Insurance Recovery Law - August 2015

by Manatt, Phelps & Phillips, LLP
Contact

In This Issue:

  • Insured's Notice to Broker Satisfied Policy Requirements, Illinois Court Rules
  • Pennsylvania Supreme Court: Insured May Settle Without Consent and Recover From Insurer
  • Split Decision in Illinois Finds Coverage for Officials, but Not for City
  • Insurer's Suit Tossed Based on Failure to Conduct Policy-Mandated ADR

Insured's Notice to Broker Satisfied Policy Requirements, Illinois Court Rules

Why it matters: An insured's notice to its broker satisfied the policy's notice requirements, an Illinois appellate panel recently concluded—even though the broker didn't pass along the notification for more than two years. A salesperson was involved in a car accident while driving to work and was sued by the other driver. The employer provided notice to its insurance broker of the car accident, but the insurer didn't receive notice until several months later, after the lawsuit was filed. The insurer responded with a declaratory judgment action against the insured, the employee, and the driver of the other vehicle, arguing that it owed no duty to defend because the insured did not provide timely notice of the claim. The insurance broker was not an agent of the insurer for purposes of providing notice, the carrier told the court. But based on the facts of the case, the court disagreed. The insured's normal course of dealings was to contact its broker first, with the broker listed as an "agent" on the policy documents and payment schedules. Under the circumstances, the insured provided proper and timely notice of the claim, the appellate panel ruled, affirming judgment for the insured.

Detailed discussion: On August 17, 2005, Michael Molda was driving to a construction site as part of his job with Metrolift when he got into a car accident with Nola Wilson. Molda—who was not offered a company vehicle to drive and was expected to use his own car—was driving his mother's car at the time. After the accident, he notified State Farm, which insured the vehicle, as well as Metrolift.

When Metrolift learned of the accident, a company executive reached out to the insurance broker, Associated Specialty Insurance, which had helped Metrolift purchase its policy with First Chicago Insurance Company. The executive and the broker decided to wait to notify First Chicago.

Wilson later filed suit against Molda, later amending her complaint to add Metrolift as a defendant. Molda was served with the lawsuit in October 2007. The broker notified First Chicago of the lawsuit in March 2008.

First Chicago then filed a declaratory judgment action in Illinois state court, claiming it owed no duty to defend either Molda or Metrolift. Molda's vehicle was not covered under its policy, First Chicago argued, and Metrolift failed to provide timely notice of the accident as required by the policy.

The trial court judge granted summary judgment in favor of First Chicago, but a panel of the appellate court reversed. On remand, the trial court conducted a bench trial and ruled in favor of Metrolift. The insurer appealed and an appellate court affirmed.

Molda was an insured under the policy, the court held, and his vehicle was a covered auto under the policy. Metrolift purchased coverage for different types of automobiles, including "Category 9," described as "Nonowned Autos Only." The provision provided coverage for "Only those autos you do not own, lease, hire or borrow which are used in connection with your business. This includes autos owned by your employees or members of their households but only while used in your business or your personal affairs."

The panel rejected First Chicago's contention that the provision required Molda (and not his mother) to own the vehicle. "First Chicago's interpretation of the definition of nonowned autos is overly restrictive," the court wrote. Applying "the plain language" of the definition of nonowned auto, Molda's vehicle was not owned, leased, hired or borrowed by Metrolift, and if used in connection with Metrolift's business, it would be a covered auto.

Molda testified at trial that he was on his way to a construction site at the time of the accident, and Metrolift was aware that he was driving his own vehicle. Given the requirement that the vehicle be "used in connection with your business," a broad and vague term, "Molda's vehicle was properly considered to be a 'nonowned auto' under the First Chicago policy," the court opined.

Molda also qualified for coverage under a provision for "[a]nyone liable for the conduct of an 'insured,'" the court found. "At the time of the accident Metrolift had potential liability under the doctrine of respondeat superior, and, in fact, was included as a defendant in Wilson's case on that basis."

Whether or not Associated Specialty was First Chicago's agent for purposes of accepting notice was the next question the court addressed. Although an insurance broker is generally considered to be the agent of the insured, there are situations where an insurance broker can act as the agent of the insurance company or even both, the court opined.

And even if the broker does not have actual authority to act as the carrier's agent for purposes of notice, it may have apparent authority, the court further held. Apparent authority can be established through the course of dealings between the broker and the insurer. In the case at bar, there was evidence presented at trial that First Chicago included Associated Specialty's name, address, and telephone number on its declarations page as the producer.

