DAMITT Q3 2018: U.S. Antitrust Agencies Announce Merger Review Reforms in Response to DAMITT Findings Number and Duration of Significant Merger Investigations on the Decline in U.S. and EU

by Dechert LLP
Contact

Dechert LLP

Fast Facts

  • Both U.S. antitrust agencies, citing DAMITT, have announced new efforts to speed up the merger review process.
  • The number of significant merger investigations in both the U.S. and EU is down compared to CY 2017.
  • In the U.S., the two significant investigations concluding during Q3 2018 averaged only 6.9 months — the quickest pace for any quarter in over four years.
  • All three significant EU investigations involved Phase II cases and averaged 13.5 months, faster than the 15.1-month average in CY 2017.
  • Two U.S. merger litigations concluded during Q3 2018 and averaged only 105 days from complaint to decision — nearly half as long as litigations brought in 2017 — largely due to the unique posture of one of these cases.

Citing findings from the Dechert Antitrust Merger Investigation Timing Tracker (DAMITT) that have demonstrated a marked increase in the duration of significant merger investigations in recent years, DOJ Assistant Attorney General Makan Delrahim and FTC Chairman Joseph Simons recently announced reforms to the U.S. antitrust merger review process. Beyond these process reforms, which appear to be significant, there is little to report on Q3 2018 significant antitrust merger investigations in either the United States or European Union, but there were some intriguing developments in U.S. merger litigation.

Through the first three quarters of 2018, the number of significant investigations is down compared to 2017 in both the U.S. and EU, with Q3 2018 representing a particularly slow quarter. In the U.S., only two significant investigations concluded during the quarter, averaging only 6.9 months from announcement to clearance — the lowest average for any quarter in the past four years. In the EU, three significant investigations — all Phase II proceedings — concluded during the quarter. These three EU cases averaged 13.5 months from announcement to clearance, which is faster than the 15.1-month average for 2017.

Two U.S. FTC merger litigations filed in 2018 (Wilhelmsen/Drew Marine and Tronox/Cristal) were concluded during Q3 2018, both resulting in preliminary injunctions blocking proposed transactions. These two litigations were decided an average of 3.5 months after the filing of the district court complaint, a pace nearly half as long as the almost seven-month average observed for complaints filed during 2016 and 2017. However, the Tronox case presented a unique procedural posture that contributed to the faster pace and may not be representative of the duration of future litigations, which is likely to remain closer to the 5-7 month range observed in the Wilhelmsen litigation and in recent years.

Acknowledging DAMITT’s findings of a trend toward longer investigations, both the head of the DOJ Antitrust Division and the FTC Chairman announced antitrust merger review reforms intended to accelerate the process. As DOJ observed, faster investigations would reduce the waste of both public and private resources, provide greater certainty to the business community and markets, and reduce risks inherent in merger delays.

DOJ Assistant Attorney General Makan Delrahim announced several process changes with the “aim to resolve most investigations within six months of filing,” a metric slightly different from the deal announcement-to-agency action measurement period used for DAMITT and which would also presumably include certain investigations not tracked by DAMITT (e.g., second request investigations closed without a public statement by the agencies). To complete an investigation six months after filing, and assuming a 60-day period after substantial compliance for agency review, merging parties would be expected to certify substantial compliance within three months after receiving the second request at the conclusion of the initial 30-day waiting period for most transactions.

While officials from three prior administrations have made more general statements about streamlining the merger review process, Mr. Delrahim presented encouraging, concrete steps that could shorten investigations and reduce second request burdens. For example, he mentioned DOJ’s plans to revise the model timing agreement to limit the number of document custodians to 20 and the number of depositions to 12, and to limit the DOJ’s time following substantial compliance to a period of 60 or fewer days. These changes would be significant. While no systematic data are available, under current practice the custodian count can be in the high double digits, the deposition count can be closer to 30 than to 12, and the post-compliance period can be closer to 100 days than to 60 days. Mr. Delrahim has authorized his deputy assistant attorneys general to raise these limits as may be needed in a particular investigation, though it is unclear how these exceptions would be applied.

