Health Care Enforcement Quarterly Roundup - Q2 | July 2018

McDermott Will & Emery


Following our inaugural installment of the Health Care Enforcement Quarterly Roundup, we are pleased to be back this quarter with another overview of key enforcement trends in the health care industry. In this issue, we report on continued interpretations of the landmark Escobar case, the latest guidance from US Department of Justice (DOJ) leadership regarding enforcement priorities, the uptick in state and federal efforts to combat the opioid crisis, and recent court decisions regarding the use of statistical sampling in False Claims Act (FCA) cases. We also examine a recent increase in regulatory scrutiny of co-location and shared services/equipment arrangements.

Continued Interpretations of the Landmark Escobar Case

Two years after the Supreme Court’s ruling in Universal Health Services, Inc. v. United States ex rel. Escobar,

136 S. Ct. 1989 (2016), lower courts continue to grapple with several issues raised in the decision. Escobar held that the “implied certification” doctrine can be a basis for FCA liability if certain requirements are satisfied. Those requirements include, without limitation, the following:
  • Compliance with the regulatory, statutory or contractual provision in question must be “material” to the government’s decision to pay a claim; and
  • The defendant must know that such compliance is material to the government’s payment decision.

As we reported in the Q1 Quarterly Roundup, courts have interpreted this reinvigorated materiality standard favorably for FCA defendants at all stages of litigation, whether on motions to dismiss, motions for summary judgment or at trial. In recent months, district courts have dismissed or granted summary judgment in cases on materiality grounds.[1] United States ex rel. Cressman v. Solid Waste Servs., Inc., is an example of one such case.  There, the Eastern District of Pennsylvania demonstrated that materiality can be a potent defense weapon on summary judgment. The Cressman court granted summary judgment to the defendant because the government had continued to pay the defendant after the FCA suit was filed and after the government had a chance to investigate the alleged violation, belying any notion that the defendant’s alleged non-compliance was material to the government’s payment decision. No. CV 13-5693, 2018 WL 1693349, at *6 (E.D. Pa. Apr. 6, 2018). The court also noted that the government’s decision not to intervene was evidence that the defendant’s alleged violation was not material.

Although materiality has proved a valuable tool for FCA defendants, it is not always a silver bullet. The US Court of Appeals for the Sixth Circuit recently held, in a two-to-one decision, that the relator had sufficiently alleged materiality under Escobar, reversing the district court’s dismissal of the case. United States ex rel. Prather v. Brookdale Senior Living Communities, Inc., 892 F.3d 822 (6th Cir. 2018).

Over a vigorous dissent, the majority held that the government’s previous payment of non-compliant claims cannot weigh against materiality unless the government had actual knowledge of the alleged violations. In the government’s view, as articulated in its amicus brief, materiality is usually a question for the jury. This, of course, is at odds with the Supreme Court’s recognition in Escobar that materiality can be appropriate for resolution as early as a motion to dismiss. 136 S. Ct. at 2004, n. 6 (rejecting the “assertion that materiality is too fact intensive for courts to dismiss False Claims Act cases on a motion to dismiss or at summary judgment”).

The dissent, on the other hand, explained that materiality must be alleged with particularity under Rule 9(b), and pointed to the many courts that have applied a stringent pleading standard for materiality in accordance with the Supreme Court’s guidance. See Id. at 843. Although the Sixth Circuit allowed the case to proceed, the split decision illustrates the uncertainty and active litigation that continues in the wake of Escobar.  Brookdale filed a petition for rehearing en banc, which is pending at the time of this report.

Practice Note: Lawyers defending FCA cases or investigations should evaluate materiality early, particularly in situations where the government payor has not ceased paying claims despite knowledge of the alleged fraud. Many FCA cases fall short of the Escobar standard, whether on the pleadings or on the evidence, and are ripe for a motion to dismiss or for summary judgment on materiality grounds. Materiality also plays an important role in the defense of FCA investigations. If impediments to proving materiality can be demonstrated, this may impact the government’s intervention decision.