"It did not provide any other contact information, nor was any individual or business other than Metrolift named anywhere within the policy," the panel commented. "If a claim was to be made, there was no reference to a phone number or person in his representative capacity to contact other than 'our authorized representative.' Additionally, in payment schedules admitted into evidence, Associated Specialty's information is listed under the underlined heading 'Agent' and an 'Agent Number' is provided under Associated Specialty's information."

Further, e-mails between the Metrolift executive and Associated Specialty supported the contention that Metrolift notified Associated Specialty almost immediately after learning about the accident. In addition, a First Chicago executive testified the insurer encouraged policyholders to report claims to their broker if they felt more comfortable doing so.

In light of these facts, "[w]e cannot find that it was against the manifest weight of the evidence for the trial court to conclude that this evidence gave rise to apparent authority for the purpose of accepting notice," the court concluded.

Even though First Chicago learned of the accident approximately 31 months after it occurred, notice was timely and did not violate the policy requirements, the panel added. "Associated was First Chicago's apparent agent for purposes of accepting notice of the loss," the court said. "Associated was notified of the loss almost immediately, and First Chicago does not argue that the notice provided to Associated was unreasonable."

In addition, while prejudice is not dispositive, the court noted that First Chicago did not establish that it suffered any prejudice. First Chicago did not make a serious attempt to investigate the matter. In particular, it failed to obtain the entire police report, did not interview either Wilson or Molda, and did not even attempt to reach State Farm about the results of its investigation. Accordingly, the court determined that the trial court's finding that notice was timely was not against the manifest weight of the evidence.

To read the opinion in First Chicago Insurance Company v. Molda, click here.

Pennsylvania Supreme Court: Insured May Settle Without Consent and Recover From Insurer

Why it matters: An insured may settle a claim without the insurer's consent where the insurer is defending the claim subject to a reservation of rights, and may recover the settlement amount from the insurer, provided that coverage is found to exist and the deal is fair, reasonable, and was made without collusion, the Supreme Court of Pennsylvania recently held. This case dates back to 1994, when a group of plaintiffs filed a class action against two nuclear facilities, alleging that they suffered bodily injury and property damage because of emissions from the facilities. The liability insurer of the facilities defended the suit under a reservation of rights, but refused to consent to any settlement offers. Nevertheless, the policyholders settled the lawsuit for $80 million, and requested reimbursement from the insurer. Invoking a provision prohibiting the insured from assuming obligations without the insurer's consent, the carrier refused to cover the settlement. The trial court ordered the insurer to pay for the settlement, but an appellate court reversed. The state's highest court reversed again, concluding that "if an insurer breaches its duty to settle while defending subject to a reservation of rights and the insured then accepts a reasonable settlement offer [within the policy limits], the insured need only demonstrate that the insurer breached its duty by failing to consent to a settlement that is fair [and] reasonable." This standard allows policyholders to be reimbursed for otherwise covered settlements, even if the insurer does not consent, without having to establish the insurer acted in bad faith.

Detailed discussion: Babcock & Wilcox Company and Atlantic Richfield Company (collectively, BW/ARCO) were named in a federal class action lawsuit brought by plaintiffs claiming to have suffered bodily injury and property damage caused by emissions from nuclear energy facilities operated by BW/ARCO. Insurers American Nuclear Insurers and Mutual Atomic Energy Liability Underwriters (collectively, ANI) agreed to defend BW/ARCO under a reservation of rights.

The class grew to more than 500 plaintiffs, and in 1998 the court conducted a jury trial of eight test cases. Jurors awarded a verdict totaling in excess of $36 million, or about $4.5 million per plaintiff. Due to evidentiary issues, however, the court ordered a new trial.

Concurrently, ANI filed a declaratory judgment action in state court seeking an order that it owed no duty to defend. The trial court held that the insureds were entitled to separate counsel, which was affirmed on appeal.

Before a second trial could take place in the underlying class action, BW/ARCO settled the case. ANI refused to consent to any settlement offers, believing that the case had a strong likelihood of a defense verdict, given the federal court's grant of a new trial on evidentiary issues and a lack of medical support for the plaintiffs' claims. Despite ANI's refusal to consent, BW/ARCO settled the case for $80 million, which was substantially less than the policy limits of $320 million.

