Key Developments in Canadian Insolvency Case Law in 2019

In 2019, a number of judicial decisions were rendered across Canada, including by the Supreme Court of Canada (SCC), that will be of interest to commercial lenders and restructuring professionals. This article summarizes the core issues of importance in each of these cases. It also provides status updates on the cases reported in our January 2019 Blakes Whitepaper: 2018 Developments in Canadian Insolvency Case Law: What Lenders Need to Know, and includes a summary of any appellate decision rendered in 2019 in respect of those cases.

Competing CCAA and Receivership Applications
Validity of Statutory Liens After Bankruptcy in Ontario
Enforceability of Monetary Consequences for Insolvency in Contract
Payment of Superintendent’s Levy
Update On 2018 Case Law Bulletin

COMPETING CCAA AND RECEIVERSHIP APPLICATIONS

Romspen Investment Corporation v Atlas Healthcare (Richmond Hill) Ltd. et al

Date of Decision: December 10, 2018

The Ontario Superior Court of Justice (ONSC) set out the applicable factors a court should consider when deciding between competing applications for the appointment of a receiver brought by a secured lender and an application for relief under the Companies’ Creditors Arrangement Act (Canada) (CCAA) brought by the debtor company. The ONSC found that there is no priority of consideration between the two competing applications and that each must be judged on its own merits, taking into account the following factors, among others:

  1. Operational issues pertaining to the competing applications and the feasibility of each restructuring plan
  2. The nature of the property at issue, which in these circumstances was real property
  3. The legal rights and interests of the secured creditors
  4. The interests of other stakeholders

Ultimately, the ONSC granted the receivership application over the CCAA application, noting that a CCAA proceeding—which benefits junior ranking creditors and equity holders but results in prejudice to senior ranking creditors—can only be justified on the basis that wider societal interests will be served. Such broader societal interests were not present in this case.

Status

The time period for appeal of this decision has expired and this decision is now final. In a similar case, in December 2019, the Court of Queen’s Bench of Alberta (ABQB) sided with secured creditors in the CCAA proceedings of Re IEC Ltd. et al (Strategic Group) and terminated CCAA proceedings 10 days after commencement, thereby permitting the appointment of an interim receiver on the application of those secured creditors. A similar decision favouring receivership was also reached in Norcon Marine Services Ltd., (Re), 2019 NLSC 238 in December 2019 by the Supreme Court of Newfoundland and Labrador.

Takeaway

Courts continue to be mindful of the rights and interests of senior secured creditors as principal economic stakeholders when evaluating the appropriateness of competing insolvency proceedings.

VALIDITY OF STATUTORY LIENS AFTER BANKRUPTCY IN ONTARIO

The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

Date of Decision: January 14, 2019

In this decision, the Court of Appeal for Ontario (ONCA) considered whether funds held in trust pursuant to section 8 of the Construction Lien Act (Ontario) (CLA) are trust funds pursuant to section 67(1)(a) of the Bankruptcy and Insolvency Act (Canada) (BIA), and are therefore excluded from the debtor’s estate and not available for distribution to creditors. Section 67(1)(a) provides that the debtor’s estate does not include property held by it in trust, but there is a body of caselaw which establishes that provincially-created statutory deemed trusts are not captured by this exclusion.

The ONCA determined that provincially created statutory trusts will survive bankruptcy where the statutory trust satisfies principles of ordinary trust law: certainty of intention, certainty of subject matter and certainty of object.

The ONCA went on to hold that, in the circumstances of this case, the statutory trust and overall framework of the CLA creates the required element of certainty of intention to create a trust over the debt owed by the debtor company to a contractor. The ONCA also noted that the trust does not need to attach to specific funds earmarked for satisfaction of the debt and that, in this case, certainty of subject matter was satisfied as funds paid for each project were ascertainable and traceable.

Status

The time period for appeal of this decision has expired and this decision is now final.

Takeaway

This case should not be read to mean that provincial deemed trusts will always continue to operate in bankruptcy. Ordinary principles of trust law must still be satisfied—including certainty of intention, subject matter and object—in order for trust funds to be exempt from distribution under section 67(1)(a) of the BIA. We note that, although the CLA was amended and renamed in 2019 as the Construction Act (Ontario)—which came into force in parts on July 1, 2018, and on October 1, 2019—the deemed trust provisions remain unchanged.

