Insurance Recovery Law - October 2015

In This Issue:

  • Unfair Trade Practices Exclusion Doesn't Cover Consumer Protection Suits
  • California's Cumis Rule Comes to Nevada
  • "Bargaining Leverage" Insufficient to Trigger Exclusion for Monetary or Financial Gain
  • Fifth Circuit: Two Policy Exclusions Preclude Coverage for FCA Suit

Unfair Trade Practices Exclusion Doesn't Cover Consumer Protection Suits

Why it matters: An unfair trade practices clause did not bar coverage for a policyholder's subsidiary, an Illinois federal court ruled, ordering the insurer to provide coverage to the insured's $3 million policy maximum. The subsidiary was hit with eight class action lawsuits for allegedly enrolling consumers in monthly membership programs and charging a fee without consent in violation of various consumer protection laws. Although the insurer initially provided a defense, it drew the line at the eighth lawsuit and said it would not pay more than $1 million for defense costs. The parent company sued the insurer, which relied upon a policy exclusion for claims related to alleged unfair trade practices. But reading the exclusion as a whole, the court said it was intended to cover antitrust-related violations, not fraud-based consumer protection claims such as those found in the underlying complaints. At best, the provision was ambiguous and needed to be resolved in favor of the insured, the judge wrote, granting summary judgment for the policyholder.

Detailed discussion: Big Bridge Holdings, Inc. purchased a $3 million liability policy from Twin City Fire Insurance Company that covered its entire organization, including subsidiary Sempris LLC. Sempris sells membership programs that provide discounts at various restaurants and retailers.

During the policy period, Sempris was sued eight times in various federal courts across the country. The lawsuits alleged both state and federal law violations for enrolling consumers in fee-based monthly membership programs without the consent of the plaintiffs.

Twin City initially provided coverage for the lawsuits. But when the eighth complaint was filed, the insurer sent a letter stating that it was denying coverage for any losses exceeding $1 million. Big Bridge responded with a declaratory judgment suit arguing that Twin City breached its duty to defend and/or indemnify Sempris, and breached the terms of the policy by failing to provide coverage in the full amount.

The insurer filed a counterclaim, arguing that coverage for the lawsuits against Sempris was barred by Section V(A)(5) of the policy, an exclusion that stated Twin City would not pay for any claim "based upon, arising from, or in any way related to any actual or alleged: … (5) price fixing, restraint of trade, monopolization, unfair trade practices or any violation of the Federal Trade Commission Act, Sherman Antitrust Act, Clayton Act, or any similar law regulating antitrust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade activities; provided, however, this exclusion shall not apply to Defense Costs incurred to defend such allegations up to a maximum of the lesser of (i) the remaining amount of the applicable limit of liability listed on the Declarations or (ii) $1,000,000."

Considering cross motions for summary judgment and applying Minnesota law, U.S. District Court Judge Robert M. Dow, Jr. sided with Big Bridge.

The term "unfair trade practices" was not defined by the policy, but the insurer emphasized the broad prefatory language of the exclusion to advocate for an extensive reading of the provision.

While the court agreed that the prefatory language was indeed broad, it took a different approach. "In order to understand the scope of a contractual term, it is necessary to consider the context in which the term appears, reading the provision as a whole," Judge Dow wrote. Section V(A)(5) contained eight separate categories of claims excluded from coverage, ranging from price fixing and restraint of trade to violations of the Sherman Antitrust Act and the Clayton Act.

"Read as a whole, these eight categories are best described as relating to antitrust violations," the court said. "One need look no further than the catch-all exception to reach this conclusion, as that exclusion describes the prior seven exclusions (or at least the prior three) as laws 'regulating antitrust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade activities.'"

In contrast, the eight underlying lawsuits "are best described as fraud-based consumer protection claims alleging deceptive (not anti-competitive) business practices," the judge explained. "[I]t would be an odd bit of contract drafting to aim to incorporate consumer-protection and other fraud-based violations into an exclusion that self-identifies as relating to 'antitrust, monopoly, price fixing, price discrimination, predatory pricing [and] restraint of trade activities' without mentioning the words 'fraud' or 'consumer protection' at all."

The court also rejected Twin City's contention that the phrase "unfair trade practices" encompassed both consumer protection and antitrust claims, similar to the Federal Trade Commission Act, which has both a consumer protection and an antitrust component.

"While there is some appeal to this argument, the total absence of any mention of fraud-based or consumer-protection claims in Section V(A)(5), coupled with the plain-language categorization of these exceptions in the catch-all provision as anti-competitive in nature, counsel in favor of reading 'unfair trade practices' as referencing that term in the antitrust context," the court said.

