment fund’s adviser or third-party sub-adviser would be an “affiliated person” of each, as the case may be, and, therefore, also unable to rely on the Rule 139b safe harbor.

Participation by an investment fund or its adviser in the review of a research report also could disqualify reliance on the safe harbor on the theory that, if either played such a prominent role in reviewing or approving the research, the fund or adviser could be deemed to have indirectly published and distributed the research report. Alternatively, a reading of the SEC’s analysis in the adopting release to Rule 139b suggests that a fund’s or an affiliate’s participation in the review and approval of material for a report could “entangle” the fund or affiliate in the production of the report or otherwise cause them to “adopt” the report outside of the protection of the safe harbor. By invoking the doctrines of entanglement and adoption from other areas of the federal securities laws, the rule divorces the fund and its adviser from the research report publication and distribution process, which runs counter to the traditional process by which funds and their advisers develop, produce, and distribute fund marketing materials. Thus, the effect of the SEC’s guidance presumably is to mitigate the potential for covered research reports becoming primarily another type of fund marketing or advertising.

Covered Investment Funds

Although a “covered investment fund” may not permissibly publish and distribute a research report about its securities or its industry sector in reliance on the safe harbor, or otherwise participate in the publication of such a report, it is obviously impacted by Rule 139b because it can be the subject of a Rule 139b report, individually or collectively as part of an industry. The safe harbor defines a “covered investment fund” to include: (i) an investment company (or series or class thereof) that has filed a registration statement under the 1933 Act, which the SEC has declared effective; (ii) a business development company (“BDC”) that that has filed a registration statement under the 1933 Act, which the SEC has declared effective; and (iii) a trust or other person (1) that is issuing securities in a registered offering that are listed for trading on a national securities exchange; (2) whose assets consist primarily of commodities, currencies, or derivatives that reference commodities or currencies; and (3) whose registration statement discloses that its securities are purchased or redeemed for a ratable share of its assets.

Stated less technically, an eligible research report may cover mutual funds, closed-end funds, exchange-traded funds (“ETFs”), currency and commodity exchange-traded products (“ETPs”), and BDCs. A “covered investment fund,” however, would exclude investment companies that are solely registered pursuant to the 1940 Act (and not the 1933 Act), such as certain master funds in a master-feeder structure. Nevertheless, according to SEC estimates, more than 11,000 issuers, representing over $20 trillion in market value, theoretically could become the subject of research reports under the Rule 139b regulatory regime, although the market-value conditions of the rule discussed below may reduce the potential universe of investment funds that may be practicably covered.

What Is a “Research Report?”

The federal securities laws currently include various definitions of the term “research report.” Rule 139b defines a “research report” to mean a written communication (a writing, printing, graphic communication, or radio or television broadcast) that includes information, opinions, or recommendations with respect to securities of an issuer or an analysis of a security of an issuer, regardless if the communication provides sufficient information on which to base an investment decision. The Rule 139b definition parallels similar definitions in Rules 137, 138, and 139 under the 1933 Act. These 1933 Act rules form the historical basis for the permissible publication and distribution of research reports on operating companies. Rule 139b is modeled after Rule 139, with adjustments in recognition of differences between investment funds and operating companies.

The definition prescribed by Rule 139b, however, differs from that prescribed elsewhere. For example, this definition in Rule 139b contrasts with the definition in Regulation Analyst Certification (“Regulation AC”) under the Securities Exchange Act of 1934 (“1934 Act”) and with the definition prescribed by the debt and equity research rules of the Financial Industry Regulatory Authority (“FINRA”). Regulation AC defines a “research report” to mean a written communication (including electronic communications) that includes an analysis of a security or an issuer, which conveys information reasonably sufficient for an investor to base an investment decision. Similarly, FINRA Rules 2241 (equity research rule) and 2242 (debt research rule) define a “research report” as a report that includes, among other things, information sufficient to form the basis of an investment decision. Rule 139b expressly omits this “reasonable basis” condition, thus arguably covering a broader universe of securities and market analysis than Regulation AC and the FINRA research rules may cover. The SEC, however, stated its expectation that most covered investment fund research reports would be expected to trigger compliance with FINRA’s research rules, and Regulation AC, presumably because the report would be expected to form the basis for an investment decision. In light of the SEC’s position, consideration of conflicts disclosure prescribed by Regulation AC and FINRA research rules may need to be incorporated in research reports in reliance on Rule 139b, as discussed below. 