ENFORCEABILITY OF MONETARY CONSEQUENCES FOR INSOLVENCY IN CONTRACT

Capital Steel Inc v Chandos Construction Ltd, 2019 ABCA 32

Date of Decision: January 29, 2019

A contract between a contractor and subcontractor contained a clause (Insolvency Clause) stating that the subcontractor would forfeit 10 per cent of the total contract price in the event that it committed an act of insolvency. The subcontractor ultimately became insolvent and assigned itself into bankruptcy, engaging the Insolvency Clause. At the time of bankruptcy, the contractor owed the subcontractor C$150,000. The contractor argued that this amount should be reduced as a result of the Insolvency Clause.

Clauses such as these, known as ipso facto clauses, were rendered unenforceable by legislation in BIA proposals and CCAA proceedings. However, the legislation does not address the enforceability of these clauses in commercial bankruptcies or receiverships and accordingly, the Court of Appeal of Alberta (ABCA) had to consider whether the anti-deprivation rule forms part of Canadian common law.

The majority of the ABCA found that there is a common law anti-deprivation rule, and that notwithstanding the absence of a clear legislative directive in circumstances involving commercial bankruptcies, a provision in an agreement is void if it provides that upon an insolvency, value is removed from the reach of the insolvent person’s creditors and placed in the hands of others. Such contractual clauses prejudice creditors and offend the common law anti-deprivation rule by conflicting with the BIA’s scheme of distribution. In contrast, the dissenting judge found that the anti-deprivation rule does not form part of the common law of Canada and, even if it did, the courts must assess whether the purpose of the contractual provision, not the effect, was to prejudice creditors.

Status

On July 11, 2019, the SCC granted leave to appeal this decision and the appeal was heard on January 20, 2020. A decision is pending.

Takeaway

Pending a decision from the SCC, the common law of Canada includes an anti-deprivation rule which applies in commercial bankruptcies.

PAYMENT OF SUPERINTENDENT’S LEVY

Superintendent of Bankruptcy v Business Development Bank of Canada, 2019 MBCA 72

Date of Decision: June 14, 2019

Pursuant to section 147 of the BIA, a levy is payable to the Superintendent of Bankruptcy (Superintendent) on all payments made to creditors by a licensed insolvency trustee. Typically, the amount of this levy is held back by a licensed insolvency trustee from distributions to creditors for remittance to the Superintendent. In this case, the debtor filed a notice of intention to make a proposal and proceeded to dispose of its assets during the proposal proceedings pursuant to approval and vesting orders, which provided that the net sale proceeds were to be held by the trustee in the proposal proceedings, pending a determination of entitlement to such proceeds. Subsequent to the sale transactions, the debtor failed to make a proposal within the requisite time—six months—and was deemed to have made an assignment into bankruptcy. The trustee continued to hold the sale proceeds following the bankruptcy.

A secured creditor moved for a declaration that the levy was not payable because the funds were received as proceeds of sale pursuant to approval and vesting orders, which vested the interest that secured creditors had in the collateral into the proceeds of sale, with the same priority that was enjoyed prior to the sale.

The Court of Appeal of Manitoba (MCA) held that the key consideration in determining whether the levy is payable with respect to a distribution by a trustee from proceeds of sale is whether the proceeds are derived from a secured creditor realizing on its security. In this case, the MCA held that the notice of intention to file a proposal stayed all secured creditors and that the proceeds were held by the trustee in its capacity as a licensed insolvency trustee, rather than an escrow agent. Accordingly, it was found that the sale was not derived from a secured creditor realizing on its security, and that the trustee was acting in its capacity as a licensed insolvency trustee administering the estate of the bankrupt when it distributed funds to the secured creditors. Accordingly, the distribution would be subject to the levy.

Status

The time period for appeal of this decision has expired and this decision is now final.

Takeaway

In bankruptcy or proposal proceedings, secured creditors should carefully consider the mode of realization of assets subject to their security and the manner in which proceeds are held and distributed, so as to avoid the risk that such distributions will be subject to the Superintendent’s levy.

UPDATE ON 2018 CASE LAW BULLETIN

Priority of Environmental Reclamation Obligations

Orphan Well Association v. Grant Thornton Limited (also known as Redwater)

Date of Decision: January 31, 2019

In this important decision, the SCC overturned the decision of the ABCA and found that certain sections of the Oil and Gas Conservation Act (Alberta) and Pipeline Act (Alberta) do not conflict with the scheme of distribution set out in the BIA. In the majority’s view, section 14.06 of the BIA is concerned only with personal liability of trustees and receivers and does not permit a trustee or receiver to walk away from environmental liabilities of the estate it is administering. A trustee or receiver may be required to satisfy certain environmental claims in priority to the claims of secured creditors, out of estate proceeds.