At a minimum, Judge Dow wrote, the phrase "unfair trade practices" is ambiguous as used in the exclusion. "And in the insured-friendly state of Minnesota, '[a]ny ambiguity is resolved in favor of the insured, and the burden is on the insurer to prove that the claim clearly falls outside the coverage afforded by the policy,'" the court said, citing similar decisions from the Seventh Circuit Court of Appeals and a federal court in Oregon.

"The plain language of Section V(A)(5), read as a whole, excludes antitrust violations and other anti-competitive conduct," the judge concluded. "Any argument that the exclusion should be read broadly because certain antitrust laws mentioned in the exclusion (e.g., unfair trade practices and the FTC Act) have applications beyond the antitrust realm is unavailing. If the insurers wanted to include consumer-protection or consumer-fraud violations into the exclusion, they should have mentioned those well-known bodies of law expressly, not indirectly through a provision clearly aimed at antitrust laws."

To read the opinion in Big Bridge Holdings, Inc. v. Twin City Fire Insurance Co., click here.

California's Cumis Rule Comes to Nevada

Why it matters: Is California's Cumis rule applicable in Nevada? According to the Nevada Supreme Court, the answer is yes. The issue arose in the context of an insurer's refusal to provide independent counsel to an insured who allegedly injured other guests at a party. In the ensuing coverage litigation, a federal court judge in Nevada certified a question to the Nevada Supreme Court asking whether insurers must provide independent counsel for insureds à la San Diego Navy Federal Credit Union v. Cumis Insurance Society. The court answered in the affirmative: "We conclude that Nevada law requires an insurer to provide independent counsel for its insured when a conflict of interest arises between the insurer and the insured," the court wrote. "Nevada recognizes that the insurer and the insured are dual clients of insurer-appointed counsel. When the insured and the insurer have opposing legal interests, Nevada law requires insurers to fulfill their contractual duty to defend their insureds by allowing insureds to select their own independent counsel and paying for such representation." The rule is based in the state's ethics rules for attorneys, the court said, and a desire to avoid conflict of interest. Importantly, and worth noting, the unanimous court stated that insurers are obligated to provide independent counsel only when the legal interests of the insured and the insurer actually conflict and a reservation of rights letter does not create a per se conflict of interest.

Detailed discussion: Stephen Hansen was injured in an altercation with other guests while leaving a house party. As he was stopped at the gated exit of the residential subdivision, the car Hansen was riding in was rear-ended by Brad Aguilar. Hansen filed suit against Aguilar and other party guests in Nevada state court alleging negligence and various intentional torts.

Aguilar's insurer, State Farm Mutual Automobile Insurance Company, agreed to defend him under a reservation of rights. The letter specifically reserved the right to deny coverage for liability resulting from intentional acts and punitive damages.

The trial court granted summary judgment in favor of Hansen on the negligence claim after Aguilar admitted to negligently striking the other vehicle. Aguilar then agreed to a settlement with Hansen in which he assigned his rights against State Farm to Hansen.

Hansen sued State Farm in Nevada federal court, alleging that the insurer violated the state's Unfair Claims Practices Act, breached its contract with Aguilar, and breached the implied covenant of good faith and fair dealing. The federal court judge ruled that State Farm breached its contractual duty to defend Aguilar because it did not provide him with independent counsel of his choosing.

The insurance policy provided coverage only if Aguilar acted negligently, the judge noted, and did not cover intentional tortious acts. Therefore, the interests of Aguilar and State Farm were in conflict. Importing a California rule that originated in San Diego Navy Federal Credit Union v. Cumis Insurance Society, the judge said that an insurance company must provide independent counsel if its interests conflict with the insured's.

State Farm moved for reconsideration. The federal district court granted the motion and certified the issue to the Nevada Supreme Court.

The state's highest court began with Nevada's Rules of Professional Conduct for attorneys. RPC 1.7(a) states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." But when an insurer provides counsel to defend its insured, a conflict of interest may arise, the court said, "because the outcome of litigation may also decide the outcome of a coverage determination—a determination that may pit the insured's interests against the insurer's."

The result: the "insurer-provided lawyer will have a relationship with both the insured and the insurer, who each have legal interests opposing the other." California's Cumis rule solves this problem, requiring an insurer to satisfy its contractual duty to provide counsel by paying for counsel of the insured's choosing to avoid a conflict of interest resulting when an insurer reserves its rights to determine coverage.

What rule should apply in Nevada, the court wondered—the Cumis rule or some alternative?