[1] See, e.g., United States v. UnitedHealthcare Ins. Co., No. 15-CV-7137, 2018 WL 2933674 (N.D. Ill. June 12, 2018); United States ex rel. Bachert v. Triple Canopy, Inc., No. 1:16-CV-456, 2018 WL 3018219, at *5 (E.D. Va. June 8, 2018); United States ex rel. Patel v. Catholic Health Initiatives, No. 4:17-CV-1817, 2018 WL 2234814 (S.D. Tex. May 16, 2018); United States ex rel. Lemon v. Nurses To Go, Inc., No. CV H-16-1775, 2018 WL 1898559 (S.D. Tex. Apr. 20, 2018); United States ex rel. Folliard v. Comstor Corp., No. CV 11-731 (BAH), 2018 WL 1567620 (D.D.C. Mar. 31, 2018).

DOJ Continues to Provide Guidance on Enforcement Priorities

As reported in the Q1 Quarterly Roundup, the Trump Administration’s DOJ has issued a series of guidance memoranda in an effort to shift enforcement priorities under the FCA. In June 2018, Acting Associate Attorney General Jesse Panuccio spoke at the American Bar Association’s 12th National Institute on the Civil False Claims Act and
Qui Tam Enforcement. Mr. Panuccio’s speech reaffirmed several of DOJ’s FCA enforcement priorities.[1]

Qui Tam Dismissals

To begin, Mr. Panuccio reaffirmed the principles outlined in the January 2018 “Granston Memorandum,” authored by Michael Granston, director of the Civil Division’s Fraud Section, that the United States should consider exercising its dismissal authority over cases that “lack merit or are otherwise contrary to the interests of justice.” The Granston Memorandum outlines several factors that prosecutors should consider in determining whether to exercise DOJ’s statutory authority to dismiss qui tam matters under 31 USC § 3730(c)(2)(A), chief among them curtailing meritless claims.[2]

While Mr. Panuccio recognized “the risks that relators may take in coming forward to expose fraudulent conduct,”
he nonetheless emphasized that the United States should consider exercising its prosecutorial discretion when presented with a “frivolous case[].”While it remains to be seen whether DOJ will take a more proactive approach to dismissing meritless qui tam cases, Mr. Panuccio’s comments serve as a reminder to the defense bar to consider appealing to prosecutors to exercise their statutory authority to dismiss weak qui tam claims pursuant to 31 USC § 3730(c)(2)(A).

Sub-Regulatory Guidance

Mr. Panuccio reiterated the attorney general’s November 2017 announcement that DOJ would no longer issue guidance documents “that have the effect of adopting new regulatory requirements or amending the law.”[3] The so-called “Sessions Memorandum” prevents DOJ from “evading required rulemaking processes by using guidance memos to create de facto regulations.”[4] The general principles outlined in the Sessions Memorandum were applied more broadly in the January 2018 “Brand Memorandum,” issued by then-Associate Attorney General Rachel Brand. The Brand Memorandum notes that “[DOJ] litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable laws in [affirmative civil action] cases.” While agency guidance is not law and does not have the force or effect of a statute or regulation, relators have often pointed to alleged failure to comply with agency guidance as the basis for FCA claims.

Reinforcing the message of the Sessions and Brand memoranda, Mr. Panuccio further explained that guidance documents should not be used to substantiate any claims of legal violations to ensure “rule of law, fair notice, and due process.” He also noted that “[w]e hope other agencies will follow this example,” suggesting that the use of subregulatory guidance by other agencies would be inconsistent with “rule of law, fair notice, and due process.” Mr. Panuccio’s comments represent the latest evolution in the shift that began with the Sessions Memorandum and continued with the Brand Memorandum.

Piling On

Mr. Panuccio spoke about DOJ’s new policy relating to “piling on,” i.e., when multiple law enforcement or regulatory agencies impose penalties on a single entity for the same conduct. He recognized “that repeated and unwarranted punishment for the same conduct has the potential to undermine the spirit of fair play and the rule of law.” As a result, DOJ has announced a policy “designed to avoid piling on by promoting coordination within the Department and with other regulators to apportion penalties and fines where appropriate, to ensure that defendants are subject to the appropriate, not just the highest, level of punishment that is available.”

Individual Liability

Mr. Panuccio also emphasized DOJ’s continued enforcement efforts against individual defendants. Specifically, Mr. Panuccio stated, “[w]e want to create incentives for companies to help us identify the individuals responsible for wrongdoing, because we remain steadfast in our resolve to hold such individuals accountable.”

