Harrison M. Thorne Publishes "Retroactive Application of Dynamex," in The Los Angeles Lawyer, March 2019, Volume 42, No. 1

by Vedder Price

As originally published in the Los Angeles LawyerMarch 2019 issue.

FOR NEARLY 30 YEARS, California businesses have used the Borello test (so named after S.G. Borello & Sons, Inc. v. Department of Industrial Relations) to determine whether workers should be classified as employees or independent contractors.1 Then, in its April 2018 Dynamex decision, the California Supreme Court adopted a different test—the ABC test—that presumes workers are employees for purposes of state wage order claims unless the hiring entity makes a significant showing to the contrary.2 However, the court did not address whether the ABC test applies retroactively.

If the test applies retroactively, businesses may be held liable for misclassifying workers under the ABC test prior to its adoption by the court. Liability for misclassifying workers can be substantial, as misclassified workers may be entitled to up to three years of meal and rest break premiums, overtime pay, and other remuneration under applicable wage orders. Thus, for example, a business that failed to provide adequate meal breaks to its 10 workers may be liable for up to $156,000 ($20 per hour x 10 workers x 5 days per week x 156 weeks). That amount doubles if the business failed to provide adequate rest breaks. Accordingly, whether the ABC test applies retroactively will significantly affect businesses in this state.

Dynamex and the ABC Test

Dynamex is a nationwide package and document delivery company. In 2005, a driver who worked as an independent contractor for Dynamex filed a lawsuit on behalf of himself and a class of similarly situated drivers, claiming that Dynamex misclassified its drivers as independent contractors rather than employees, thereby violating the applicable wage order and various sections of the California Labor Code.3 After nearly a decade litigating whether the Borello test should be used to determine worker classification, the California Supreme Court in April 2018 weighed in and adopted the ABC test for wage order claims.4 Under the ABC test, workers are presumed to be employees, unless the hiring entity proves:

(A) [T]hat the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.5

Notably, the Dynamex Court failed to address whether the ABC test applies retroactively, and denied Dynamex’s petition for rehearing seeking guidance on the issue without explanation.6 Accordingly, lower courts have been tasked with determining whether the ABC test applies retroactively on a case-by-case, ad hoc basis.

As a general rule, judicial decisions are given retroactive effect.7 However, considerations of fairness and public policy may require that a decision be applied only prospectively.8 Particular considerations relevant to the retroactivity determination include the reasonableness of the parties’ reliance on the former rule, the nature of the change as substantive or procedural, retroactivity’s effect on the administration of justice, and the purposes to be served by the new rule.9 Thus, retroactive application may be deemed inappropriate when a decision changes the law and would “unfairly undermine the reasonable reliance of parties on the previously existing state of the law.”10 “The most compelling example of such reliance occurs when a party has acquired a vested right or entered into a contract based on the former rule….”11

On the other hand, judicial decisions changing unsettled or poorly defined law are typically deemed foreseeable, thereby warranting retroactive application. For instance, while tort liability for spoliation of evidence had been recognized by at least two California courts of appeal since 1984,12 California’s Supreme Court had not officially recognized the tort, and various other state’s courts had rejected the tort.13 Accordingly, in Penn v. Prestige Stations, Inc., the Fourth District Court of Appeal held that reliance on the two court of appeal cases recognizing spoliation of evidence as a viable cause of action was not reasonable and reversed a jury’s award of compensatory and punitive damages to a slip-and-fall plaintiff for spoliation of evidence issued prior to the California Supreme Court’s rejection of tort liability for spoliation.14 In short, whether a decision applies retroactively is often a fact-intensive inquiry that cannot be easily boiled down into a black-letter statement of law.

In the months following the Dynamex court’s decision, various courts have been asked to decide whether the ABC test applies retroactively to litigation initiated prior to the decision. At least two state courts have held it does.

In Johnson v. VCG-IS, LLC, a class of exotic dancers brought suit in the Orange County Superior Court in 2015 alleging the club they worked at misclassified them as independent contractors and, therefore, did not pay them all wages due. During a May 2018 status conference preceding a motion for summary judgment and trial, the parties jointly requested that the court clarify whether the recently adopted ABC test would apply in the case. In a ruling on a motion in limine, Judge William Claster ruled that the ABC test applies retroactively, as 1) judicial decisions are generally given retroactive effect; 2) the Dynamex court “did not state that its decision applied only prospectively,” which “suggests that the decision should apply retroactively;” and 3) the court denied Dynamex’s petition for rehearing.15

Months later, the Fourth District Court of Appeal applied the ABC test retroactively in Garcia v. Border Transportation Group, LLC.16 In Garcia, a taxi driver filed suit against a taxi company he formerly drove for and its owner, alleging that he was misclassified as an independent contractor and, therefore, did not receive meal and rest breaks, minimum wages, or overtime wages, and was wrongfully terminated, among other things. The defendants moved for summary judgment on all of the driver’s claims, arguing that he was properly classified under the Borrello test. The trial court ruled in favor of the defendants, and the driver appealed the court’s decision.

