HHS Targets PBMs But May Exceed Its Legal Authority In Proposed Rule Eliminating AKS Protection For Drug Rebates

Husch Blackwell LLP

The Trump Administration’s latest effort to limit the power of pharmacy benefit managers (“PBMs”) is marred by economic uncertainty and looming legal scrutiny.  The Office of Inspector General (“OIG”) within the Department of Health and Human Services (“HHS”) recently released a proposed rule (“proposed rule”) removing safe harbor protection under the Anti-Kickback Statute (“AKS”) for prescription drug rebates (“drug rebates) paid by a manufacturer to Medicare Part D plan sponsors and Medicaid managed care organizations (“MCOs”) or their PBMs.  The rule also creates new safe harbor protections for point-of-sale reductions in price and certain PBM services fees.[1]   The long-awaited proposed rule follows months of anticipation after the Trump Administration released its May 2018 Blueprint to reduce prescription drug costs.[2]

PBMs in Brief

PBMs, on behalf of health plans, employers, and other entities, negotiate and contract with drug manufacturers to obtain rebates on prescription drugs dispensed to health plan members.  By aggregating their collective scale and purchasing power of all health plan or employer group clients, PBMs can negotiate better deals with the manufacturer than any one plan or group operating independently.  Rebates are typically negotiated on brand-name drugs that compete with therapeutically-similar brands and generics. These retroactive rebates (after point-of-sale) are based on a multitude of factors, including a drug’s placement in a plan formulary designed by the PBM, and the PBM’s power to increase a manufacturer’s market share for specific drugs by inclusion on a formulary.  A manufacturer may provide a greater rebate if its product is included in a “preferred” position on the PBM formulary.

A PBM and its health plan client contractually agree on the amount of manufacturer rebates obtained by the PBM that the PBM will “pass through” to the client.  Oftentimes, the full amount of the rebate will be passed through to the client, while other times, the PBM may retain a portion in lieu of other administrative fees.  The amount of the rebate that is passed through to the client can obviously result in cost-savings for the client that it would not otherwise have obtained if it had been forced to contract directly with the manufacturer. Likewise, rebates passed on to the health plan can also act to keep member premiums lower (since the cost to the plan for the drug is lower). On the other hand, rebates retained by the PBM can lead to lower administrative fees charged to the client by the PBM for its services.

The Issue

The Trump Administration contends that the current rebate system incentivizes PBMs to cover higher-priced drugs on their formulary in order to receive the largest rebates.  The government is also concerned that manufacturers reward larger rebates to PBMs to keep cheaper competitors off the formulary.[3]  Thus, the rebate arrangements ensure maintenance of high drug list prices, creating a barrier to lowering overall costs for the government (and taxpayers).  PBMs, meanwhile, maintain that drug manufacturers control the list price, and that PBM’s bargaining power reduces premiums and out-of-pocket costs for beneficiaries.[4]

Drug Rebates – How We Got Here

Antitrust litigation in the 1990s involving pharmacies, wholesalers, and big drug manufacturers resulted in the current retroactive drug rebate system.  At that time, the majority of manufacturers offered upfront discounts on drugs for greater volume and formulary placement, or rebates not conditioned on volume.  Essentially, pharmacies alleged that drug manufacturers and wholesalers conspired among themselves, in violation of federal antitrust laws, to deny pharmacies discounts off the list price of brand-name drugs that the manufacturers sold to preferred purchasers, such as MCOs.[5]  Ultimately, most parties settled, and to avoid antitrust scrutiny, any purchaser able to demonstrate an ability to affect market share would be entitled to manufacturer discounts.[6]

As opposed to an upfront discount to a purchaser, the retroactive rebate allows a purchaser to establish an ability to control market share, and on that basis, receive a rebate from the manufacturer.  PBMs, of course, possess such ability.  These rebates are permissible under the regulatory discount safe harbor to the AKS,[7] which prohibits payment of remuneration in exchange for referrals of patients covered under federal healthcare programs, such as Medicare and Medicaid.  Exercising its agency authority, HHS created a discount safe harbor specifically to protect from AKS liability the prescription drug discounts or rebates that manufacturers pay to plan sponsors under Medicare Part D and Medicaid MCOs, whether negotiated by the plan or by a PBM, or paid through a PBM to the plan or Medicaid MCO.