Regulation AC

Regulation AC was adopted in 2003 and regulates primarily the publication and distribution of research by certain market participants—namely, investment banks and their research analysts, which may have investment-banking and sales and trading business relationships with issuers they cover in the research process. At its core, Regulation AC is intended to manage conflicts of interest in the research process by requiring prominent certifications in research reports subject to Regulation AC regarding the independence of the analyst’s views contained in the report. More specifically, Regulation AC requires express certification that no part of the compensation of the analyst primarily responsible for preparing the report was, is, or will be, directly or indirectly, related to the specific recommendation or views contained in the research report; or, if part or all of the analyst’s compensation was, is, or will be, directly or indirectly, related to the specific recommendation or views contained in the research report, the certification must disclose the source and amount of the analyst’s compensation, the purpose of compensation, and the conflicts of interest that the compensation may raise—namely that such a compensation structure may influence the recommendation in the research report.

Regulation AC principally governs the debt and equity research functions of broker-dealers and their research analysts. It may be read to extend, however, to affiliates of a broker-dealer that provide debt and equity research, particularly to the extent that the affiliate and broker-dealer have overlapping officers or research employees. To the extent that an authoring broker-dealer does not trigger the affiliation restrictions, Rule 139b does not expressly prohibit a broker-dealer, and presumably its research analysts by extension, from publishing and distributing eligible research reports simply because the broker-dealer receives revenue-sharing and similar distribution payments, or the analyst receives bonuses or compensation that may be tied to his or her research activities. Regulation AC may require that the report’s content be supplemented to include appropriate conflicts disclosure.

If, however, an authoring broker-dealer reasonably concludes that a research report could not form a reasonable basis to make an investment decision, notwithstanding the SEC’s position otherwise, Regulation AC would not be specifically triggered, although considerations under general antifraud and/or FINRA rules may require conflicts disclosure in any event, particularly disclosures relevant to compensation paid to an authoring broker-dealer or its research analyst. Thus, an authoring broker-dealer would need to consider and evaluate potential conflicts raised by compensation structures to determine the extent to which conflicts may need to be disclosed, either as expressly prescribed by Regulation AC, or disclosed more generally to comply with principles of antifraud disclosure or relevant FINRA rules, as discussed below.


FINRA also has adopted comprehensive regulations governing the equity and debt research process that, like Regulation AC, are intended to manage potential conflicts of interest raised by a full-service broker-dealer’s research, trading, and investment-banking activities. FINRA’s research rules are technical and require complex structural compliance to ensure the independence of the research process. Thus, an evaluation of these research rules would be a necessary predicate to engaging in the investment fund research process to ensure conflicts are vetted and disclosed, as well as that the process ensures the independence of the research to the extent required.

Even if a Rule 139b research report may be viewed as not providing a reasonable basis on which to make an investment decision, which would trigger application of FINRA’s research rules, other FINRA rules would nonetheless apply to the report. For example, covered investment fund research reports would be subject to FINRA’s advertising rules (FINRA Rule 2210), which require fair and balanced communications to the public and that public communications be based on fair dealing and good faith. The general content standards incorporate FINRA’s basic business conduct rule of just and equitable principles of trade and high standards of commercial honor (FINRA Rule 2010). Arguably, these general principles of fair dealing would call for conflicts disclosure, even in the absence of specific conflicts disclosure prescribed by Rule 139b or other regulations, such as FINRA’s research rules or Regulation AC. Further, of course, the general antifraud provisions throughout the federal securities laws would require disclosure of all material information and prohibit the omission of material information in covered investment fund research reports.