Courts that have rejected the Cumis rule have not recognized the existence of a conflict of interest, instead reasoning that the sole client is the insured and counsel therefore owes a duty only to the insured, not the insurer. States that have adopted this line of thinking include Alaska, Connecticut, Hawaii, Tennessee, Virginia, and Washington.

"Nevada, in contrast, is a dual-representation state: Insurer-appointed counsel represents both the insurer and the insured," the Nevada Supreme Court said. "Because Nevada is a dual-representation state, counsel may not represent both the insurer and the insured when their interests conflict and no special exception applies. This suggests that the Cumis rule, where the insurer must satisfy its contractual duty to provide counsel by paying for counsel of the insured's choosing, is appropriate for Nevada."

Several amici representing the insurance industry proposed two alternative approaches in lieu of the Cumis rule. One, the primary client model, would have counsel switch from dual-client to single-client representation as soon as a conflict arises. But this rule would be "unworkable" in a dual-representation jurisdiction, the court said, particularly in light of RPC 1.9(a), which prohibits a lawyer who has formerly represented a client in a matter from representing a client "in the same or a substantially related matter."

The second proposal, the contract model, also failed to persuade the court. With this rule, the insurer would select an insured's counsel and contractually instruct him or her that only the insured is a client. A "legitimate question whether counsel can be truly independent" existed, the court said, because the lawyer is selected by and receives compensation from someone with legal interests opposed to the lawyer's client, in violation of the spirit of RPC 1.8(f).

"In sum, Nevada, like California, recognizes that the insurer and the insured are dual clients of insurer-appointed counsel," the court wrote. "Where the clients' interests conflict, the rules of professional conduct prevent the same lawyer from representing both clients. California's Cumis rule is well-adapted to this scenario. It requires insurers to fulfill their duty to defend by allowing insureds to select their own counsel and paying the reasonable costs for the independent counsel's representation."

The court next turned to the effect of a reservation of rights and whether it creates a per se conflict of interest. Jurisdictions are divided on the issue, with some—Alaska, Arizona, Maine, and Massachusetts—applying a per se rule that a reservation of rights creates a conflict of interest between the insured and insurer-appointed counsel, while others (California, Connecticut, Maryland, Minnesota, and Oklahoma) look to the facts of the case to determine whether an actual conflict exists.

Again following the lead of California, the Nevada Supreme Court determined that a case-by-case inquiry into whether a conflict of interest exists was the best approach. The standard for trial courts when deciding whether a conflict of interest exists looks to the state's ethics rules for attorneys, and for independent counsel to be required, "the conflict of interest must be significant, not merely theoretical, actual, not merely potential."

"Therefore, even when (1) there is a reservation of rights and (2) insurer-provided counsel has control over an issue in the case that will also decide the coverage issue, courts must still determine whether there is an actual conflict of interest," the Nevada Supreme Court wrote. "This means that there is no conflict if the reservation of rights is based on coverage issues that are only extrinsic or ancillary to the issues actually litigated in the underlying action."

This approach is the most compatible with Nevada law, the court concluded. "We have held that dual-representation is appropriate as long as there is 'no actual conflict,'" the court wrote. "Moreover, because the Cumis rule derives from rules of professional conduct, it follows that the appropriate standard is whether there is an actual conflict under RPC 1.7. Therefore, an insurer is obligated to provide independent counsel of the insured's choosing only when an actual conflict of interest exists. A reservation of rights does not create a per se interest."

To read the opinion in State Farm Mutual Automobile Insurance Co. v. Hansen, click here.

"Bargaining Leverage" Insufficient to Trigger Exclusion for Monetary or Financial Gain

Why it matters: Denying an insurer's request for reimbursement, a judge in Idaho ruled that findings in an underlying lawsuit that the policyholder obtained "bargaining leverage" were insufficient to trigger an exclusion for financial gain. The coverage dispute began with a competitor's lawsuit alleging a policyholder engaged in anticompetitive behavior by purchasing a new entity. The insured tendered defense to its insurer, which provided almost $8 million in defense costs. When the underlying suit concluded with a determination that the policyholder violated the Clayton Act and parallel state law, the insurer sought reimbursement pursuant to a policy exclusion prohibiting coverage for alleged monetary and financial gain of an insured, such as "profit, financial advantage, or remuneration." Rejecting the insurer's position, the court held that the added bargaining power did not fall within the scope of any of the three terms, all of which "pertain to various types of monetary or financial gain." There was no finding that the policyholder obtained any monetary or financial gain from its bargaining leverage, the court said, and the exclusion was not applicable.

