First Circuit: Trademark Licensee Doesn't Retain Rights After Rejection by Bankrupt Licensor - Court's Decision Causes Circuit Split, Sheds Different Light on Section 365 of Bankruptcy Code

by Holland & Knight LLP

Holland & Knight LLP


  • Considered without reference to a corresponding definition, Section 365(n) of the Bankruptcy Code seems clear. If the trustee or debtor-in-possession, as licensor, rejects an executory intellectual property license, the licensee may elect to treat that contract as terminated or retain the rights granted to it in the contract for its duration.
  • While the meaning of "intellectual property" seems almost self-evident, Congress's chosen definition in §101(35) had one crucial omission – including patents, trade secrets and copyrights, but not trademarks – when §365(n) was codified.
  • For courts within the Seventh Circuit, that omission is of little import, as trademark licensees have the option to continue using licensed trademarks, despite rejection. Based on the U.S. Court of Appeals for the First Circuit's recent interpretation of §365(n), however, a debtor/licensor's rejection of an outbound trademark license leaves the trademark licensee with only a damages claim in a case within that circuit.
  • Congress's deferral of the inclusion of trademark licenses as involving "intellectual property" has left courts with an interpretive challenge, resulting in a circuit split that leaves licensees of one type of intellectual property with different treatment depending on where their licensor files its bankruptcy case.

Statutory interpretation tenets tell us that when it comes to the Bankruptcy Code, one need not look any further than the "plain" meaning of Congress's chosen term or phrase to elicit meaning.1 These principles are challenging, however, when Congress chooses not to say something, indicates the omission is due to indecisiveness, and the "plain meaning" definition is contrary to common usage. Interpretation of §365(n) in this situation has caused a circuit split, one that leaves licensees of one type of intellectual property with different treatment depending on where their licensor files its bankruptcy case.

Considered without reference to a corresponding definition, §365(n) seems clear. If the trustee or debtor-in-possession, as licensor, rejects an executory intellectual property (IP) license, the licensee may elect to treat that contract as terminated or retain the rights granted to it in the contract for its duration. While the meaning of "intellectual property" seems almost self-evident, Congress's chosen definition in §101(35) had one crucial omission – including patents, trade secrets and copyrights, but not trademarks – when §365(n) was codified.

For courts within the Seventh Circuit, that omission is of little import, as trademark licensees have the option to continue using licensed trademarks, despite rejection. Based on the First Circuit's recent interpretation of §365(n), however, a debtor/licensor's rejection of an outbound trademark license leaves the trademark licensee with only a damages claim in a case within that circuit.

To fully appreciate the current state of §365(n) and what it means for trademark licensees, a reference to that provision's history is helpful. In 1985, the Fourth Circuit Court of Appeals was tasked with determining the impact of rejection of a patent license in Lubrizol Enters. Inc. v. Richmond Metal Finishers Inc.2 With §365(g) providing that "rejection of an executory contract ... constitutes a breach" as of the petition date, the Fourth Circuit held that rejection effectively terminated the IP license because the licensee was only entitled to a pre-petition claim for money damages, and not specific performance. The Lubrizol court acknowledged that its interpretation "could have a general chilling effect upon the willingness of ... parties to contract at all with businesses in possible financial difficulty." Nonetheless, it noted that its holding was required because "under bankruptcy law such equitable considerations may not be indulged by courts in respect of the type of contract here in issue."3

Congress reacted relatively swiftly and purposefully, introducing §365(n) to the Bankruptcy Code in 1988 to ensure that "rights of an intellectual property licensee to use of the licensed property cannot be unilaterally cut off" upon rejection of a license.4 As enacted, §365(n) reads:

If the trustee rejects an executory contract under which the debtor is a licensor of a right to intellectual property, the licensee under such contract may elect –

(A) to treat such contract as terminated by such rejection if such rejection by the trustee amounts to such a breach as would entitle the licensee to treat such contract as terminated by virtue of its own terms, applicable nonbankruptcy law, or an agreement made by the licensee with another entity; or

(B) to retain its rights (including a right to enforce any exclusivity provision of such contract, but excluding any other right under applicable nonbankruptcy law to specific performance of such contract) . . . as such rights existed immediately before the case commenced, for (i) the duration of such contract; and (ii) any period for which such contract may be extended by the licensee as of right under applicable nonbankruptcy law. 

