FTC's Winning Streak Restored: Seventh Circuit Reverses Denial of Preliminary Injunction in Chicago Hospital Merger, Competition News Volume 2016, Issue 1

by Pepper Hamilton LLP
Contact

Pepper Hamilton LLP

Recent appellate decisions confirm the uphill battle hospitals face when merging with other hospitals.

On October 31, the U.S. Court of Appeals for the Seventh Circuit overturned the district court’s ruling in Federal Trade Commission v. Advocate Health Care, No. 15-cv11473 (N.D. Ill. June 14, 2016). That decision found that the government had not properly defined the geographic area of competitive significance and, consequently, denied the FTC’s requested preliminary injunction of the merger of two Chicago-area hospital systems. However, the Seventh Circuit reversed and ordered the district court to reconsider its preliminary injunction ruling in light of the Seventh Circuit’s instructions and findings on the definition of a relevant geographic market.1

For almost a decade, the FTC successfully blocked the hospital mergers it challenged. Then, only one month before the Advocate district court decision, a Pennsylvania federal court was the first court since 20072 to rule against the FTC at the preliminary injunction stage in a case involving a merger of hospitals.3 The FTC appealed the Pennsylvania decision to the Third Circuit and won in late September.4 With the decision in Advocate, the Seventh Circuit followed suit by embracing the FTC’s market definition framework and reinstated the FTC’s winning streak.

The Facts and Proceedings

In September 2014, Advocate Health Care Network and NorthShore University HealthSystem entered into a strategic affiliation agreement. The Advocate health care system consists of 11 hospitals. More than two-thirds of Advocate’s revenues from commercial insurers (payers) come from risk-based contracts. The NorthShore health care system consists of four hospitals. Its commercial payer revenues are generated primarily through fee-for-service agreements.

A key touchstone of all antitrust counseling or advice is the goal or purpose of the client’s proposed conduct, whether that conduct is an acquisition or a loyalty discount program. Here, Advocate’s stated rationale for the merger is to develop “a new, lost-cost, high-performing network (HPN) insurance product” to be sold throughout the Chicago area. According to Advocate, it needs the NorthShore assets to offer an HPN product. NorthShore’s stated rationale is that the merger will permit it to “engage in large-scale full risk contracting,”5 which it is unable to do presently because it lacks sufficient geographic scope and utilization and care management tools that Advocate can offer.

The hospitals notified the FTC of the merger, and, after an investigation, the FTC issued an administrative complaint in December 2015, alleging that the merger may substantially lessen competition. Additionally, in February 2016, the FTC moved for a preliminary injunction in the Northern District of Illinois to prevent the hospital systems from closing the proposed transaction. After a multiday evidentiary hearing on the preliminary injunction motion, the court issued its ruling. The FTC appealed to the Seventh Circuit immediately, and the district court stayed the merger pending the appeal.

The District Court Decision

In deciding whether to grant a preliminary injunction, the district court was required to (1) determine the likelihood that the FTC will ultimately succeed on the merits and (2) balance the equities. The court concluded that the FTC failed to demonstrate that it would succeed on the merits.

To succeed on the merits, the FTC has to prove that the merger may substantially lessen competition in a relevant product and geographic market. In this case, the parties agreed on the product market — general acute care services sold to commercial payers and their insured members. However, the parties diverged on the geographic market in which to analyze the merger’s effects. The FTC’s expert argued that the geographic market should be limited to the “North Shore Area.” This area consists of six of the 15 merging hospitals as well as five additional hospitals not associated with the merging entities. All of these facilities are located in northern Cook County and southern Lake County. The FTC’s geographic market is based on the theory that patients want care from local providers and the location of the hospitals, and the market includes (1) local hospitals while excluding “destination hospitals,”6 (2) hospitals “with at least a two percent share in the area from which the relevant Advocate and NorthShore hospitals attract patients,” and (3) hospitals that draw patients from the same area as both Advocate and NorthShore rather than those that overlap with just one of the systems.

After defining the market, the FTC tested that geographic area using the “hypothetical monopolist test.” This test examines whether a hypothetical monopolist, which controlled all the hospitals in the alleged geographic market, could sustain a small but significant price increase (SSNIP) for services provided by the merging hospitals. An alleged geographic market passes the test if the hospitals located there are close enough substitutes that it would be profitable for the monopolist to impose that price increase. The FTC calculated the diversion ratio, or the percentage of patients that would switch to another hospital in the North Shore area for general acute services if their first choice were no longer available, to be 48 percent. According to the FTC’s economist, this intramarket diversion ratio, or substitution level, was sufficiently high to pass the hypothetical monopolist test.

The hospital systems, though, argued that the FTC’s geographic market definition was too narrowly drawn and that its definition arbitrarily excluded six destination hospitals and other facilities providing services in the Chicago area. Specifically, they argued that the market definition should include hospitals that are outside the North Shore area, but that are associated with doctor’s offices and outpatient facilities within the area and refer significant inpatient volume for general acute services hospitals outside the North Shore area. In support of this contention, the hospital systems used the FTC’s own diversion ratios to demonstrate that Northwestern Memorial Hospital, which is located outside the North Shore area, is the second or third choice for patients that use five of the six merging hospitals in the area.