Investment Company Communications

The permissible publication and distribution of fund information has long pre-dated the FAIR Act and the adoption of Rule 139b. Investment company communications are regulated under general antifraud, and specific regulations pursuant to the 1933 Act, the 1940 Act, the Investment Advisers Act of 1940 (“Advisers Act”), and FINRA advertising rules to the extent fund shares are distributed by a FINRA member firm. For instance, Section 34(b) of the 1940 Act, [3] Section 206 of the Advisers Act, and Rule 206(4)-1 under the Advisers Act generally apply to all forms of communications distributed by an investment company or its adviser, including fund advertisements and sales literature. These requirements generally require that fund materials not mislead or omit material facts. A fund distributor seeking to publish and distribute investment company research would need to keep these investment company-specific principles in mind, but further must not impermissibly entangle the fund or its adviser(s) in the research process, such that the affiliation restrictions of Rule 139b are violated and as a consequence the fund and/or adviser(s) are viewed as indirectly publishing and distributing the research outside of protection from potential Section 5 violations.

Rule 482 under Regulation C of the 1933 Act also figures prominently in the existing regulatory regime for investment company communications. Section 5(b)(1) of the 1933 Act prohibits the delivery of any prospectus in connection with any security for which a registration statement has been filed unless the prospectus complies with Section 10 of the 1933 Act. Advertising that satisfies Rule 482 under the 1933 Act is deemed to be an “omitting prospectus,” the effect of which means that an investment company may distribute a Rule 482 advertisement after the registration statement has been filed, but before it has been declared effective. For an open-end fund seeking to publish performance information, Rule 482 prescribes the precise method by which performance must be uniformly presented. Rule 139b incorporates the requirements of Rule 482’s standardized performance to the extent an open-end investment company research report includes performance information. [4] Similarly, a research report containing performance for a closed-end fund would need to comply with Form N-2, the registration form for a closed-end fund that prescribes the permissible method of presenting performance information.


Rule 139b applies to issuer-specific and industry research reports and prescribes conditions for both. For purposes of Rule 139b, an issuer-specific research report constitutes a report about one specific unaffiliated covered investment fund. An industry report, by contrast, would be a report regarding multiple covered investment funds of the same type or same investment focus, which are covered uniformly, giving no fund(s) greater prominence over others. Alternatively, an industry report could be a comprehensive list of investment funds currently recommended by the publishing broker-dealer (excluding any that triggered the safe harbor’s affiliation restrictions), so long as the report gives no greater prominence to one fund or funds over others included in the report.

The Safe Harbor Applies to Seasoned Issuers

Similar to the 1933 Act’s safe harbor for operating companies (Rule 139), Rule 139b prescribes for issuer-specific and industry reports conditions restricting research to seasoned issuers based on the fund’s reporting pursuant to the 1940 Act or, if not 1940 Act registered, the public reporting provisions of the 1934 Act (Section 13 or Section 15(d)). For issuer-specific research reports, the safe harbor adds a 12-month minimum reporting period (and timely filing condition), either under the reporting provisions of the 1940 Act or the public company reporting provisions of the 1934 Act, and specific market value measures, similar in concept to the public-float requirements for operating companies in Rule 139, to ensure a significant market following for the particular fund. Rule 139b, therefore, currently sets the market value or net asset value, depending on the construct of the fund, at $75 million. [5] The market value condition is subject to a quarterly “re up” to ensure eligibility of continued coverage. These conditions effectively make new funds and/or small funds ineligible for coverage in reliance on Rule 139b and place a heavy duty on an authoring broker-dealer to ensure a fund’s eligibility for coverage.

The Safe Harbor Applies Solely to Broker-Dealers That Publish and Distribute Research in the Regular Course of Business and at Specified Times during the Coverage Process

The safe harbor requires a broker-dealer authoring an issuer-specific or industry research report to publish and distribute the report in its “regular course of business.” This condition applies to issuer-specific and industry reports, but does not explicitly require that the authoring broker-dealer have established a traditional research department. The SEC stated expressly that a broker-dealer that published “research reports” pursuant to Rule 482 or that has otherwise previously published research in reliance on Rule 139 would satisfy the “regular course of business” condition to the extent research was prepared in reliance on Rule 139b. Further, according to the SEC, the “regular course of business” requirement also could be satisfied if a broker-dealer, at the time of reliance on the safe harbor, had published at least one previous report or one report following a discontinuance of coverage.