For more information, please see our January 2019 Blakes Bulletin: Supreme Court of Canada Overturns Alberta Court of Appeal in Redwater Decision.

Approval of Litigation Funding Agreements and Lender Sponsored CCAA Plans

Arrangement relatif à 9354-9186 Québec inc. (Bluberi Gaming Technologies Inc.) -and- Ernst & Young Inc.

Date of Decision: February 4, 2019

The Québec Court of Appeal (QCA) reversed the decision of the Québec Superior Court (QSC) rendered on March 16, 2018. The lower court held that, in appropriate circumstances, it is possible for a creditor to bring forward a CCAA plan and vote on it, but that in this particular case, the creditor was using the CCAA plan for improper purposes—in part because the debtor had significant litigation claims against the creditor which were proposed to be released as part of the creditor’s plan—and should therefore not be permitted to vote on it. The QSC also granted the debtor’s application for approval of a litigation funding agreement (LFA) to fund a lawsuit against the same creditor.

The QCA found that there was nothing improper about a creditor proposing a plan it stands to gain from in exchange for valuable consideration and that there was no justification, on the facts of this case, to deny the creditor its right to vote.

The QCA also reversed the QSC’s decision on approval of the LFA, finding that, in these circumstances, the LFA impacted creditors’ rights and, as such, constituted a plan of arrangement that should have been submitted to creditors for approval.

Status

Leave to appeal to the SCC was granted on August 15, 2019, and the appeal was heard on January 23, 2020. In uncommon fashion, the SCC issued a decision from the bench allowing the appeal of the QCA’s decision—with reasons to follow.

Takeaway

We will prepare a full summary of the SCC’s decision following its release.

For more information, please see our February 2019 Blakes Bulletin: Improper Purpose by a Creditor? The Quebec Court of Appeal Weighs In.

Can a Court Vest Out a Third-Party Interest in Land?

Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508

Date of Decision: June 19, 2019

There were three main issues before the ONCA in connection with receivership proceedings of Dianor Resources Inc.:

  1. Whether a gross overriding royalty (GOR), a royalty interest attached to the lease or license issued by the Crown and paid out of the revenue from the production of oil and gas, can be considered an interest in land
  2. If so, whether an interest in land can be vested out in an insolvency proceeding so that the purchaser would acquire the land free and clear of the GOR
  3. As the receiver was appointed under both the Courts of Justice Act (Ontario) and the BIA, the ONCA had to consider which statute governed the timeframe regarding appeals

The first issue was decided on March 15, 2018, with the ONCA deciding that GORs can constitute interests in land.

The subsequent appeal decision with respect to vesting orders was issued on June 19, 2019, and the ONCA found that section 243 of the BIA provides the court with the jurisdiction to vest out interests in land, including GORs, but that such jurisdiction is not unbounded and should only be exercised in appropriate cases. In deciding whether it is appropriate to extinguish a third-party interest in land, the primary consideration is whether the interest in land is more akin to a fixed monetary interest or a fee simple that is, in substance, an ownership interest. The ONCA found that the following additional factors should also be considered when deciding whether to extinguish an interest in land: (i) whether the owner had a reasonable expectation that the interest would be of a continuing nature and could not be extinguished in the ordinary course through payment in lieu, (ii) whether the interest holder consented to the vesting out of their interest either at the time of or prior to the sale, and (iii) the equities of the case (e.g. prejudice to the GOR holder, whether the parties were acting in good faith, etc.).

The appeal by the holder of the GOR seeking to set aside the vesting order was ultimately dismissed as the ONCA concluded that the BIA governed the timeframe relating to appeals and the appeal was not brought within the time period prescribed by the BIA rules.

Status

The time period for appeal of this decision has expired and this decision is now final.

Takeaway

An interest in land, including a GOR, can be vested out in an insolvency proceeding in appropriate circumstances based on factors set out by the ONCA. However, the analysis will be very fact specific.

For more information, please see our July 2019 Blakes Bulletin: Long May You Run: Ontario Court of Appeal Clarifies the Treatment of Mineral Royalties in Insolvency Proceedings.