To further speed up reviews, DOJ plans to offer front-office meetings with the merging companies’ key executives earlier in the process to understand the deal rationale and key facts, require faster third-party compliance with civil investigative demands, and increase international coordination to potentially accelerate action by non-U.S. antitrust authorities.

As a condition of these benefits, Mr. Delrahim told Congress that he expects parties to produce documents and data earlier in the investigation and to agree to extend the time allowed for post-complaint discovery, if the DOJ challenges a merger in court. This latter stipulation potentially could keep the few mergers that result in litigation on the same lengthy path as today, but the deferral of more in-depth discovery until litigation begins could shorten investigations for the vast majority of deals that do not reach litigation.

FTC Chairman Joseph Simons similarly responded to DAMITT’s observations by announcing that the FTC’s goal is “definitely to reduce the time it’s taking” for merger reviews. Mr. Simons and Bruce Hoffman, Director of the FTC’s Bureau of Competition, also recognized that the FTC would benefit from shorter reviews in terms of saving more resources.

Importantly, both the DOJ and FTC announced plans to track more closely the length of merger reviews to better understand ways to make them more efficient, while also identifying potential sources of delays in order to improve the overall process. The agencies will not face the same limitations as DAMITT, which relies on publicly observable events. With access to internal data, the agencies have an opportunity to identify and implement changes that will benefit all parties to a merger investigation. For example, the agencies can systematically study filing dates, the terms of timing agreements and the frequency with which they are used, the number of second request custodians and depositions, the volume of second request documents and data, the frequency and success rate of pull-and-refile strategies, and the frequency of multi-agency and multi-jurisdictional reviews. These statistics will enable the agencies to more precisely identify common attributes driving longer (or shorter) investigations. Timely and detailed public reporting of these statistics would also increase accountability and transparency, providing valuable guidance to the business community and the antitrust bar.

In light of the significant attention U.S. enforcement agencies have devoted to the merger review process, their encouraging proposed reforms, and DAMITT’s analysis below suggesting that reform efforts may already be having some effect, we expect that the duration of significant U.S. antitrust merger investigations will continue to shorten. Whether DG Competition staff will come forward with similar ideas for shortening the overall duration of significant merger investigations remains to be seen. The different articulation of EU and U.S. procedures means that U.S. reforms cannot simply translate across the Atlantic. While the evidentiary requirements applied in judicial oversight of Commission decisions have become more stringent over time, it may well be that the pendulum was given a nudge to swing too far, and that a middle ground should be identified.

Citing DAMITT, DOJ and FTC Announce New Efforts to Speed Up Merger Reviews

Acknowledging DAMITT’s findings of a trend toward longer investigations, both the head of the DOJ Antitrust Division and the FTC Chairman announced antitrust merger review reforms intended to accelerate the process. As DOJ observed, faster investigations would reduce the waste of both public and private resources, provide greater certainty to the business community and markets, and reduce risks inherent in merger delays.

DOJ Assistant Attorney General Makan Delrahim announced several process changes with the “aim to resolve most investigations within six months of filing,” a metric slightly different from the deal announcement-to-agency action measurement period used for DAMITT and which would also presumably include certain investigations not tracked by DAMITT (e.g., second request investigations closed without a public statement by the agencies). To complete an investigation six months after filing, and assuming a 60-day period after substantial compliance for agency review, merging parties would be expected to certify substantial compliance within three months after receiving the second request at the conclusion of the initial 30-day waiting period for most transactions.

While officials from three prior administrations have made more general statements about streamlining the merger review process, Mr. Delrahim presented encouraging, concrete steps that could shorten investigations and reduce second request burdens. For example, he mentioned DOJ’s plans to revise the model timing agreement to limit the number of document custodians to 20 and the number of depositions to 12, and to limit the DOJ’s time following substantial compliance to a period of 60 or fewer days. These changes would be significant. While no systematic data are available, under current practice the custodian count can be in the high double digits, the deposition count can be closer to 30 than to 12, and the post-compliance period can be closer to 100 days than to 60 days. Mr. Delrahim has authorized his deputy assistant attorneys general to raise these limits as may be needed in a particular investigation, though it is unclear how these exceptions would be applied.