BW/ARCO then sought reimbursement from ANI in state court. ANI refused to cover the settlement, citing a standard consent to settlement clause requiring the policyholder to cooperate with the insurer and obtain consent prior to reaching a settlement:

"The insured shall cooperate with the companies, and upon the companies' request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, make any payments, assume any obligations or incur any expense."

Pointing to Cowden v. Aetna Cas. Co., a 1957 case from the Pennsylvania Supreme Court, ANI argued that state law requires an insurer to pay for the settlement only if it acted in bad faith in refusing to settle and that the policyholder had not established that ANI acted in bad faith. BW/ARCO countered that ANI should indemnify them because the claim otherwise was covered and the settlement was fair, reasonable, and entered in good faith, pointing to a line of cases originating with United Services Auto. Assoc. v. Morris from the Arizona Supreme Court. The trial court agreed with BW/ARCO, applying the Morris standard and ordering ANI to indemnify BW/ARCO in light of the jury's determination that the settlement was "fair and reasonable."

ANI appealed. Emphasizing that insurance policies are contracts at heart, the intermediate appellate court reversed, opining that the language of the policy trumped any public policy arguments. The appellate panel chose to adopt a different approach from a Florida federal court decision in Taylor v. Safeco Insurance Co. The so-called "Taylor/Insured's Choice Test" requires a policyholder to accept the insurer's defense and full control of the litigation (with protection in the form of a bad faith action), or decline it and shoulder the financial responsibility itself.

BW/ARCO then appealed. The Pennsylvania Supreme Court accepted the case to address the question: "Does a policyholder forfeit its right to insurance coverage by settling an underlying and covered claim without its insurer's consent, where the insurer is defending subject to a reservation of rights to disclaim coverage, the settlement is at arm's length, is fair and is reasonable, and the insurer has failed to offer any amounts in settlement?" The court then answered the question in the negative, rejecting the Taylor standard articulated by the appellate panel and adopting a variation on the Morris test.

ANI argued that it acted in good faith in refusing to accept the settlement in the underlying litigation, based on its belief in a strong defense to the case, as well as concern that other plaintiffs would file copycat lawsuits. The insurer also reiterated the importance of respecting the policy's terms requiring consent prior to settlement, arguing that the Cowden standard had worked in Pennsylvania for 60 years. Adopting the Morris standard, ANI cautioned, also would lead to protracted litigation regarding whether a settlement is fair and reasonable.

But the Supreme Court was not persuaded. It reviewed the Morris decision (which has been adopted by other jurisdictions, including Alaska, Indiana, Maine, and Wyoming) and found that other courts have adopted slightly modified versions, such as Iowa and Minnesota. Considering prior case law in Pennsylvania, including Cowden, as well as the line of cases following Morris, "we adopt a variation on the Morris fair and reasonable standard limited to those cases where an insured accepts a settlement offer after an insurer breaches its duty by refusing the fair and reasonable settlement while maintaining its reservation of rights and, thus, subjects an insured to potential responsibility for the judgment in a case where the policy is ultimately deemed to cover the relevant claims," the court wrote. "Like our sister states, we observe that a determination of whether the settlement is fair and reasonable necessarily entails consideration of the terms of the settlement, the strength of the insured's defense against the asserted claims, and whether there is any evidence of fraud or collusion on the part of the insured."

"[I]f an insurer breaches its duty to settle while defending subject to a reservation of rights and the insured accepts a reasonable settlement offer, the insured need only demonstrate that the insurer breached its duty by failing to consent to a settlement that is fair, reasonable, and non-collusive … rather than demonstrating bad faith by the insurer, as the damages sought are subject to the policy limits to which the insurer originally contracted," the court concluded. Accordingly, the Supreme Court reversed the appellate panel and reinstated the judgment of the trial court.

To read the opinion in The Babcock & Wilcox Company v. American Nuclear Insurers, click here.

Split Decision in Illinois Finds Coverage for Officials, but Not for City

Why it matters: In a decision involving coverage for a lawsuit against a city and two city officials, a federal court in Illinois ordered an insurer to provide defense to the city officials, but held that coverage was not available to the city. The underlying dispute involved a plan to build a baseball stadium that fell through. The team sued the city and two city officials for breach of contract as well as fraud and civil conspiracy. When the city and officials tendered defense of the suit to their insurer, the carrier denied the request and filed a declaratory judgment action. The insurer argued that the policy contained multiple exclusions precluding coverage, including a breach of contract exclusion. The court held that the exclusion applied to allegations against the city, but that other allegations against the city officials fell outside of the exclusion and mandated coverage.

