Delaware Court Of Chancery Finds Director Breaches of Fiduciary Duty and Aiding and Abetting Liability for Activist Investor in Shareholder Class Action Suit

by Cadwalader, Wickersham & Taft LLP
Contact

Cadwalader, Wickersham & Taft LLP

On October 16, 2018, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued a post-trial opinion in In re PLX Technology Inc. Stockholder Litigation, a dispute arising from the August 2014 merger between PLX Technology (“PLX” or the “Company”) and Avago Wireless (U.S.A.) Manufacturing Inc. (“Avago”), now known as Broadcom Inc.  The Court held that PLX’s directors had breached their fiduciary and disclosure duties in connection with the merger, and that Potomac Capital Partners II, L.P. (“Potomac”), an activist hedge fund that pushed for the sale of PLX to Avago, had knowingly participated in that breach.  The Court based its conclusions primarily upon the conduct of the PLX directors, Potomac and its principal, Eric Singer, during both Potomac’s proxy contest and Singer’s subsequent tenure on the PLX Board as the chair of the special committee overseeing the sales process.  Critically, the Court reasoned that Singer, whose conduct was imputed to stockholder Potomac, was a dual fiduciary to PLX’s stockholders and Potomac’s investors, and, as such, had incurable conflicts of interest arising from Potomac’s position that the only viable course of action for the Company was a short-term sale.

This decision is significant because the Court made a theme of director susceptibility or acquiescence to what it termed “activist pressure” the basis for its conclusions that fiduciary and disclosure duties had been breached.  Further, the decision appears to be the first occasion that a Delaware court has determined that a conflict of interest attendant to a breach of fiduciary duty could be present based solely on the Court’s perception that a shareholder director had a short term investment outlook absent any additional factors, such as extra or undisclosed compensation or other improper benefits.

Background

The Failed IDT Transaction

The relevant events began seven years ago, when PLX first began merger discussions with Integrated Device Technology, Inc. (“IDT”).  In April 2012, PLX and IDT signed a merger agreement with a price of $7.00 per share.  PLX’s financial advisor, Deutsche Bank, then solicited competitive bids.  That process resulted in only one proposal, from Avago:  an all-cash deal for $5.75 per share.  The PLX Board declined to pursue Avago’s offer, and disclosed the competing proposal to shareholders.[1]  PLX and IDT eventually abandoned the transaction after the Federal Trade Commission moved to block the merger on antitrust grounds.

Potomac Acquires a Large Stake in PLX

PLX’s stock price plummeted after the merger with IDT failed, which attracted the attention of Potomac.  After building and disclosing its position in PLX, Potomac’s publicly-stated investment thesis for the Company, as consistently set forth in a letter-writing campaign to the PLX Board and shareholders, was that the Company should be sold promptly, and that its most likely buyer would be the unnamed competing bidder who emerged during the IDT sales process (i.e., Avago).  Singer also personally relayed his position to PLX’s CEO and other executives via voicemail, email, telephone calls, and further correspondence.  In response, PLX’s directors and executives stated that they no longer believed a sale was in the best interests of the Company.

Potomac Launches a Successful Proxy Contest and Singer Shepherds PLX’s Sale to Avago

In November 2013, Potomac filed a definitive proxy statement that sought to replace three of the eight PLX directors with Singer and two independent candidates.  Once again, Potomac disclosed its view that PLX was ripe for a sale, and it urged the other PLX shareholders to support its candidates on that basis.  Institutional Shareholder Services (“ISS”) endorsed Potomac’s slate, and PLX’s stockholders subsequently approved Potomac’s nominees, who joined the PLX Board on December 18, 2013.

The next day, an Avago executive contacted Deutsche Bank regarding Potomac’s presence on the PLX Board.  At the time, Deutsche Bank was acting as a financial advisor to both Avago and PLX.  The Avago executive told Deutsche Bank that Avago was in a quiet period in connection with a separate transaction, but would be interested in acquiring PLX for about $300 million.  Deutsche Bank relayed these points to Singer later that same day, but Singer did not share this information with the other PLX directors.

Singer subsequently was named by the PLX Board as chair of the special committee overseeing the sales process.  After the conclusion of the quiet period, Avago and PLX began negotiations in May 2014, and announced the Avago-PLX transaction in June 2014.  No competing bidder emerged and, after a vote of the stockholders and the Board, the merger closed on August 12, 2014.

The Litigation

After the announcement of the Avago-PLX merger, plaintiff stockholders alleged the PLX directors had breached their fiduciary duties by approving the merger and breached their disclosure duties in recommending the stockholders approve the merger.  Plaintiffs also asserted claims against Avago, Potomac, and Deutsche Bank, which ultimately served as PLX’s financial advisor for the sale, for aiding and abetting the directors’ breaches of fiduciary duty.  The Court subsequently granted motions to dismiss submitted by Avago and two directors.  After the close of discovery, all remaining defendants except Potomac reached settlements with plaintiffs.  The Court then denied Potomac’s motion for summary judgment and the parties proceeded to trial.