In recent months, the United States has secured several settlements with individuals for alleged wrongdoing under the FCA. For example, in April 2018, the District of Connecticut reached a $650,000 settlement with World Health Clinicians, Inc.; its CEO; and a physician for alleged violations of federal and state False Claims Acts by billing Medicare for physical therapy services when massage therapy was provided to patients.[5] In May 2018, three physicians separately agreed to pay a total of $700,000 to settle FCA allegations that they received improper payments for providing referrals to a drug-testing laboratory in violation of the Stark Law and the Anti-Kickback Statute (AKS).[6] And in July 2018, a psychologist in Connecticut agreed to a $126,000 settlement for allegedly billing for Medicaid services that were not provided.[7] This settlement is part of DOJ’s larger effort to investigate behavioral health providers. 

These recent settlements demonstrate DOJ’s continued emphasis on holding individuals accountable for FCA violations. 

Value of Cooperation

Mr. Panuccio’s speech also emphasized the value of cooperation for companies facing FCA investigations. He reaffirmed that DOJ will continue to “recognize genuine cooperation of corporate entities accused of wrongdoing in both civil and criminal matters.” He highlighted the tremendous enforcement discretion” DOJ has with respect to structuring settlements but reiterated that a favorable settlement will depend on the “nature of the cooperation,” including assistance in pursing individual wrongdoers. While this is nothing new for qui tam defendants, the value of cooperation and civility during the investigation and settlement discussion cannot be overstated.


In addition to cooperation, Mr. Panuccio emphasized the value of compliance and DOJ’s efforts to reward companies that incorporate compliance programs into their “corporate culture.” When something goes wrong in an organization, “the greatest consideration should be given to those companies” that have integrated and robust compliance programs, Mr. Panuccio stated. This, too, is not a surprise but serves as an important reminder that health care providers and companies can and should preemptively prepare for future enforcement activity by ensuring that an effective compliance program is not only in place on paper, but actually followed and monitored by executive leadership and the board/oversight bodies.

Practice Note: As DOJ’s leadership continues to emphasize the enforcement priorities outlined in the Sessions, Granston and Brand memoranda, we are closely monitoring the impact of this guidance in our cases. Particularly in light of the Granston Memorandum, lawyers representing FCA defendants and investigation targets should question frivolous qui tams and advocate for DOJ to dismiss such cases. Likewise, in cases where multiple agencies are “piling on” to a target, lawyers should encourage prosecutors to heed the new policy announced by Mr. Panuccio that encourages inter-agency cooperation. Finally, where relators rely on alleged failure to comply with agency guidance, the principles of the Sessions and Brand memoranda should be utilized at the outset of an investigation to narrow the scope of claims on which the United States may intervene—or perhaps lead to a dismissal of the qui tam altogether.

[1] See Press Release, US Dep’t of Justice, Acting Associate Attorney General Jesse Panuccio Delivers Remarks at the American Bar Association’s 12th National Institute on the Civil False Claims Act and Qui Tam Enforcement (June 14, 2018),

[2] The Granston Memorandum outlines a total of seven factors to be considered by prosecutors: (1) curbing meritless qui tams, “either because the legal theory is inherently defective, or the relator’s factual allegations are frivolous”; (2) preventing parasitic or opportunistic qui tam actions, where qui tam cases duplicate pre-existing government investigations and “add no useful information”; (3) preventing interference with agency policies and programs; (4) “avoid[ing] the risk of unfavorable precedent”; (5) safeguarding classified information and national security interests; (6) preserving government resources; and (7) addressing egregious “procedural errors.”

[3] See Press Release, US Dep’t of Justice, Attorney General Jeff Sessions Ends the Department’s Practice of Regulation by Guidance (Nov. 17, 2017),

[4] Id.

[5] See Press Release, US Dep’t of Justice, Norwalk Medical Practice, CEO and Physician to Pay $650,830 to Settle False Claims Act Allegations (Apr. 10, 2018),

[6] See Press Release, US Dep’t of Justice, Three Physicians Agree to Pay Total of $700,000 to Settle Alleged False Claims Act Violations Arising from Improper Financial Relationship with Drug Testing Laboratory (May 7, 2018),

[7] See Press Release, US Dep’t of Justice, Waterford Psychologist Pays $126,760 to Settle Allegations under the false Claims Act (July 3, 2018),

Continued Uptick in State and Federal Efforts to Combat the Opioid Crisis

Following up on our initial coverage in the Q1 Quarterly Roundup, we continue to track increased enforcement efforts at the state and federal level to combat the opioid crisis. At the federal level, DOJ made clear through a series of speeches that it would use the FCA as one of the tools to reach all levels of the opioid distribution chain.[1] The government also filed a statement of interest in the closely watched multi-district litigation currently pending in the US District Court for the Northern District of Ohio (17-MD-2804) and is currently participating in settlement discussions between the parties.