Detailed discussion: Grand Slam Sports & Entertainment (GSSE) operated a minor league baseball team known as the Lake County Fielders. In 2006 the director of economic development for Zion, Illinois, approached the company about developing a stadium in the city. GSSE worked with the director, as well as the mayor, to negotiate the terms of the deal.

The parties reached an agreement to construct a stadium for the Fielders. The City of Zion Council approved the sale of bonds to finance the project and entered into a construction contract in 2011. But progress on the stadium then stalled.

According to the subsequent lawsuit filed by GSSE, the director and the mayor determined that the project was too risky and decided not to pursue the bond sale or build the stadium. However, the defendants kept their decision quiet, despite knowing that it would have negative consequences for GSSE. Instead, they engaged in knowingly false representations and material omissions to conceal that the stadium would not be built, GSSE alleged.

GSSE claimed that it relied upon the officials' misrepresentations in deciding to field a team for the 2011 season, losing approximately $500,000 in revenue. The officials also attacked the reputation of GSSE, the suit alleged, making false public statements about the reasons that the project was delayed. But as to the city, GSSE's lawsuit alleged only breach of contract.

OneBeacon America Insurance Company insured the city and the city officials. OneBeacon denied coverage to all of them, arguing that a breach of contract exclusion precluded coverage for all of the defendants, and that other exclusions applied to the city officials as well.

U.S. District Court Judge Charles P. Kocoras ultimately split the baby. The court first considered the effect of the breach of contract exclusion, which applied to "[a]ny 'claim' arising directly or indirectly out of, or in any way related to liability assumed under any contract or agreement of breach of contract to which the insured is a party or a third-party beneficiary, or any representations made in anticipation of such contract or agreement of any 'claim' against any insured arising directly or indirectly out of, or in any way related to tortious interference with a contract or business relations." However, the exclusion "does not apply to liability the insured would have in the absence of the contract or agreement."

As to the city, "it is clear and free from doubt that the breach of contract claim in the Underlying Complaint would necessarily fall within the Contracts Exclusion so as to preclude coverage of the City of Zion," the court wrote. "The alleged wrongful acts of the City of Zion described in the Underlying Complaint would not exist but for the breach of contract." Notably, the court did not even decide whether the CGL policy provided coverage for a personal and advertising injury based on the city officials' public comments about the GSSE deal because "the breach of contract exclusion would nevertheless preclude OneBeacon's duty to defend the City of Zion." The remaining allegations against the city would not trigger coverage by themselves, the court added, because "they explicitly rely on the breach" of the contract, and "[i]t is clear that the breach of contracts exclusion . . . applies to all the allegations in the Underlying Complaint that involve the City of Zion, eliminating OneBeacon's duty to defend the City."

However, the court opined, the applicability of the exclusion to the city officials was "less straightforward." OneBeacon argued that the counts for fraud and civil conspiracy reference the contract, and the complaint should be read as a whole. The city officials, on the other hand, pointed to the last sentence of the exclusion to argue that, if the contract references were removed from the counts against them, the allegations would still exist for wrongful acts unrelated to any contract.

The court agreed with the city officials. The complaint alleged "numerous" other wrongful acts, including disparaging publications about GSSE to the public and misrepresentations about the bonds, "none of which" relied on any provision in the contract. "The Court cannot conclusively determine that such alleged wrongful acts would not have arisen but for a breach of contract," the court wrote. "Accordingly, there remains sufficient uncertainty as to the applicability of the Contracts Exclusion to the [city officials], and we, therefore, cannot decisively apply the Contracts Exclusion to the claims against them."

A second exclusion for Profit, Advantage or Remuneration similarly did not preclude coverage for city officials, the court held, despite OneBeacon's argument that the complaint was "saturated with the illegal financial motivations" of the city officials. The exclusion prohibited coverage for "[a]ny 'claim' arising directly or indirectly out of, or in any way related to any insured gaining any profit, advantage or remuneration to which that insured is not legally entitled." It is "evident that GSSE could still have pleaded fraud and civil conspiracy claims regardless of whether the city officials gained a profit, advantage or remuneration in which they were not legally entitled," the court opined. "Nowhere is profit, advantage or remuneration a requisite element of either cause of action."