Meanwhile, the broad AKS statutory discount exception (enacted by Congress more than a decade before HHS promulgated the discount safe harbor in 1991) could also potentially shield these rebates from AKS liability.  Congress enacted the discount exception for “a discount or other reduction in price obtained by a provider of services or other entity under [Medicare or Medicaid] if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under [Medicare or Medicaid].”[8]  The proposed rule, though, boldly asserts that payments from a manufacturer to a PBM to buy formulary position do not qualify for this exception.[9]

The Proposed Rule

Drug price reductions from manufacturers to plan sponsors under Medicare D and Medicaid MCOs or their PBMs, i.e., drug rebates, would no longer be protected from AKS liability under either the regulatory discount safe harbor or statutory discount exception to the AKS.  HHS declares that rebates paid by drug manufacturers to or through PBMs to buy formulary position are not reductions in price and do not qualify under the AKS statutory discount exception.[10]  Such declaration eviscerates HHS’ longstanding encouragement and holding that drug rebates reduce costs of the Medicare Part D program and are permissible non-abusive arrangements.[11]  The proposed rule also amends the definition of “discount” in the discount safe harbor to exclude a “reduction price or other remuneration” from a manufacturer to a Medicare Part D plan sponsor, a Medicaid MCO, or a PBM acting under contract with either.[12]

Meanwhile, the proposed rule would create a new safe harbor for discounts offered by manufacturers to Part D and Medicaid managed care patients at point of sale, under the following conditions: (i) price reduction is set in advance with the purchaser (i.e., plan sponsor under Medicare Part D, the Medicaid MCO, or the PBM); (ii) price reduction does not involve a rebate unless the full value of the price reduction is provided to the dispensing pharmacy through a chargeback (i.e., payment from the manufacturer to the pharmacy that is at least equal to the price in place between manufacturer and purchaser); and (iii) price reduction is completely passed through to consumers at the point of sale.[13]

Lastly, the proposed rule would create another safe harbor for fixed fee service arrangements between manufacturers and PBMs.[14]  HHS, though, cautions that PBM service fees tied to a drug’s list price, based on sales volume, or exceeding fair market value “could be a disguised kickback” and not protected by the proposed safe harbor.[15]

OIG Overreach – Does HHS Exceed Its Legal Authority in Eliminating AKS Protection for Drug Rebates?

It is questionable whether HHS has legal authority to eliminate rebate protection in light of Congress’ intent and enactment of the broad AKS statutory discount exception.[16]  HHS maintains that drug rebates were only protected under the discount safe harbor, and thus, HHS can eliminate rebates from that safe harbor pursuant to its administrative authority.[17]  Accordingly, stakeholder challenges to HHS authority, lodged either during the comments phase of rulemaking or in response to enforcement action, would posit:  1) While Congress authorized HHS to promulgate various safe harbors to the AKS to permit specific non-abusive arrangements, removal of drug rebates from the discount safe harbor contradicts the statutory discount exception, thus invalidating any final rule; and 2) HHS’ proclamation that drug rebates no longer qualify under the statutory discount exception does not make it so, as rebates can qualify for protection under either the discount safe harbor or the discount exception, and courts will examine each provision separately.

To the first argument, HHS is free to amend safe harbors to further Congress’ intent that such regulations be evolving rules reflecting changing business practices and technologies in the industry.  However, HHS’ removal of drug rebates from the discount safe harbor effectively defines drug rebates as impermissible arrangements.  Such a conclusion conflicts with the statutory discount exception, enacted by Congress, and therefore, may render a final rule invalid and unenforceable.  Indeed, the Administrative Procedure Act authorizes courts to set aside agency actions that are “not in accordance with the law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C); see also Oregon v. Ashcroft, 368 F.3d 1118, 1129 (9th Cir. 2004) (holding that agency determinations that squarely conflict with governing statutes are not entitled to deference and must be set aside).  In other words, if a court deems drug rebates are the kind Congress intended to include in the statutory discount exception, only Congress, not HHS, can eliminate protection for rebates from AKS liability.