The district court agreed with the hospital systems, concluding that the criteria used by the FTC to define the geographic market were flawed. The court noted that the FTC provided no economic basis for excluding “destination hospitals” from the geographic market. The court explained that the FTC merely assumed that these “destination hospitals” were not substitutes for Advocate and NorthShore because patients prefer to receive general acute care services closer to home. The court, however, found the testimony regarding customer preference ambiguous, with some witnesses agreeing that patients like to receive care closer to home (especially for more routine services) and other witnesses testifying that patients go to facilities closer to their jobs in the city. Further, the court noted that exclusion of “destination hospitals” from the relevant market ignored “commercial realities.” Commercial payers negotiate a single contract with a hospital system for both inpatient and outpatient care. These outpatient services are on the rise and impact where a patient chooses to receive inpatient care. The presence of doctors and outpatient facilities located in the North Shore area that are affiliated with hospitals outside of the North Shore area drive patients to these outside hospitals for inpatient services.

In addition, the court criticized the FTC economist’s third criterion, explaining that hospitals need not overlap with both Advocate and NorthShore in order to constrain pricing post-merger.

Citing the U.S. Supreme Court’s 1962 decision in Brown Shoe, 7 Judge Alonzo wrote, “There is no formula for determining the geographic market; rather it should be identified in a ‘pragmatic [and] factual’ way and should ‘correspond to the commercial realities of the industry.’” From this opinion, it appears that the court was focused on these “commercial realties” of the market more than the economic test presented by the FTC’s expert. For the above reasons, the court determined that the FTC failed to prove a relevant geographic market that conformed to the commercial realities of health care services in the Chicago area and, thus, denied the FTC’s preliminary injunction motion.

The Appeal

As noted above, a day after the district court’s decision, the FTC appealed to the Seventh Circuit Court of Appeals. The FTC then moved for, and the district court entered, an injunction to prevent the closing of the Advocate-NorthShore transaction pending appellate review.8

In its appeal, the FTC principally argued that the district court erred, as a matter of law, when it failed to take into consideration the results of the hypothetical monopolist, or SSNIP, test. It noted that both the FTC’s and hospitals’ experts agreed that the SSNIP test was the appropriate economic measure of the market definition. In addition, it pointed to court decisions that relied on the hypothetical monopolist test to define the geographic market in cases involving health care-related transactions.9 Accordingly, the FTC contended that the district court erred by focusing on patient rather than commercial payer preference and how the FTC’s geographic market was constructed, as opposed to whether the market passed the hypothetical monopolist test. Because the FTC’s geographic market passed the SSNIP test, it was properly defined.

In response, the hospitals first pointed out that the district court’s market definition decision is subject to deference on appeal, given that it is highly fact-specific and the result of a thorough examination of a voluminous record. In addition, they contended that the court’s opinion correctly determined that the FTC failed to provide evidentiary support for the crucial assumptions it made in constructing the geographic market and that the FTC’s request for an injunction pending appeal did not offer any facts to contradict the court’s conclusion that the FTC’s geographic market ignored commercial realities.

The Seventh Circuit Decision

In deciding to reverse and remand the district court’s opinion, the Seventh Circuit concluded that the lower court’s factual findings with respect to the relevant geographic market were clearly erroneous. The Seventh Circuit explained that the district court’s criticisms of the FTC’s alleged geographic market were incorrect in four ways: (1) overlooking the hypothetical monopolist test results of FTC’s expert and mistaking the test’s iterative process for logical circularity; (2) finding that the FTC lacked a basis for distinguishing local hospitals from academic centers; (3) determining that the evidence about patient preference for local hospitals was ambiguous; and (4) falling prey to the “silent majority” fallacy. The silent majority fallacy is the purportedly incorrect assumption that patients who travel a distance to obtain services constrain the price that hospitals charge to closer patients. This article will explain, in turn, each of these points below.

First, the Seventh Circuit concluded that the FTC correctly used an iterative process — known as the hypothetical monopolist test — to examine whether the proposed market was too narrow. Specifically, the FTC correctly proposed a candidate market, simulated monopolization of the market, adjusted the market if a hospital outside the candidate market could constrain the rates of the hypothetical monopolist in the candidate market, and reran the simulation as necessary. This was not circular, and, if the FTC’s candidate market were too narrow, the iterative testing of that market would reveal that it should be expanded.

Second, the Seventh Circuit did not find support for the district court’s determination that the FTC improperly excluded academic medical centers from the relevant geographic market. Witnesses consistently testified that the demand for academic facilities differed from demand for general acute care hospitals that draw patients from much smaller geographic areas. Both insurance company and hospital executives distinguished academic facilities from community hospitals by the complexity of services they offer. The Seventh Circuit found such testimony “an obvious and sound basis for distinguishing between academic medical centers and other hospitals like those operated by Advocate and NorthShore.”