To further speed up reviews, DOJ plans to offer front-office meetings with the merging companies’ key executives earlier in the process to understand the deal rationale and key facts, require faster third-party compliance with civil investigative demands, and increase international coordination to potentially accelerate action by non-U.S. antitrust authorities.

As a condition of these benefits, Mr. Delrahim told Congress that he expects parties to produce documents and data earlier in the investigation and to agree to extend the time allowed for post-complaint discovery, if the DOJ challenges a merger in court. This latter stipulation potentially could keep the few mergers that result in litigation on the same lengthy path as today, but the deferral of more in-depth discovery until litigation begins could shorten investigations for the vast majority of deals that do not reach litigation.

FTC Chairman Joseph Simons similarly responded to DAMITT’s observations by announcing that the FTC’s goal is “definitely to reduce the time it’s taking” for merger reviews. Mr. Simons and Bruce Hoffman, Director of the FTC’s Bureau of Competition, also recognized that the FTC would benefit from shorter reviews in terms of saving more resources.

Importantly, both the DOJ and FTC announced plans to track more closely the length of merger reviews to better understand ways to make them more efficient, while also identifying potential sources of delays in order to improve the overall process. The agencies will not face the same limitations as DAMITT, which relies on publicly observable events. With access to internal data, the agencies have an opportunity to identify and implement changes that will benefit all parties to a merger investigation. For example, the agencies can systematically study filing dates, the terms of timing agreements and the frequency with which they are used, the number of second request custodians and depositions, the volume of second request documents and data, the frequency and success rate of pull-and-refile strategies, and the frequency of multi-agency and multi-jurisdictional reviews. These statistics will enable the agencies to more precisely identify common attributes driving longer (or shorter) investigations. Timely and detailed public reporting of these statistics would also increase accountability and transparency, providing valuable guidance to the business community and the antitrust bar.

In light of the significant attention U.S. enforcement agencies have devoted to the merger review process, their encouraging proposed reforms, and DAMITT’s analysis below suggesting that reform efforts may already be having some effect, we expect that the duration of significant U.S. antitrust merger investigations will continue to shorten. Whether DG Competition staff will come forward with similar ideas for shortening the overall duration of significant merger investigations remains to be seen. The different articulation of EU and U.S. procedures means that U.S. reforms cannot simply translate across the Atlantic. While the evidentiary requirements applied in judicial oversight of Commission decisions have become more stringent over time, it may well be that the pendulum was given a nudge to swing too far, and that a middle ground should be identified.

Number of Q3 2018 Significant Investigations Second Lowest in Past Five Years

The number of significant U.S. antitrust merger investigations has declined in 2018. There were 15 significant U.S. merger investigations concluded by the Department of Justice (DOJ) and Federal Trade Commission (FTC) through the first three quarters of 2018, slightly behind the 18 during the same period in 2017. Only two significant investigations concluded during Q3 2018 — the lowest for any quarter in more than five years and the second lowest quarterly total since DAMITT began tracking the data in 2011. This decline in 2018 is consistent with the steady trend observed by DAMITT since 2015, when the number of significant investigations reached its peak. The decrease does not necessarily reflect a decline in enforcement or aggressiveness by the agencies, but instead could be the result of fewer antitrust-sensitive deals due to a general decline in deal volume, or as a trailing consequence of higher enforcement activity in recent years, which can have a deterrent effect.

“Significant U.S. merger investigations” include investigations of proposed Hart-Scott-Rodino (HSR)-reportable transactions that result in a closing statement, consent order, complaint challenging a transaction, or transaction abandonment for which the antitrust agency issues a press release during the year in question.

For the second time this year — and only the second time in the last three years — the agencies issued a closing statement explaining the rationale for their decision. By comparison, zero closing statements were issued in 2016 and 2017. Closing statements provide guidance to the business community and suggest an effort by the current administration to increase transparency.