While the driver’s appeal was pending, the California Supreme Court issued its Dynamex decision. The court of appeal invited the parties to brief the effect of Dynamex on the appeal; however, the defendants did not address retroactive application of the ABC test. Accordingly, the court did not officially address the issue. However, in a footnote, the court noted that 1) judicial decisions will be given retroactive effect unless doing so would unfairly undermine the parties’ reliance on the previously existing state of the law, and 2) the Dynamex decision—which merely “extended principles stated in [established judicial decisions]”—represents “no greater surprise than tort decisions that routinely apply retroactively.”17 Thus, the court of appeal held that the ABC test would apply retroactively to the driver’s wage order claims, but not to his non-wage order claims (including his overtime and wrongful termination claims).

The fight over retroactive application of the ABC test is also unfolding at the federal level. In 2015, a Grubhub driver filed a putative wage and hour class action alleging that he and other similarly situated drivers were misclassified and therefore did not receive meal premiums and overtime pay, among other things. After a bench trial, the District Court for the Northern District of California—applying the Borello test—found that Grubhub properly classified the driver as an independent contractor, and therefore entered judgment in Grubhub’s favor.18 The driver appealed the judgment to the Ninth Circuit Court of Appeals,19 and while the appeal was pending, the California Supreme Court issued its Dynamex decision.

In his opening appellate brief, the driver argued that the California Supreme Court is the only court that can limit retroactive application of its decisions and that the court’s rejection of Dynamex’s petition to modify its decision is evidence that the ABC test applies retroactively.20 Grubhub countered that the Dynamex court’s decision not to address retroactivity “simply leaves [this] issue open for resolution on a case-by-case basis.”21 Moreover, Grubhub argued that the ABC test is a “tectonic shift” in labor law that was not foreseeable and thus cannot be retroactively applied.22 The Ninth Circuit will issue its decision in the coming months.

What’s Next

With the caveat that it is, of course, impossible to determine how the Ninth Circuit will rule in Grubhub, there are convincing arguments against retroactive application of the ABC test. First, prior to Dynamex, California courts applied the Borello test “nearly unanimously” to determine worker classification.23 Indeed, the Department of Labor Standards Enforcement has long endorsed the Borello test’s application.24 Accordingly, it is reasonable to assume that businesses relied on the previously existing state of the law, which weighs against retroactive application of the ABC test.25 Second, the Dynamex decision created new law drastically different from existing law. Under Borello, the primary consideration for determining a worker’s classification turns on whether a hiring entity has the right to control the “manner and means” by which a worker accomplishes the desired result.26 Yet under the ABC test, a worker will be deemed an independent contractor only if a hiring entity satisfies all three prongs of the ABC test. Thus, a hiring entity’s failure to prove any one of these three prerequisites will be sufficient to establish the worker is an employee.27 Because prongs B and C do not require a showing of control, an employment relationship can exist under the ABC test even when a hiring entity exercises no control over a worker. This represents a significant departure from existing law, as before the Dynamex decision was issued, a business could typically avoid the employ¬er-employee relationship by refraining from exercising significant control over a worker. Third, the Dynamex Court’s refusal to hear Dynamex’s petition for rehearing is not evidence that the test applies retroactively, as the Court’s refusal to hear a matter does not constitute a ruling on the merits.28 Fourth, the two courts to apply the ABC test retroactively—Johnson and Garcia—offer no precedential value: the Johnson ruling was issued by a trial court in response to an exclusionary motion, and the Garcia decision’s retroactivity discussion was relegated to dicta contained in a footnote.

On the other hand, the Ninth Circuit may determine that the decision to apply the ABC test retroactively is best made on a case-by-case basis. Indeed, the California Supreme Court has held that a “blanket pronouncement” on retroactivity may be inappropriate where the decision turns on a “variety of case-specific factors, including the degree of hardship or other adverse consequences that would result from a retroactive application of [the new decision].”29 Additionally, whether a particular business relied on the Borello test may require individual inquiries. Yet, if the retroactivity decision is left to lower courts on a case-by-case basis, conflicting decisions by lower courts will likely lead to appeals, bringing the retroactivity decision back to the appellate level. This will likely inform the Ninth Circuit’s decision in Grubhub.