Third, the Seventh Circuit rejected the district court’s finding that evidence of patient preference for short travel distance was equivocal. The Seventh Circuit determined that the district court incorrectly relied on testimony that work place locations and outpatient relationships influence patient choices and distinguished that testimony from testimony regarding patient hospital care preference. Based on the foregoing, the Seventh Circuit found strong evidence exists that 73 percent of patients living in the FTC’s proposed market receive hospital care there, 80 percent of those patients drive less than 15 miles or 20 minutes to their chosen hospital, and 95 percent drive 30 miles or less. Therefore, the evidence supported Dr. Tenn’s determination that patients generally chose hospitals close to their homes in establishing his candidate market.

Fourth and finally, the Seventh Circuit explained that the district court’s analysis incorrectly relied on certain diversion ratios — the percentage of patients who would choose a hospital outside the relevant market if their first choice was unavailable. Instead, the Seventh Circuit determined that “insurers are the most relevant buyers” of health care services, not the patients themselves. The Seventh Circuit noted that insurers consider whether employers would offer their plans and whether employees would sign up for those plans. Accordingly, diversion ratios or patient substitution measures “do not neatly translate into options for insurers.” The court found persuasive that insurance executives unanimously testified that an insurance network must include either an Advocate or NorthShore facility in the proposed geographic area to be marketable. As such, the hospitals have market power over the payers, which need these facilities to offer marketable products to customers that do not travel far to seek general acute care.

Lessons Learned

It remains to be seen exactly what the district court will do in light of the Seventh Circuit’s ruling and whether the hospitals will continue their fight through the long and expensive FTC administrative hearing process or abandon the merger. However, what is clear is that these recent appellate decisions confirm the uphill battle hospitals face when merging with other hospitals. As health care costs rise and hospital systems look to combine, these entities should assess the risk of a challenge by the FTC and consider the following:

  • Whether collaborations, short of merger, might achieve the same or similar efficiencies.
  • Proof of successful payer plans that do not include the merging parties or that payers were prepared to develop plans without them would be powerful evidence that the post-transaction system could not dictate rates.
  • When one of the merging hospitals is a “destination hospital,” the hospitals should consider whether there are any academic medical centers outside the candidate market to which patients go for inpatient care.

 

 

 

Endnotes

1 Fed. Trade Comm’n v. Advocate Health Care Network, No. 16-02492 (7th Cir. Oct. 31, 2016), available at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D10-31/C:16-2492:J:Hamilton:aut:T:fnOp:N:1854909:S:0.

2 In re Evanston Nw. Healthcare, 2007 WL 2286195 (F.T.C. Aug. 6, 2007).

3 In Federal Trade Commission v. Penn State Hershey Medical Center, No. 1:15-cv-2362 (M.D. Pa. May 9, 2016), the Middle District of Pennsylvania denied the FTC’s motion to preliminarily enjoin the merger of Penn State Hershey Medical Center and Pinnacle Health System. For more on the decision, read our article, “A Sweet Win for Hershey Medical Center's Proposed Merger: District Court Denies FTC's Attempt to Block Pennsylvania Hospital Merger,” available at http://www.pepperlaw.com/publications/a-sweet-win-for-hershey-medical-centers-proposed-merger-district-court-denies-ftcs-attempt-to-block-pennsylvania-hospital-merger-2016-05-16/.

4 Fed. Trade Comm’n v. Penn State Hershey Med. Ctr., No. 16-2365 (3d. Cir. Sept. 27, 2016). For more on the Third Circuit’s opinion, read our article, “The End of the Road for Hershey Medical Center’s Merger: Parties Abandon Transaction After Third Circuit Rules That Hospital Merger Should Be Preliminarily Enjoined,” available at http://www.pepperlaw.com/publications/the-end-of-the-road-for-hershey-medical-centers-merger-parties-abandon-transaction-after-third-circuit-rules-that-hospital-merger-should-be-preliminarily-enjoined-2016-10-17/.

5 Risk contracting, also known as a shared savings arrangement, is based on an agreed-to benchmark spending level that a population is likely to incur. If the provider spends less than the benchmark, it will split the difference between the benchmark and the actual cost with the commercial insurance company.

6 “Destination hospitals” are those “that attract patients from throughout the Chicago metropolitan area, at long distances.” These hospitals include Northwestern Memorial Hospital, Rush University Hospital, University of Chicago Hospital, Loyola University Hospital, Cancer Treatment Centers of America and Lurie Children’s Hospital.

7 Brown Shoe Co. v. United States, 370 U.S. 294, 336-37 (1962).

8 Without an injunction, the merger could have closed as early as June 20, 2016.

9 Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke’s Health Sys., Ltd., 778 F.3d 775, 784-85 (9th Cir. 2015); FTC v. ProMedica Health Sys., Inc., 2011 WL 1219281, at *55 (N.D. Ohio Mar. 29, 2011).

 

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.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton 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.