To the second argument, by eliminating drug rebates from the discount safe harbor, HHS seemingly anticipates stakeholders seeking protection for rebates under the statutory discount exception.  The proposed rule attempts to stifle those claims by stating rebates do not fall under the statutory exception.[18]  Further, HHS redefines “discount” in the safe harbor to exclude rebates from manufacturers to plan sponsors or PBMs.  However, HHS’ definition of “discount” in the safe harbor does not necessarily alter the definition of “discount” in the statutory exception.  Indeed, at least one court, in an issue of first impression, examined the interpretation and application of the statutory discount exception.[19]  There, the Shaw court found that interpreting an arrangement under the discount safe harbor is separate and apart from an interpretation under the statutory discount exception.[20]  Further, while courts may look to the agency’s implementation of the agency’s own discount safe harbor, “[t]his does not mean that what the OIG says in its promulgated regulations about discounts is controlling on how the word ‘discount’ is to be interpreted and applied in the statutory ‘discount exception.’”  Interpretation of the statutory discount exception “will not be limited by the definitions imposed by the safe-harbor provisions.”[21]  Thus, stakeholders may have a viable claim that the statutory discount exception does in fact protect drug rebates from AKS liability, irrespective of HHS’ “discount” definition with respect to the discount safe harbor.[22]

Any stakeholder challenge would come on the heels of HHS’ recent defeat in U.S. District Court for the District of Columbia, which found HHS exceeded its legal authority, acting outside the scope of its statutory mandate, by substantially reducing the amount Medicare pays for 340B-acquired medications.[23]  Specifically, the court found HHS did more than just make “adjustments” to Part B reimbursement rates, as authorized by Congress.  Rather, HHS’ nearly thirty percent reduction in reimbursement for 340B drugs “fundamentally altered the statutory scheme established by Congress.”[24]

The Uncertain Impact

If finalized, the proposed rule would disrupt current arrangements among manufacturers, PBMs, and pharmacies.  Arrangements would need to comply with HHS’ new, unsettled safe harbors, or PBMs could be vulnerable to AKS scrutiny and enforcement actions.  While a final rule would only affect federal healthcare programs, HHS Secretary Alex Azar anticipated that commercial plans would follow suit and encouraged states to ban rebates for private plans consistent with the proposed rule.  Additionally, the effective date of Jan. 1, 2020 pressures plans and PBMs to reconsider contracts for the calendar year 2020 for Part D, and, if necessary, consider alternative arrangements and point-of-sale discounts to comply with the rule.

Ultimately, there is no guarantee that implementation of a final rule and eliminating protection for drug rebates would reduce drug prices, which is the goal of any action by the Administration.  Manufacturers are still in charge of list drug prices.  HHS fails to cite in the proposed rule any incentive for manufacturers to lower list prices, particularly if manufacturers can replace current rebates with another discount directly with plan sponsors, even if those discounts must be reflected at the point of sale.  Notably, HHS utilized the CMS actuary and two independent actuarial firms to determine the economic impact of the proposed rule.  Actuarial scenarios with eliminated rebates under the proposed rule varied widely, some resulting in consumer savings, while others increased beneficiary and federal spending premiums and cost sharing to the tune of approximately $140 billion.[25]  As with any proposed rule, stakeholder response will be imperative.  The deadline for submitting comments is April 8, 2019.

Given the far-reaching effects of any potential action arising out of the Trump Administration’s Blueprint, Husch Blackwell attorneys continue to monitor trends, proposals, and rules impacting all levels of the drug supply chain, including PBMs.  For more information on the implication of HHS’ proposed rule eliminating AKS protection for drug rebates, please contact a member of the Husch Blackwell Health Law Team.

[1]  Fraud and Abuse; Removal of Safe Harbor Protection for Rebates Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection for Certain Point-of-Sale Reductions in Price on Prescription Pharmaceuticals and Certain Pharmacy Benefit Manager Service Fees, 84 Fed. Reg. 2340 (Feb. 6, 2019).

[2]  U.S. Dep’t of Health & Human Servs., American Patients First: The Trump Administration Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs (May 2018), https://www.hhs.gov/sites/default/files/AmericanPatientsFirst.pdf.