No Special Lien for Unpaid Linear Property Taxes

Northern Sunrise County v Virginia Hills Oil Corp, 2019 ABCA 61

Date of Decision: August 29, 2019

The issue on appeal before the ABCA in the receivership proceedings of Virginia Hills Oil Corp. was whether the claims of certain municipalities for “linear property tax” arrears—taxes levied against linear properties such as electric power systems, street lighting, pipelines and telecommunications systems—granted the municipalities a special lien, pursuant to the Municipal Government Act (Alberta) (MGA). If so, municipalities would have priority over all creditors, including secured creditors, other than the Crown, in a receivership proceeding. Linear property taxes are payable by operators of the “linear property.” The ABCA held that the term “property tax” in the MGA does not include linear property taxes and accordingly the MGA does not create any special lien in favour of municipalities for arrears of linear taxes. In arriving at this conclusion, the ABCA noted that an interpretation otherwise could result in a manifestly unjust outcome where linear property taxes attach to linear property and are borne by the owner thereof, rather than the operator of the linear property—the party liable for the linear property tax.

Status

Leave to appeal was sought and denied by the SCC and this decision is now final.

Takeaway

Municipalities are not granted a special lien for unpaid linear property taxes pursuant to the MGA.

For more information, please see our February 2019 Blakes Bulletin: Priority Denied: Alberta Court of Appeal Determines Linear Property Tax Arrears Are Not Subject to a Special Lien.

Discretionary Nature of The Priority of the Receiver’s Charge

Edmonton (City) v Alvarez & Marsal Canada Inc, 2019 ABCA 109

Date of Decision: March 25, 2019

In a 2018 judgment, the ABQB refused to exercise its jurisdiction to grant priority to the receiver’s charge—which secures the fees and disbursements of a receiver and its counsel—over municipal tax claims, on the basis that the case involved a liquidation process and there was no apparent benefit to the municipality out of the liquidating receivership.

On appeal, the ABCA noted that there was nothing on the record to suggest that the municipality would receive no benefit from the process undertaken by the receiver for the benefit of all creditors. The ABCA went on to hold that, while the court can exercise its discretion in respect of the priority afforded to a receiver’s charge, such discretion should be exercised on a principled basis and ought not be exercised solely on the basis that a receivership is a liquidation. Accordingly, the appeal was allowed and the lower court’s decision was reversed.

Status

Leave to appeal this decision to the SCC was denied on October 10, 2019, and the decision is now final.

Takeaway

This decision illustrates the discretionary nature of the priority of court-ordered charges in insolvency proceedings and provides guidance on the circumstances in which such discretion may be exercised.

Distributions to Creditors of Proceeds Impressed with a Deemed Trust Under the Excise Tax Act (Canada)

Canada v. Toronto-Dominion Bank, 2018 FC 538

Date of Decision: May 25, 2018

In this decision, the Federal Court found that, absent a bankruptcy, the Excise Tax Act (Canada) (ETA) imposes an obligation on secured creditors to repay money received out of proceeds of sale, which are otherwise subject to a deemed trust for unremitted HST/GST (i.e. federal/provincial sales tax) under the ETA. Accordingly, the secured creditor was ordered to remit funds to the Canada Revenue Agency (CRA) from its proceeds of realization to satisfy the CRA’s deemed trust claim.

Updated Status

The secured creditor appealed the decision and the appeal was heard by the Federal Court of Appeal on October 8, 2019. No decision has been rendered at this time.

Priority of DIP Charges

Canada v. Canada North Group Inc., 2019 ABCA 314

Date of Decision: August 29, 2019

The majority of the ABCA upheld the lower court’s decision, ruling that the Crown’s interests under the statutory deemed trust provisions of the Income Tax Act (Canada), Canada Pension Plan (Canada) and Employment Insurance Act (Canada) for unremitted source deductions are not proprietary interests, and are instead akin to a secured interest. The ABCA went on to hold that, as the CCAA permits security interests to be primed, a CCAA court can order that charges rank ahead of these deemed trust interests.

Status

Application for leave to appeal to the SCC was filed on October 24, 2019. No decision on leave to appeal has been rendered.

Takeaway

Subject to further appellate review, this decision provides comfort to insolvency practitioners, court officers and other parties that rely on court-ordered priority charges that courts do have the jurisdiction to order that such charges rank in priority to deemed trusts in favour of the Crown for unremitted source deductions.

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.

© Blake, Cassels & Graydon LLP | Attorney Advertising

Written by:

Blake, Cassels & Graydon LLP
Contact
more
less

Blake, Cassels & Graydon 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.