Likewise, the profit exclusion was not "sufficiently triggered," the court held. "We do not find OneBeacon's contention that at least some of the allegations in the forty-two page Underlying Complaint fall in the Profit Exclusion to be very convincing. There must be more than sporadic general allegations to convince us to apply this exclusion."

Accordingly, OneBeacon's motion for summary judgment was granted as to the city but denied as to the city officials.

To read the opinion in OneBeacon America Insurance Co. v. City of Zion, click here.

Insurer's Suit Tossed Based on Failure to Conduct Policy-Mandated ADR

Why it matters: In May insurer Columbia Casualty Company filed a lawsuit in California federal court that had cyber insurance policyholders taking notice. The insured, Cottage Health System, suffered a data breach in October 2013. Patients filed suit, and Cottage settled for $4.125 million. Columbia paid the settlement, and then filed a declaratory judgment action seeking reimbursement for the amounts it paid. Columbia argued that Cottage's efforts at data security failed to meet even minimal standards, and that such poor security violated the terms of its cyber insurance policy. Cottage then filed a motion to dismiss, arguing that Columbia failed to mediate with Cottage prior to filing suit, as required by the policy. Columbia told the court it decided against mediation because the effort would have been "futile" based on preliminary efforts to resolve the dispute. But the court, citing Ninth Circuit precedent, held that the court's only two options where Columbia failed to mediate were dismissal or summary judgment. The court opted for the first option and dismissed the suit without prejudice, giving the parties the chance to attempt to resolve their dispute via mediation.

For further background on the case, click here to review coverage by Business Insurance ("Mediation Ruled First Step in Cyber Coverage Case") or here to review a summary of a recent Reuters article ("Judge Tosses Data Breach Coverage Suit for Failure to Mediate"), for which Stephen Raptis and Susan Page White, partners in Manatt's Insurance Recovery practice, provided commentary.

Detailed discussion: Cottage Health System, a nonprofit network of six hospitals, suffered a data breach in 2013 that made the medical records of more than 32,000 patients public. The patients filed suit, and Cottage reached a deal to settle the case for $4.125 million in late 2014.

Columbia agreed to fund the settlement, but reserved its right to seek reimbursement. Columbia then filed a declaratory judgment action, seeking to recover the amount it paid for the settlement. Columbia argued that the policyholder's lack of data security standards resulted in the breach. As a result, coverage for the breach was precluded by an exclusion for Failure to Follow Minimum Required Practices, which applies to losses involving failure to continue to implement certain data security procedures and risk controls set forth in Cottage's policy application and related materials. Cottage's actions fell squarely within the exclusion, Columbia argued, because, among other things, Cottage used Internet servers that allowed access to private patient information through Google, and did not maintain a system to detect unauthorized attempts to access sensitive information.

But Cottage countered that Columbia itself failed to follow policy requirements. In particular, Cottage pointed to a policy provision requiring that "[a]ll disputes and differences between the Insured and the Insurer which may arise under or in connection with this policy … shall be submitted to the alternative dispute resolution (ADR) process." If mediation is the chosen method of ADR, "no … judicial proceeding shall be commenced until the mediation shall have been terminated and at least 60 days shall have elapsed from the date of the termination." Columbia made no effort to resolve the dispute via ADR, Cottage told the court in a motion to dismiss.

U.S. District Court Judge Dean D. Pregerson opined that his only decision was whether to dismiss the case altogether or, as requested by Columbia, to issue a stay. The language of the policy "controls the timing of suits arising out of the policy and requires that the ADR process take place before a lawsuit is initiated," the court held. "Plaintiff makes no argument that the ADR provision is unconscionable or otherwise unenforceable as a matter of contract, and the provision does not deprive Plaintiff of the right to bring a lawsuit if mediation fails. There is no reason not to hold Plaintiff to its agreement."

The "Court concludes that [Columbia's] failure to exhaust [ADR requirements] is clear from the face of the complaint," Judge Pregerson wrote. "The complaint does not allege that Plaintiff abided by the ADR clause in filing the action; nor, indeed, has Plaintiff argued otherwise. That plaintiff has not exhausted the non-judicial remedies required by the contract is therefore apparent on the face of the complaint." The court also noted that Columbia had not asserted that it would suffer prejudice if the action were dismissed rather than stayed (such as the running of the statute of limitations).

Accordingly, the court granted Cottage's motion to dismiss without prejudice, allowing the parties to pursue ADR under the terms of the policy.

To read the order in Columbia Casualty Co. v. Cottage Health System, click here.

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.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP
Contact
more
less

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.