[3]  84 F.R. at 2341.

[4]  Express Scripts, one of the nation’s largest PBMs, released a 2018 drug trend report reflecting $45 billion in client savings due, in part, to drug rebates.  Express Scripts Drug Trend Report, http://lab.express-scripts.com/lab/drug-trend-report.  Moreover, Express Scripts rejects the government’s argument and favors lower list prices from manufacturers over higher rebates.  See Express Scripts Letter to Secretary Azar, Re: RIN 0991–ZA49; HHS Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs (July 16, 2018), available at lab.express-scripts.com/about/~/media/fb9e3eee000449a1a6dcacb227726781.ashx.

[5]  See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 602–03 (7th Cir. 1997).

[6]  See In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1997 WL 337251, at *1 (N.D. Ill. June 17, 1997)

[7]  42 C.F.R. § 1001.952(h); 42. U.S.C. § 1320a-7b(b)(3)(A).

[8]   42 U.S.C. § 1320a-7b(b)(3)

[9]   84 F.R. at 2340

[10]  Id.

[11]  HHS Office of Inspector General, Higher Rebates for Brand-Name Drugs Result in Lower Costs for Medicaid Compared to Medicare Part D (August 2011), https://oig.hhs.gov/oei/reports/oei-03-10-00320.pdf

[12]  84 F.R. at 2363

[13]  Id.

[14]  Id.

[15]  Id. at 2349.

[16]  “The bill would specifically exclude the practice of discounting or other reductions in price from the range of financial transactions to be considered illegal under [M]edicare and [M]edicaid, but only if such discounts are properly disclosed and reflected in the cost for which reimbursement could be claimed. The committee included this provision to ensure that the practice of discounting the normal course of business transactions would not be deemed illegal. In fact, the committee would encourage providers to seek discounts as a good business practice which results in savings to [M]edicare and [M]edicaid program costs.” H.R. Rep. No. 95-393(II), 95th Cong., 1st Sess., 53 (1977).

[17]  President Trump’s Plan to Reduce Prescription Drug Costs for Patients: Hearing Before the S. Health Comm., 115th Cong. (June 12, 2018) (testimony of Alex Azar, HHS Secretary), available at https://www.c-span.org/video/?446791-1/secretary-azar-testifies-prescription-drug-pricing-plan (Secretary Azar, responding to Sen. Lamar Alexander’s (R-TN) question whether HHS has authority to eliminate rebates or that Congress needs to act, “We do believe we have the regulatory authority. Rebates are allowed under an exception to the Anti-kickback statute. That’s an exception that we believe by regulation we could modify but of course if Congress were to take action that would obviously shore up our authority.”).

[18]  64 Fed. Reg. 63518, 63528 (Nov. 19, 1999) (restated at 84 F.R. at 2346) (OIG maintains that “the regulatory safe harbor both incorporates and enlarges upon the statutory exception”).

[19]  United States v. Shaw, 106 F.Supp.2d 103 (D. Mass. 2000).

[20]  See also Klaczak v. Consol. Med. Transp., 458 F. Supp. 2d 622, 686 (N.D. Ill. 2006) (noting as separate provisions the discount safe harbor and statutory discount exception; “[t]he various Medicare ‘safe harbors’ define a subset of clearly legal conduct, but that does not mean that anything outside of the ‘safe harbors’ violates the AKS.”)

[21]  Shaw, 106 F.Supp.2d at 113.

[22]  Stakeholders could also challenge HHS’s authority to eliminate drug rebates under the Medicare Part D noninterference clause, which expressly prohibits HHS from interfering with negotiations between manufacturers and sponsors.  See 42 U.S.C. § 1395w-111(i); see also 79 Fed. Reg. 29844, 29873-74 (May 23, 2014).

[23]  Am. Hosp. Ass’n v. Azar, 348 F. Supp. 3d 62, 2018 WL 6807219 at *10, *12 (D.D.C. 2018).

[24]  Id. at *12.

[25]  84 F.R. at 2356.

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.

© Husch Blackwell LLP | Attorney Advertising

Written by:

Husch Blackwell LLP

Husch Blackwell LLP 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.