Significant U.S. Antitrust Merger Investigation Outcomes (2011 – Q3 2018)

Significant EU Merger Investigations Declining in Number and Shifting Toward a Higher Proportion of Phase II Proceedings

The number of significant EU merger investigations has declined in 2018. There were only three significant EU merger investigations resolved in Q3 2018, which is in line with the four investigations that were resolved in Q3 2017. The low number of investigations that were resolved in Q3 2018 may be partially attributable to the summer holidays. Companies are actively discouraged by the Commission from notifying transactions in the lead up to August because it is difficult to conduct any meaningful market testing. However, the 13 significant EU merger investigations concluded through Q3 2018 YTD is well behind the 18 concluded during the same period in 2017. This decline is consistent with the trend observed in the United States thus far in 2018.

Due to procedural differences between the EU and the United States, DAMITT defines “significant” EU merger investigations to include transactions subject to the EU Merger Regulation that are resolved either with Phase I remedies or after a Phase II investigation.

The distribution between Phase I transactions resulting in remedies and Phase II proceedings has shifted significantly from 2017 to 2018. During the first three quarters of 2018, Phase II proceedings were opened in the majority (62%) of significant investigations compared to only 24% in CY 2017.

Significant EU Antitrust Merger Investigation Outcomes (2011 – Q3 2018)

Average Duration of Significant U.S. Merger Investigations Returning to 2015-2016 Levels

The average and median duration of significant U.S. investigations has declined in 2018. The average duration of significant U.S. merger investigations was 9.8 months during 2018 YTD, a month faster than the 10.8-month average for 2017. This 9.8-month average matches the average observed in 2015-2016. The median investigation duration for 2018 YTD is 8.9 months, slightly below the 9.1-month median for 2017 and the 9.8-month median observed in 2015-2016.

The two significant investigations resolved during Q3 2018 averaged only 6.9 months — the fastest average time in any quarter since Q3 2014. While these two significant investigations are an encouraging step in the right direction, two cases do not make a trend. DAMITT will be watching as more data are collected in the upcoming months, particularly as further reforms are rolled out by U.S. antitrust agencies.

Average Duration of Significant U.S. Antitrust Merger Investigations (2011 – Q3 2018)

Average Duration of Significant EU Investigations Continues to Significantly Exceed Statutory Timetable

Through Q3 2018 YTD, the average duration of significant EU investigations involving Phase II proceedings has declined, while the average of those involving Phase I remedies has increased. Phase II EU proceedings that concluded through Q3 2018 YTD lasted an average of 13.4 months from announcement, nearly double the statutory time limit under the EU Merger Regulation. The five Phase I remedy cases that ended through Q3 2018 YTD lasted an average of 7.9 months, also in excess of the statutory time limit under the EU Merger Regulation. Both the Phase II and Phase I remedies figures continue to reflect the significant duration of pre-filing talks and the frequent use of timetable extensions in Phase II. Like the U.S. agencies, the European Commission may benefit from analyzing internal data to understand whether there are ways to bring the length of significant investigations closer toward the statutory time limits.

Phase II Proceedings

The average duration of Phase II proceedings through Q3 2018 YTD is down from CY 2017. Phase II proceedings concluding through Q3 2018 YTD lasted an average of 13.4 months, down from the 15.1-month average during the same period in 2017 as well as CY 2017. The three Phase II proceedings from the current quarter averaged 13.5 months. Overall, the average duration of Phase II investigations has increased by about four months compared to the 9.4-month average in CY 2011. These averages compare to a theoretical formal timetable of six to seven months counting from the moment of notification. DAMITT data thus far shows that the average EU case proceeding to Phase II is taking about 3-4 months longer than the average duration of significant U.S. merger investigations.

The time between announcement and notification of Phase II transactions that were concluded through Q3 2018 YTD was 5.8 months, about 2.5 months shorter than the 2017 average of 8.3 months, but still well above the 2011-16 average of 4.9 months. Merging parties invariably institute pre-filing talks with DG Competition staff very shortly after transaction announcement, if not before, and the growth of the period between announcement and notification is mostly explained by the intensity of staff demands for the inclusion of data and documentation in the filing, before the formal timetable is triggered.