Should the court hold the ABC test applies retroactively, affected businesses will likely appeal the decision to the California Supreme Court. While the court previously refused Dynamex’s petition for rehearing, the massive influx of litigation may signal to the state’s high court a need to address the retroactivity issue.

Preparing Businesses and Workers

In the midst of the legal maneuvering unfolding in the courts, California businesses should investigate their classification policies to 1) ensure compliance with the ABC test going forward, and 2) assess whether their classification policies complied with the ABC test pre-Dynamex, as businesses may see an influx of claims going back three years in the event the ABC test is deemed to apply retroactively.

Workers should likewise assess their job duties and work arrangements to ensure they are properly classified and thus receiving proper benefits under the new ABC test. In particular, employees are entitled to workers’ compensation coverage, insurance coverage, paid leaves of absence, and myriad other benefits. To ensure they are properly classified, workers should consult with local labor law advocacy groups or an attorney.

1 S.G. Borello & Sons, Inc. v. Department of Ind. Relations, 48 Cal. 3d 341 (1989).
2 The ABC Test applies only to Industrial Welfare Commission wage order claims. Dynamex Operations West, Inc. v. Superior Ct., 4 Cal. 5th 903, 964 (2018).
3 Dynamex, 4 Cal. 5th at 919.
4 For a more thorough discussion of the Dynamex decision, see Tamara Kurtzman, Deconstructing Dynamex, L.A. LAWYER, Sept. 2018.
5 Dynamex, 4 Cal. 5th at 916-17.
6 Id. at 903, reh’g denied (June 20, 2018).
7 See Newman v. Emerson Radio Corp., 48 Cal. 3d 973, 978 (1989).
8 Claxton v. Waters, 34 Cal. 4th 367, 378 (2004).
9 Id. at 378-79.
10 Newman, 48 Cal. 3d at 983.
11 Id. at 989.
12 See Smith v. Superior Ct., 151 Cal. App. 3d 491 (1984); see also Willard v. Caterpillar, Inc., 40 Cal. App. 4th 892 (1995).
13 See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W. 2d 434, 437 (1990) (citing cases declining to adopt tort).
14 Penn v. Prestige Stations, Inc., 83 Cal. App. 4th 336, 341 (2000).
15 Johnson v. VCG-IS, LLC, No. 30-2015-00802813, Ruling on Motion in Limine, (Cal. Superior Ct. July 18, 2018).
16 Garcia v. Border Transp. Group, LLC, 28 Cal. App. 5th 558 (2018).
17 Id. at page 572 n.12.
18 Lawson v. Grubhub, Inc., No. 3:15-cv-05128, Dkt. No. 221 (N.D. Cal. Feb. 8, 2018).
19 Id., Dkt. No. 226 (Mar. 7, 2018).
20 Lawson v. Grubhub, Inc., No. 18-15386, Dkt. No. 28 (9th Cir. Nov. 9, 2018).
21 Id., Dkt. No. 41 (9th Cir. Jan. 9, 2019).
22 Id.
23 Lawson, No. 3:15-cv-05128, Dkt. No. 249 (N.D. Cal. Nov. 28, 2018).
24 See The 2002 Update of the DLSE Enforcement Policies and Interpretations Manual (Revised) (April 2017), §28, available at http://www.dir.ca
25 See Newman v. Emerson Radio Corp., 48 Cal. 3d 973, 983 (1989).
26 S.G. Borello & Sons, Inc. v. Department of Ind. Relations, 48 Cal. 3d 341, 350 (1989).
27 Dynamex Operations West, Inc. v. Superior Ct., 4 Cal. 5th 903, 964 (2018).
28 See Camper v. Workers’ Comp. Appeals Bd., 3 Cal. 4th 679, 689 n.8 (1992) (“[D]enial of a petition for review is not an expression of opinion of the Supreme Court . . .”); see also Rosen v. State Farm General Ins. Co., 30 Cal. 4th 1070, 1076 (2003) (It is a well-established rule that an opinion is only authority for those issues actually considered or decided.”).
29 Rider v. Cty. Of San Diego, 1 Cal. 4th 1, 13 (1991).

[View source.]

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.

© Vedder Price | Attorney Advertising

Written by:

Vedder Price

Vedder Price on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"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.