Additional, related provisions are contained in §365(n)(2) and (3). In essence, §365(n) allows licensees to continue using licensed IP after rejection, on certain conditions.

Congress then defined the "intellectual property" within §354(n)'s purview as meaning: (1) a trade secret; (2) an invention, process, design or plant; (3) a patent application; (4) a plant variety; (5) a work of authorship; or (6) a mask work – all to the extent protected by applicable nonbankruptcy law.5 In doing so, Congress established that patent and copyright licenses are within §365(n)'s scope, and the text indicates that trademarks are not. A review of §365(n)'s legislative history reveals that Congress's decision to exclude trademarks from protected "intellectual property" was based on a need for further deliberation rather than a conclusive determination, stating:

[T]he bill does not address the rejection of executory trademark, trade name or service mark licenses by debtor-licensors. While such rejection is of concern because of the interpretation of section 365 by the Lubrizol court and others ... such contracts raise issues beyond the scope of this legislation. In particular, trademark, trade name and service mark licensing relationships depend to a large extent on control of the quality of the products or services sold by the licensee. Since these matters could not be addressed without more extensive study, it was determined to postpone congressional action in this area and to allow the development of equitable treatment of this situation by bankruptcy courts.6

The subject then seems to have fallen off the legislative agenda. Because Congress did not expressly protect trademark licensees under §365(n), some courts have reasoned by negative inference7 that the Lubrizol holding continued to govern, cutting off a trademark licensee's rights upon rejection of its license.8 Other courts have held that rights granted licensees under trademark licenses are not automatically extinguished through rejection, stating a view that contract rejection is merely a breach, not a termination, and that based on the provision's legislative history, bankruptcy courts should use their equitable powers9 to decide, in each instance, whether trademark licensees may retain their license-granted rights following rejection.10

The Seventh Circuit was one of the first appellate courts11 to have had the opportunity to weigh in on this divided issue in Sunbeam Products Inc. v. Chicago Am. Mfg. LLC.12 In Sunbeam, a licensee bargained for the right to manufacture and sell products using the debtor's patents, and relatedly, to use the debtor's tradename. After sale of the debtor's intellectual property, the purchaser sued the licensee to enjoin the licensee's sales of patented product and its use of the trademark. Diverging from Lubrizol, the Seventh Circuit held that the Bankruptcy Code does not provide that "any rights of the other contracting party have been vaporized" through rejection. Accordingly, the trademark licensee's bargained-for rights remained in place despite rejection and sale of the subject intellectual property.13

Meanwhile, the U.S. House of Representatives drafted a bill to include "trademarks" within the definition of "intellectual property," and to state that "in the case of a trademark ... the trustee shall not be relieved of a contractual obligation to monitor and control the quality of a licensed product or service."14 That bill did not gain traction.

This brings us to the present. Some five years after issuance of the Sunbeam holding, the First Circuit was presented in Mission Product Holdings Inc. v. Tempnology LLC (In re Tempnology LLC)("Mission Products"),15 with an appeal involving rejection by a debtor-licensor of certain intellectual property licenses that required the Court to assess the interplay between §365(n) and (g). In Mission Products, the debtor, Tempnology LLC, had developed technology that enabled fabric to stay cool during exercise. Tempnology entered into a "co-marketing and distribution agreement" with Mission Product Technology (the licensee) through which Tempnology granted the licensee (1) non-exclusive, irrevocable, royalty-free, fully paid-up, perpetual, transferable license to exploit Tempnology's patents; (2) exclusive rights to distribute and sell products manufactured by Tempnology; and (3) a related license to use Tempnology's trademarks (the "license agreement").