Continuing the trend, the United States and six states joined whistleblower litigation in May 2018 against Insys Therapeutics. The litigation alleges that Insys violated the FCA and AKS in connection with its marketing of Subsys, a sub-lingual spray form of the powerful opioid fentanyl. Subsys is approved only for the treatment of persistent breakthrough pain in adult cancer patients who are already receiving, and are tolerant to, around-the-clock opioid therapy. The lawsuit alleges that Insys knowingly offered and paid kickbacks to induce physicians and nurse practitioners to prescribe the drug, and that it knowingly caused Medicare and other federal health care programs to pay for non-covered uses. Insys allegedly disguised these kickbacks using a sham speaker program, by providing jobs for prescribers’ friends and relatives, and by furnishing prescribers with visits to strip clubs, lavish meals and entertainment. Many of the physicians allegedly receiving these benefits were not even oncologists.

DOJ’s decision to join the Insys lawsuit aligns with several trends identified in our Q1 Quarterly Roundup. First, it highlights the government’s interest in using the FCA as part of its efforts to combat the opioid epidemic, as articulated by Attorney General Sessions in March 2018. Second, it affirms the government’s commitment to holding responsible the individuals directly accountable—the civil lawsuit against Insys is on hold pending resolution of five criminal cases against 15 former Insys officials for their involvement in the alleged scheme. Third, the involvement of numerous states in the lawsuit demonstrates state governments’ interest in litigating against opioid manufacturers. Finally, the government’s complaint captures the post-Escobar attention to materiality, explicitly asserting that alleged false certifications in claims for reimbursement were material to Medicare’s payment of those claims. 

Elsewhere, state and local governments have brought litigation against various entities in the opioid supply chain.  In May 2018, 10 Chicago suburbs filed suit against nearly 30 entities, including pharmaceutical companies (among them, Insys) and their subsidiaries, drug distribution companies and three physicians who allegedly ran an opioid “pill mill.” See Village of Melrose Park, et al. v. Purdue Pharma L.P., et al., Case No. 2018-CH-06601 (Cook Cty. Cir. Ct.). The plaintiffs filed their suit in the Chancery Division of Cook County Circuit Court and have made it clear that they intend to maintain local control over the case, rather than join the multi-district litigation pending in the Northern District of Ohio, also discussed in our Q1 Quarterly Roundup. Lawyers for the plaintiffs have stated that they intend to file many more such lawsuits in the coming weeks.

Practice Note: Over the past year, DOJ has clearly indicated that it will be an active participant in enforcement efforts against opioid manufacturers and other individuals and entities in the opioid distribution system. While DOJ dipped its toes in the water with the Ohio multi-district litigation—filing a statement of interest and taking part in settlement discussions—it is fully involved in the litigation against Insys. How DOJ handles its intervention in the Insys case will serve as a bellwether for future cases as the United States increasingly devotes resources to combating the national opioid crisis.

[1] See, e.g., Press Release, US Dep’t of Justice, Deputy Associate Attorney General Stephen Cox Delivers Remarks at the Federal Bar Association Qui Tam Conference (Feb. 28, 2018),

Recent Court Guidance on the Use of Statistical Sampling in FCA Cases

Affirming a trend that has been evolving for the past several years, courts continue to demonstrate skepticism towards the use of statistical sampling to establish liability under the FCA. In cases where a relator alleges that a defendant induced a third party to submit false claims, some courts have allowed the relator to prove false claims by providing “statistical evidence to strengthen the inference of fraud beyond possibility without necessarily providing details as to each false claim.” United States ex rel. Duxbury v. Ortho Biotech Products, 579 F.3d 13 (1st Cir. 2009).  However, two recent decisions have shown that some courts are reluctant to extend this relaxed standard of proof to situations where a relator alleges that the defendant itself submitted false claims to the government. 