The EU Merger Regulation allows merging companies to grant “voluntary” extensions of time. These extensions are commonly conceded by merging parties at the urging of staff and have occurred in 88% of Phase II investigations concluding in Q3 2018 YTD. Voluntary extensions typically consume the entire three weeks permitted under the EU Merger Regulation.

The Commission may also use its powers under the EU Merger Regulation to “stop the clock.” Stop-the-clock orders have increased in frequency, occurring in 63% of Phase II investigations concluding in Q3 2018 YTD, compared to only about 30% from 2011-2017. Stop-the-clock orders most typically extend investigations by nearly a month.

Overall, the average duration of cases going to Phase II has greatly exceeded the timetable envisioned under the EU Merger Regulation.

Average Period from Announcement to End of EU Phase II Cases (2011 – Q3 2018)

Phase I Cases

As there were no new Phase I remedies cases concluding during Q3 2018, the five significant 2018 EU investigations resolved in Phase I with remedies remained at an average of 7.9 months. When measured from deal announcement, Phase I cases with remedies are now requiring roughly four times the statutory EU timetable of about seven weeks.

The time between announcement and notification for these Phase I remedy cases also remained at 6.1 months, which was slower than both the 5.2-month average in CY 2017 and the 4.9-month average in CY 2016. During the pre-filing period, companies typically engage in extensive discussions with DG Competition staff over the scope and detail of the parties’ filing, which adds time to the formal schedule.

Average Period from Announcement to End of EU Phase I Remedy Cases (2011 – Q3 2018)

New 2018 U.S. Merger Trials Completed Faster than
Prior Years

U.S. merger litigation brought in 2018 has been completed more quickly than in prior years. The FTC’s recent preliminary injunction litigations blocking both the Tronox/Cristal and Wilhelmsen/Drew Marine transactions provide new data points for merger cases filed in 2018. These litigations averaged only 104 days from the filing of the complaint to the judge’s decision, significantly faster than the 207-day average for CY 2016 and the 203-day average for CY 2017.

The shorter duration was primarily driven by the Tronox case, which had a unique procedural posture, and may not be representative of future litigations. Typically, the FTC files complaints in administrative and district court proceedings nearly simultaneously. In Tronox’s case, however, the FTC filed an administrative complaint in December 2017 and a district court complaint in July 2018 — more than seven months later. The FTC and Tronox were able to engage in discovery during this seven-month period and even completed the administrative trial, obviating the need for extensive discovery in the federal court proceeding. Consequently, Tronox’s district court hearing began only 28 days after the district court complaint was filed, more than three months sooner than complaints filed in 2016 and 2017. Overall, Tronox was decided only 58 days after the filing of the district court complaint. By comparison, the FTC’s case against Wilhelmsen was decided 149 days after the complaint, which was closer to, but still faster than, the average in the prior two years. Wilhelmsen and the 5-7 month average observed in recent years should be viewed as more representative of the current duration of merger litigation.

Time to Litigate Government Antitrust Merger Challenges in Federal Court
(Complaints Filed in 2011, 2015, 2016, 2017 and 2018 and Litigated to a Decision)

Conclusion

Data for Q3 2018 YTD in both the United States and the European Union continue to indicate that the number and duration of significant antitrust merger investigations may have peaked. While the circumstances of future antitrust-sensitive transactions may lead to results above or below DAMITT averages, the latest statistics suggest that parties to the hypothetical average “significant” deal subject to review only in the United States would have to plan on approximately 10-11 months for the agencies to investigate a transaction, and another five to seven months if they want to preserve their right to litigate an adverse agency decision. Deal timetables for cases likely to go to a European Phase II need to account for an average lapse of almost 14 months from announcement to clearance.

In light of the significant attention that U.S. enforcement agencies have devoted to the merger review process, their encouraging proposed reforms, and indications that reform efforts to date have already had some effect, we expect the duration of significant U.S. antitrust merger investigations will continue to shorten. Prospects for similar effects in the EU remain unclear.

Written by:

Dechert LLP
Contact
more
less

Dechert 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.