Tempnology filed a chapter 11 petition with the U.S. Bankruptcy Court for the District of New Hampshire and promptly moved to reject the License Agreement. After rejection, Tempnology moved for determination of the remaining rights of the licensee under §365(n). While conceding that the licensee held the option to retain rights associated with the patent license, Tempnology asserted that the Licensee's distribution rights and trademark license were not protected "intellectual property" under §365(n). The licensee contended that its exclusive distribution rights were expressly protected "exclusivity provisions" associated with the patent license, and asked the bankruptcy court to use its equitable powers to enable it to retain use of the licensed trademark post-rejection.

The bankruptcy court agreed with Tempnology, and held that the Licensee did not retain the exclusive distribution rights nor the trademark license after rejection, with regard to the latter, holding that "the omission of trademarks from the definition of intellectual property in Section 101(35A) indicates that Congress did not intend for them to be treated the same as the six identified categories."16 On appeal, the First Circuit Bankruptcy Appellate Panel (BAP) agreed with the bankruptcy court that the right to distribute the debtor's product did not involve "intellectual property," but reversed with regard to the trademark licenses, following the holding in Sunbeam, supra.17

An appeal to the First Circuit followed. Like the BAP, the First Circuit concluded, after a careful analysis of the text of §365 and terms used therein, that even though the licensee may have held certain "exclusive" rights to distribute the debtor's product, since those rights were not "intellectual property," they did not qualify as an "exclusivity provision" that could be enforced following rejection of the corresponding agreement for purposes of §365(n)(1)(B). Relatedly, and importantly, a divided panel of the Court declined to follow the Seventh Circuit's approach in Sunbeam given that "trademarks" were not included in the Code's "intellectual property" definition, and the statute does not "contain any catchall or residual clause from which one might infer the inclusion of properties beyond those expressly listed."

The First Circuit also did not find appropriate circumstances to vary from application of Congress's chosen words, noting that following the holding in Sunbeam would hamper a debtor's attempt to use rejection to "release the debtor's estate from burdensome obligations" given the nature of trademarks under non-bankruptcy law.18 The majority found justification for the congressional differentiation among intellectual property types, stating that "the effective licensing of a trademark requires that the trademark owner – here Debtor, followed by any purchaser of its assets – monitor and exercise control over the quality of the goods sold to the public under cover of the trademark."19 Failure to monitor and exercise this control jeopardizes the continued validity of the owner's own trademark rights.20

As a result, the First Circuit was concerned that the Seventh Circuit's holding effectively forced a debtor "to choose between performing executory obligations arising from continuance of the license or risking the permanent loss of its trademarks," resulting in an improper restriction on a debtor's ability to use §365 to free itself from executory obligations. Equity could not be invoked in favor of the licensee, the First Circuit explained, since Congress did not provide courts with the ability to craft exceptions to §365(n)'s text, as it had done elsewhere in the Code.21 Instead, the First Circuit indicated its favor for "the categorical approach of leaving trademark licenses unprotected from court-approved rejection, unless and until Congress should decide otherwise."22 The First Circuit agreed with the bankruptcy court that rejection left the licensee with only a pre-petition damages claim, while Tempnology had no further obligations. In this regard, the First Circuit indicated that it was applying a "plain meaning" approach to consideration of the issues, precluding judicial statutory alteration due to concern for the consequences to the licensee.23 The implication of the First Circuit's ruling appears to be that following rejection of the Tempnology agreement, the Licensee would continue to hold ability to exploit Tempnology's patents for manufacture, yet it could not market those products under Tempnology's well-known brand-names. 