The Opinion

The Court found that the PLX directors had breached their fiduciary duties by, in essence, being “susceptible to activist pressure.”[2]  The Court specifically contrasted the directors’ defensive representations during the proxy contest with their post-contest agreement to a sale and a sales process conducted by Singer.[3]  The Court also negatively cited the PLX directors’ inability to put forth a credible explanation for a series of adjustments to the projections PLX used to justify the deal price,[4] and their choice to use an investment advisor with a “longstanding and thick” relationship to Avago, the buyer.[5]  In particular, the Court criticized Singer for concealing from the other directors material information about the sales process that he learned through the investment advisor.[6]  The Court deemed PLX’s disclosures inadequate on essentially the same grounds, citing Singer’s concealment from the stockholders of the early communication of material information and the misleading disclosures regarding the projection adjustments.[7]

The Court then considered whether a stockholder could be held liable for the actions of its agent on a board of directors, and concluded that Singer’s relationship with Potomac and “his role in directing and implementing Potomac’s strategy” permitted the attribution of his knowledge and actions to Potomac.[8]  Delaware law presumes that investors act in their own self-interest, and typically, an investor’s control of a large block of shares is presumed to mitigate divergent interest concerns.  Here, however, the Court reached the opposite conclusion,[9] and reasoned that Singer, as a dual fiduciary to both PLX’s stockholders and Potomac’s investors, had incurable conflicts of interest, arising solely from Potomac’s position that the only viable course of action for the Company was a short-term sale.[10]

After determining liability, the Court considered damages, and concluded that plaintiffs were unable to prove that the sale price was inadequate or that the value of PLX as a standalone company was greater than the deal price.[11]

Analysis and Key Takeaways

Both activists intending to advocate for the sale of a target and boards facing or defending an activist campaign should take note of the outcome of this case, in which the Court explicitly concluded that fiduciary and disclosure duties had been breached as a result of directors applying or succumbing to what the Court deemed “activist pressure.”[12]

As a general matter, Delaware law does not require incumbent directors to rigidly adhere to their defensive positions after a proxy contest ends.[13]  Such a requirement would impermissibly hamper a director in carrying out her fiduciary duties, by preventing her from considering new advice or information.  In this case, the Court made the contrast between the pre- and post- proxy contest conduct of Potomac and the PLX directors the crux of its liability determinations.  Specifically, the Court scrutinized the public statements and positions of Potomac and the PLX Board during the proxy contest, particularly Potomac’s focus on the sale of the Company and repeated threats to sue the directors who questioned its plans,[14] and the PLX directors’ responsive representation that it was not the right time to sell.[15]  The Court then compared these stances with the post-contest conduct of the PLX Board, now including Potomac’s designees, which promptly installed Singer as the chair of the special committee and executed Potomac’s investment thesis—a sale of Avago—as quickly as possible after the expiration of Avago’s quiet period.  The Court also was extremely critical of Singer’s failure to disclose Avago’s indication of continued interest that he learned through its financial advisor, and cited the presence of inconsistent projections,[16] poor and post hoc record keeping,[17] and the engagement of a financial advisor with a longstanding relationship with the buyer[18] as further factors in its conclusion that fiduciary and disclosure duties had been breached as a result of “activist pressure.”

The decision also is notable because it appears to represent the first time that a Delaware court has found a prevailing conflict of interest solely on the Court’s perception that a hedge fund investor held a short-term investment thesis.  This is an unusual result because no additional or aggravating factors were present, such as an extra or gratuitous compensation sought by or given to Potomac,[19] and Potomac received the same price per share as every other PLX stockholder as a result of the merger.[20]  Moreover, Potomac’s investment thesis—a quick sale to provide profits to PLX’s stockholders, including Potomac—was openly disclosed as the sole plank of the platform on which Potomac conducted its proxy contest, which in turn was endorsed by ISS and supported by a majority of PLX stockholder votes.[21]

Importantly, the Court made clear that it was not announcing a completely new standard governing the attribution of the actions of a stockholder director-designee to the stockholder itself, and that the preponderance of the evidence standard was still firmly in place.[22]  The Court’s determination that Singer was not a credible witness at trial, particularly with respect to his claim that he considered the pursuit of value enhancement options other than a sale of PLX and his denials of contentious interactions with other directors, as well as the indicia of a poorly managed sales process, also may work to limit the impact of this decision to the facts of the case.  Nonetheless, the decision has the potential to open the door to a new wave of shareholder litigation following sales or change of control transactions initiated by activist investors who obtain board representation, alleging that “activist pressure,” evidenced by a strong investment thesis in favor of a sale, overcame fiduciary and disclosure duties and infected the sales process.