In addition to imposing the “course of business” requirement on broker-dealers publishing research reports, broker-dealers generally may not avail themselves of the safe harbor with respect to issuer-specific research reports that represent the initiation of coverage or re-initiation of coverage following discontinuance. An exception to this limitation is available for any report pertaining to a covered investment fund that has a class of securities in substantially continuous distribution. This exception should allow for reports that rely on Rule 139b to cover open-end funds, such as mutual funds and ETFs, and other types of funds that conduct offerings that functionally engage in a continuous offering, such as potentially to interval or tender-offer closed-end investment companies or certain ETPs. [6]

Conforming Rules and Amendments

Rule 24b-4 under the 1940 Act

The SEC also adopted Rule 24b-4 under the 1940 Act to clarify that an authoring broker-dealer’s “research report” in reliance on Rule 139b will not be subject to the filing requirements prescribed by Section 24(b) of the 1940 Act to the extent that the report is subject to content standards of FINRA Rule 2210, noted above.

Regulation M under the 1934 Act

The SEC also adopted conforming amendments to Rule 101 of Regulation M to recognize an exception for research reports published and distributed by a “distribution participant” in reliance on Rule 139b from the prohibitions of Rule 101 during the distribution period of an issuer’s securities.


[1] The safe harbor protects a research report from being an offer for sale or an offer to sell a security for purposes of Section 5(c) of the 1933 Act, but requires that the covered investment fund in the first instance have an effective registration statement. Inasmuch as Section 5(c) of the 1933 Act applies to the period of an offering that precedes the filing of a registration statement, however, it is not altogether clear how the Section 5(c) protection is intended for research reports authored in reliance on Rule 139b. Purportedly, Rule 139b also protects the delivery of eligible research from being deemed a non-conforming prospectus for purposes of Section 10 of the 1933 Act, inasmuch as the SEC expressly stated in regard to an analogous rule (Rule 139) that a broker-dealer’s publication and distribution of eligible research reports would not be a non-conforming prospectus in violation of Section 5 of the 1933 Act.

[2] The affiliation restrictions do not necessarily prohibit a third-party distributor of a fund’s shares (or one who may become a distributor) from publishing and distributing a research report about the fund, although other provisions of the securities laws may require disclosure of potential conflicts relevant to a third-party distributor’s research, as discussed below.

[3] Rule 34b-1 under the 1940 Act applies to supplemental sales literature for investment companies and, like Rule 482 discussed below, prescribes standardized performance requirements.

[4] A report could include non-standardized performance, but only if standardized performance, as required by Rule 482, were also included and deviations between the two explained.

[5] With few potential exceptions, only traditional mutual funds are permitted to base this calculation on net asset value.

[6] Although many ETPs operate in a manner that is substantially the same as ETFs, because they are not registered investment companies, SEC rules preclude them from registering an unlimited number of shares (like ETFs do). As a result, when registering, ETPs must specify (and pay for) a specific number of shares to be registered; and, when they run out of shares, they must register (and pay for) additional shares. Certain large ETPs qualify to register additional shares pursuant to filings that go automatically effective. Smaller ETPs, however, do not. Accordingly, from time to time, these ETPs have been required to suspend sales of their shares. See, e.g., John Spence, Fueling a Losing Bet, Market Watch (Jan. 4, 2010) (“Over the summer the [United States Natural Gas Fund L.P.] temporarily halted the creation of new shares as it waited for regulatory approval to issue new shares after it ran out. “), https://www.marketwatch.com/story/natural-gas-etf-burned-investors-in-2009-2010-01-04. Under Rule 139b, if such an ETP is the subject of an issuer-specific research report, its suspension of share sales may jeopardize the ability of the report’s publishing broker-dealer to rely on the rule as it may call into question whether the ETP (i.e., the covered investment fund) fits within the allowance for funds engaged in a continuous offering.


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.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates 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.