Detailed discussion: With the purchase of Saltzer Group, Idaho-based St. Luke's Health System faced a competitor's lawsuit alleging violations of the Clayton Act and an ancillary Idaho law. A federal court judge held that St. Luke's violated both laws, a decision largely affirmed by the Ninth Circuit Court of Appeals.

Both opinions focused on the bargaining leverage that St. Luke's obtained by purchasing Saltzer, predicting that the leverage would result in higher prices in the future. Importantly for the subsequent coverage dispute, neither opinion included a finding that St. Luke's had actually used its bargaining leverage to obtain monetary or other financial gain.

St. Luke's tendered a claim to Allied World National Assurance Company for the cost of defending the lawsuit. The insurer agreed to pay subject to a reservation of rights and partially reimbursed the policyholder for almost $8 million in defense costs. But a few months later, Allied sent St. Luke's a letter denying coverage, refusing to pay any further defense costs, and demanding repayment of the $8 million.

Allied relied upon Exclusion A of the policy for its refusal. The provision barred coverage for any loss in connection with any claim "arising out of, based upon or attributable to the gaining of any profit or financial advantage or improper or illegal remuneration by [St. Luke's,] if a final judgment or adjudication establishes that [St. Luke's] was not legally entitled to such profit or advantage or that such remuneration was improper or illegal[.]"

St. Luke's filed suit arguing that Allied was in breach of the policy, while the insurer counterclaimed seeking to recover the monies it had paid. U.S. District Court Judge B. Lynn Winmill found the exclusion inapplicable, granting summary judgment in favor of the insured.

"In this case, the Court held that St. Luke's was not legally entitled to the bargaining leverage it obtained by purchasing Saltzer, and the Ninth Circuit affirmed that decision," he wrote. "The Court made no finding that St. Luke's used that bargaining leverage to actually obtain any monetary or financial gain. The Court did not award any damages or order St. Luke's to disgorge any profits or financial gain. Thus, there was no 'final judgment or adjudication' that St. Luke's 'was not legally entitled to such profit or advantage or that such remuneration was improper or illegal.'"

The language of the policy was clear, the court said. "Each of the three terms in Exclusion A—profit, financial advantage, improper/illegal remuneration—pertain to various types of monetary or financial gain," the judge wrote. "Yet there was no finding that St. Luke's obtained any monetary or financial gain from its bargaining leverage."

Judge Winmill proffered an analogy to explain the distinction. "Bargaining leverage is to financial advantage what education is to employment—a means to an end," he wrote. "Just as education is a means of obtaining employment, so is bargaining leverage a means of obtaining a financial advantage. Allied conflates the means with the ends. Just as the word education cannot be used interchangeably with the word employment, so too financial advantage is not interchangeable with bargaining leverage."

The court declined Allied's invitation to interpret "financial advantage" to include bargaining leverage. "Of course, it would have been easy for Allied as the drafter to define financial advantage to include bargaining leverage," the court said. "But it did not do so. Allied urges this Court to 'interpret' the term financial advantage to include bargaining leverage, but it is really asking the Court to add the definition that it failed to write into the policy. This Court cannot 'add words to … avoid liability.'"

Ruling in favor of St. Luke's, the court ordered Allied to reimburse all defense costs incurred by the insured prior to and during the appeal of the underlying litigation. In addition, the court held that Allied breached its duties to St. Luke's under the policy, that Exclusion A did not bar coverage for the claim, and Allied was not entitled to reimbursement of defense costs previously paid to the insured.

To read the decision in St. Luke's Health System v. Allied World National Assurance Company, click here.

Fifth Circuit: Two Policy Exclusions Preclude Coverage for FCA Suit

Why it matters: Two policy exclusions—one for violations of deceptive practices laws and another for predetermined level of fitness failures—operated to preclude coverage for a False Claims Act (FCA) suit against a shipbuilder, the Fifth Circuit Court of Appeals recently determined. The shipbuilder worked on a project to convert U.S. Coast Guard boats into larger vessels. When one of the ships demonstrated structural problems, a government investigation revealed all of the boats were unsound and the shipbuilder made misrepresentations about the strength of their hulls. The government filed suit alleging violations of the FCA as well as fraud, negligent misrepresentation, and unjust enrichment. The shipbuilders denied coverage and the Fifth Circuit agreed, holding that two exclusions barred coverage for the government's lawsuit: one for predetermined level of fitness failures (which took care of the unjust enrichment and negligent misrepresentation claims), while the violation of deceptive practices law exclusion eliminated coverage for the FCA and common-law fraud claims, the court said.