In United States ex rel. Conroy v. Select Medical Corporation, et al., No. 3:12-cv-00051-RLY-DML (S.D. In. April 2, 2018), relators alleged that a long-term acute care hospital defrauded Medicare by submitting claims for medically unnecessary lengths of stay. The relators also named the hospital’s parent corporation in the suit, and sought discovery involving statistical sampling to show that the practice was the result of a company-wide policy. However, the magistrate judge in the case denied the relators’ discovery request. The magistrate noted that the complaint failed to allege any facts concerning decision making at other hospitals owned by the parent corporation. Moreover, to prevail, the relators would have to prove fraud “on a claim-by-claim basis based on the patient’s actual medical condition and actual medical care”—that is, mere statistical evidence suggesting fraud would not suffice. The relators have appealed the magistrate judge’s ruling, and DOJ has submitted a statement of interest in support of the relators’ objections.

In the US District Court for the District of Massachusetts, a judge recently dismissed a complaint that relied on statistical evidence to allege that the defendant hospital submitted fraudulent claims to the government. United States ex rel. Wollman v. The General Hospital Corporation et al., No. 15-cv-11890-ADB (D. Mass March 30, 2018). The court stated that the relator’s complaint provided ”notable” details about the allegations that Medicare’s overlapping surgery rules were violated, including the date, surgeon, start time, location, duration, and type of surgical procedure. However, citing her lack of access to hospital billing records and claim information, the relator attempted to use statistical evidence to show that the hospital must have submitted fraudulent claims to Medicare, such as the percentage of knee replacements Medicare paid for in certain years and that some of the patients who had overlapping surgeries were likely Medicare beneficiaries.  . The court concluded that this was insufficient to satisfy Federal Rule of Civil Procedure 9(b)’s particularity requirement, as a relator must identify specific false claims that the hospital submitted to the government in order to survive a motion to dismiss. The judge dismissed the complaint without prejudice.

Practice Note: In cases that use statistical sampling to prove FCA liability, qui tam defendants should immediately evaluate the viability of a motion to dismiss for failure to meet the pleading particularity requirements of Federal Rule of Civil Procedure 9(b). Similarly, if data is sought during discovery to support a statistical basis for FCA liability, defendants should vigorously push back and encourage courts to deny such requests, as the court did in Conroy.

Increased State and Federal Scrutiny of Co-Location Arrangements

We have recently experienced an increase in clients seeking advice in structuring arrangements involving co-location (or proposed sharing of services/equipment) between multiple health care entities, and have helped them structure these arrangements. The growing prevalence of these types of arrangements has resulted in a corresponding uptick in state and federal scrutiny of such arrangements.

In particular, the Centers for Medicare and Medicaid Services (CMS) has increased its review of co-location arrangements in connection with reviews of provider-based attestations, enrollment records and hospital certification surveys. Further CMS guidance specific to co-location is expected soon, and is anticipated to reduce to writing the more informal guidance provided up to this point. We have also noticed that certain states, such as California, have been more closely reviewing licensure and Medicaid enrollment materials to identify circumstances where two entities may be utilizing the same space. In some cases, regulators are taking enforcement action against entities with co-location arrangements that do not meet applicable criteria, including requesting overpayment refunds and threatening termination of Medicare enrollment. 

The government’s increased scrutiny of these types of arrangements—and the significant adverse consequences that could result from non-compliance—should be taken into consideration when arrangements involve more than one health care entity and there is actual (or potential) sharing of space, staff or equipment. The specific facts and circumstances of any such arrangement should be reviewed for compliance with relevant state and federal
co-location requirements, which are often complex and may be conflicting. 

Practice Note: It is important to ensure that co-location arrangements are proactively reviewed under all applicable rules specific to the provider types at issue. For example, co-location arrangements involving hospitals require review under Medicare rules for enrollment, provider-based rule compliance and Conditions of Participation. If the arrangements involve entities excluded from Prospective Payment Systems (e.g., long-term care hospitals or psychiatric units/hospitals), the arrangements also require additional review under Medicare “hospital-within-a-hospital” or “satellite” rules. Other health care entities, such as Independent Diagnostic Testing Facilities and Durable Medical Equipment Suppliers, are generally prohibited from sharing space with any other Medicare-enrolled entity.

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.

© McDermott Will & Emery | Attorney Advertising

Written by:

McDermott Will & Emery

McDermott Will & Emery 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 (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.