At a minimum, activist investors who succeed in electing designees should be cautioned that Courts prefer to see boards function collegially and professionally, and will take a dim view of incidents of threats or incivility both before and after designees join the board. [23]  Additionally, should a board determine that a sale of the company is in the best interests of the shareholders, directors must recognize and articulate, early and often, that their fiduciary obligation is to all shareholders, and the activist designee should not be permitted to dominate either the consideration of the issue by the board or, once the decision to sell is made, the process itself.  Finally, the sale of a company is a unique process that requires directors to conform their behavior to high standards of conduct.  It was clear that the Court regarded Singer’s failure to share information with the board as both a very serious mistake and a stain on his trustworthiness, which is the essential quality that a Delaware director must have.

1   PLX Schedule 14D-9, at 1 (June 1, 2012).

2   Post-Trial Op. at 111. 

3   See id. at 110-115.

4   See id. at 93-94.

5   See id. at 106.

6   See id. at 119.

7   See id. at 115-16.

8   Post-Trial Op., at 103, 120, and 121.  

9   Notably, the Court already had signaled to defendants during early motion practice that, by simultaneously holding a seat on the PLX Board and controlling PLX’s largest stockholder, it believed Singer likely faced the dual fiduciary problem identified Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) (holding no dilution of duty of loyalty where director holds a dual fiduciary obligation).  See In re PLX Tech. Stockholders Litig., C.A. No. 9880-VCL, 2015 WL 13501398, at 7 (Del. Ch. Sept. 3, 2015).

10 The Court identified several instances that, in its view, definitively indicated Singer’s, and transitively Potomac’s, divergent interest as a result of this singular focus:  “Singer and Potomac argued vehemently that PLX should be sold quickly”; “Singer’s thesis for investing in PLX depended entirely on a short-term sale to [Avago]”; “[Singer] never prepared any valuation [of PLX]”; and “[Singer] lacked any idea for generating value [other than selling PLX].”  Post-Trial Op. at 103-104. The Court also wrote that after Singer joined the PLX Board he “consistently acted with [the] intent [to sell PLX to Avago],” emphasizing that Singer said the PLX Board was “crazy for turning down $6+ from avago few months ago.”  Id. at 105.  Finally, the Court concluded that Singer “only backed off when he learned that Avago could not re-engage for several months” and “got to a deal within days” when Avago re-engaged.  Id.

11 See id. at 134-35.

12 See id. at 111.

13 Air Prods. & Chem., Inc. v. Airgas, Inc., 16 A.3d 48, 128 (Feb. 15, 2011) (finding no breach where independent slate of directors “changed teams” to agree with incumbents after proxy contest).

14 See Post-Trial Op. at 22-23 (Singer threatening to hold directors personally liable).  One director testified at his deposition that Singer “threatened lawsuits all the time . . . [t]hat was his mode of operation at that point.” Id. at 14, n. 60. 

15 See id. at 23.

16 See id. at 114-15.

17 See id. at 47.

18 See id. at 106.

19 In prior Delaware cases, the Chancery Court has found a divergent interest where a party obtained some sort of side benefit, not merely a return on an investment.  For example, in In Re Southern Peru Copper Corporation Shareholder Derivative Litigation, the controlling stockholder both orchestrated a sale and successfully pursued registration rights to induce the target company’s founding shareholder to agree to sell.  See In re S. Peru Copper Corp. S’holder Deriv. Litig., 30 A.3d 60, 99 (Del. Ch. Oct. 14, 2011).  Similarly, in In re Rural Metro Corporation, Vice Chancellor Laster found that a director and Royal Bank of Canada (“RBC”) aided and abetted the directors’ breach of fiduciary duty in the course of facilitating a short-term sale by, among other things, seeking to secure advisory fees for RBC and additional compensation for the buyer, rather than the best deal for the target.  See In re Rural Metro Corp., 88 A.3d 54, 91, 95 (Del. Ch. Mar. 7, 2014).

20 See Post-Trial Op. at 60, 70.

21 See id. at 29, 31, 35.

22 Post-Trial Op. at 120-21.

23 For example, the Court of Chancery has found overbearing and objectionable behavior by a controlling shareholder to adequately allege an aiding and abetting claim for a breach of fiduciary.  In In re INFOUSA Shareholders Litigation, the Court found that the founding shareholder of the company, Vinod Gupta, breached his fiduciary duty in a “series of related-party transactions and improper benefits allowed to flow to [Gupta] from a board that was dominated and controlled by him” as well as threatening other directors to vote for him in close board elections.  953 A.2d 963, 1002 (Del. Ch. Aug. 13, 2007).

Written by:

Cadwalader, Wickersham & Taft LLP
Contact
more
less

Cadwalader, Wickersham & Taft 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.