Detailed discussion: Bollinger Shipyards won a multimillion-dollar contract to upgrade eight U.S. Coast Guard 110-foot cutters to 123-foot craft as part of the Coast Guard's modernization program. In 2004, one of the vessels refitted by Bollinger suffered a structural casualty. An investigation by the Coast Guard found that all eight vessels were similarly deficient and unusable, despite efforts to remedy the hull strength.

The government filed an FCA suit against Bollinger. According to the complaint, when the Coast Guard expressed concern during the bidding and development stages about the ability of the boats' hulls to accommodate the extensions, the shipbuilder submitted a longitudinal strength analysis demonstrating that the boats would have more than the required strength. Bollinger did not disclose that revised calculations indicated the hull strength was not sufficient for the conversion, the government said.

Four claims were included in the lawsuit: two violations of the FCA, as well as counts alleging common-law fraud, negligent misrepresentation, and unjust enrichment. Trial is currently scheduled for April 2016.

Bollinger requested coverage for the government's lawsuit from its general maritime liability insurer XL Specialty Insurance Company and excess insurer Continental Insurance Company. XL responded with a reservation of rights letter and Bollinger continued to fund its own defense.

The policyholder then filed suit against both insurers alleging bad faith and breach of contract. A federal court judge in Louisiana granted summary judgment in favor of the insurers, and Bollinger appealed to the Fifth Circuit Court of Appeals.

XL proffered several exclusions that it argued applied to preclude coverage for the government's suit against Bollinger. The federal appellate panel found two of the exclusions prevented coverage: one for failures of predetermined level of fitness and a second prohibiting coverage for unfair or deceptive trade practices.

Exclusion 28 of the policy stated that coverage "shall not apply to … [t]he failure of your products to meet any predetermined level of fitness or performance and/or guarantee of such fitness or level of performance and/or any consequential loss arising therefrom."

Bollinger told the court that the exclusion was inapplicable because the government was seeking damages for the entire value of the vessels and not just the work product for which the shipbuilder was responsible. "This argument cannot succeed," the three-judge panel wrote. "Exclusion 28, by its own terms, exempts claims for damage not only to the insured's work product but also to things other than the insured's product."

The shipbuilder also contended that the underlying suit did not actually allege a failure to meet a predetermined level of fitness. Again, the court rejected the insured's argument. The underlying complaint pled that "Bollinger … was responsible for the … performance requirements" of the modified boats, the Fifth Circuit said, and referenced specific requirements such as "the required section modulus," a requirement to comply with American Bureau of Shipping standards, and a requirement to provide a hull strength analysis.

"[T]he complaint lays out straightforwardly that Bollinger failed to meet a requirement that the parties together determined in advance," the court said. "The [contract] required the vendor to submit a hull strength analysis, which states the required longitudinal strength that Bollinger's work failed to meet."

Exclusion 28 foreclosed coverage for the unjust enrichment and fraudulent misrepresentation claims, the court said. Turning to Exclusion 32, the panel found it precluded coverage for the remaining counts under the FCA and common-law fraud.

Absolving XL from coverage, Exclusion 32 stated: "e. Actual or alleged liability arising out of or incidental to any alleged violation(s) of any federal or state law regulating, controlling, and governing antitrust or the prohibition of monopolies, activities in restraint of trade, unfair methods of competition or deceptive acts and practices in trade and commerce, including, without limitation, the Sherman Act, the Clayton Act, the Robinson-Patman Act, the Federal Trade Commission Act and the Hart-Scott-Rodino Antitrust Improvements Act; or f. Actual or alleged liability arising out of or contributed by [Bollinger's] dishonesty or infidelity."

Although the shipbuilder conceded at the district court level that Exclusion 32 eliminated coverage, it changed position to qualify that provision "may" exempt the underlying claims. "Of course it does," the panel wrote. "[T]he FCA claims clearly fall under Exclusion 32.e. It is irrelevant that the FCA is not listed among the statutes excluded, since the FCA is a 'federal law … regulating … deceptive acts and practices in trade and commerce[.]'" Further, "the alleged FCA violation need not itself be 'deceptive.' The plain language of Exclusion 32.e embraces laws that regulate deceptive acts, not allegations of deceptive acts."

As for Continental, the panel affirmed summary judgment in the excess carrier's favor, as the policy provided coverage only for property damage and personal injury—not payment for false claims made to the government, as requested in the underlying FCA suit.

To read the decision in XL Specialty Insurance Co. v. Bollinger Shipyards, 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

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 (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.