Congress's deferral of the inclusion of trademark licenses as involving "intellectual property" has left courts with an interpretive challenge. Judicial attempts to sort through the "plain meaning" of §365(n), common usage and equities of the situation left by this legislative uncertainty could mean the rights of trademark licensees will be diametrically different depending on whether the licensor files its bankruptcy case within Massachusetts or Illinois. This situation undeniably makes "bankruptcy more a sword than a shield," at least within the First Circuit, placing the onus on trademark licensees to negotiate and plan accordingly.24

Reprinted with permission from the ABI Journal, Vol. XXXVII, No. 5, May 2018.

The American Bankruptcy Institute is a multi-disciplinary, non-partisan organization devoted to bankruptcy issues. ABI has more than 12,000 members, representing all facets of the insolvency field. For more information, visit  


1See Merit Management Group, LP v. FTI Consulting, Inc., 583 U.S. __, __ S.Ct. __ (2018)("Our analysis begins with the text of [the statute] and we look to both the language itself [and] the specific context in which that language is used.")(quotation omitted); RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 648, 132 S.Ct. 2065; U.S. v. Ron Pair Enters., 489 U.S. 235, 109 S.Ct. 106 (1989)(citation omitted)("where, as here, the statute's language is plain, the sole function of the courts is to enforce it according to its terms.").

2 756 F.2d 1043 (4th Cir. 1985).

3Id. at 1045-1048

4See S. Rep. No. 100-505.

5See 11 U.S.C. 101(35)(A).

6 S.Rep. No. 100-505, at 5, reprinted in 1988 U.S.C.C.A.N. at 3204.

7 This is in accord with the canon of expressio unius est exclusio alterius. See United States v. Landmesser, 378 F.3d 308, 313 n. 8 (3d. Cir. 2004).

8See, e.g., In re Old Carco LLC, 406 B.R. 180 (Bankr. S.D.N.Y. 2009); In re HQ Global Holdings, Inc., 290 B.R. 507, 513 (Bankr.D.Del. 2003); In re Centura Software Corp., 281 B.R. 660, 674-75 (Bankr. N.D. Cal. 2002).

9 These courts view the Code as "silent," and therefore, find it appropriate to review the legislative history. See DiGiovanni v. Traylor Bros., Inc., 75 F.3d 748, 755 (1st Cir. 1996)(citation omitted).

10See Exide Techns., 607 F.3d 957, 965 (3d Cir. 2010)(Ambro, J., concurring)(Use of §365 to reclaim trademark rights a debtor bargained away "makes bankruptcy more a sword than a shield, putting debtor-licensors in a catbird seat they often do not deserve."); In re Crumbs Bakeshop, Inc., 522 B.R. 766 (Bankr. D.N.J. 2014).

11 In Exide Techns., supra¸ the license was determined to be non-executory.

12 686 F.3d 372 (7th Cir. 2012).

13According to the Sunbeam court, §365(n)'s legislative history indicates that "omission [of trademarks] was designed to allow more time for study, not to approve Lubrizol." Id. at 377.

14See Innovation Act of 2013, H.R. 3309, 113th Cong. §6(d) (2013).

15 879 F.3d 389 (1st Cir. 2018).

16 541 B.R. 1, 7-8 (Bankr. D.N.H. 2015).

17 559 B.R. 809 (B.A.P. 1st Cir. 2016).

18In re Mission Products, 879 F.3d at 402 (quoting Bildisco & Bildisco, 465 U.S. 513, 528 (1984)).

19Id. (citation omitted).

20Id. (citations omitted).

21The First Circuit gave as examples §§365(d)(5) and 552(b)(1).

22Mission Prods., at 403-404 (citation omitted).

23 Hon. Juan R. Torrueala, writing for the minority, disagreed "with the majority's bright-line rule" and urged that since §365(a) was silent as to trademark licenses, resort to review of the legislative history was proper." Mission Prods., at 405-06 (Torrueala, J., concurring in part, dissenting in part).

24In re Exide Techs., 607 F.3d at 967-68 (Ambro, J., concurring).

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight 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 (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

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 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 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 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

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:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (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
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit 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 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:

- 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.