Make-Whole Premiums Get to "Pass Go" in Bankruptcy Court

BakerHostetler
Contact

A make-whole premium is a lump-sum payment that becomes due under a financing agreement when repayment occurs before the stated maturity date, thereby depriving the lender of all future interest payments bargained for under the agreement. Make-whole provisions, ubiquitous in the bond market, are becoming more prevalent in commercial loan transactions, including in the distressed context. That trend is spurred by favorable court rulings for lenders enforcing make-whole premiums when the borrower files for bankruptcy protection. Tight, unambiguous contracts with respect to the lender's rights are not being second-guessed by the courts. An example are recent decisions from the bankruptcy courts in Delaware in In re School Specialty, Inc., No. 13-10125, 2013 WL 1838513 (Bankr. D. Del. Apr. 22, 2013), the Southern District of New York in In re AMR Corp., 485 B.R. 279 (Bankr. S.D.N.Y. 2013) and the Western District of Oklahoma in GMX Resources, Inc., No. 13-11456 (filed Apr. 1, 2013). Nevertheless, lenders' claims to make-whole premiums continue to be challenged by unsecured creditors and equity committees, as in the bankruptcy case of In re Rotech Healthcare, Inc., No. 13-10741 (Bankr. D. Del. filed Apr. 8, 2013).

THE SCHOOL SPECIALTY DECISION[1]

School Specialty entered into a credit agreement pre-bankruptcy to borrow $70 million from lender, Bayside Finance, LLC (Bayside). Under the terms of the parties' agreement, School Specialty was obligated to pay a make-whole premium to Bayside if the loan was prepaid or accelerated before the stated term. The parties' agreement calculated the make-whole premium as the present value of future interest payments that would have accrued between the date the principal was prepaid or accelerated and the loan's maturity date. The loan matured at the end of year 2014, but the maturity date could be extended to the end of 2015 under certain circumstances. School Specialty breached a covenant in the credit agreement that triggered its obligation to pay the make-whole premium. On January 4, 2013, School Specialty entered into a forbearance agreement with Bayside, acknowledging acceleration of the loan caused by the breach and the obligation to pay the make-whole premium in the approximate sum of $25 million.

The amount of the make-whole premium represented 37 percent of the loan principal, which was, in the court's words, large enough "to give the Court pause." 2013 WL 1838513, at *4. The premium was calculated based on interest payments that would have been due through the 2015 maturity date of the loan, at the U.S. Treasury rate plus 50 basis points.

On January 28, 2013, School Specialty and related entities (collectively School Specialty) filed voluntary petitions for Chapter 11 relief. School Specialty and Bayside entered into a debtor-in-possession financing arrangement, stipulating that School Specialty owed Bayside the principal of the loan and the make-whole premium of $23.7 million. Reacting to the magnitude of the premium that squeezed unsecured creditors out of the money, the Official Committee of Unsecured Creditors filed a motion to disallow the make-whole premium. Bayside opposed the Committee's motion.

The bankruptcy court conducted a trial, heard testimony and denied the Committee's motion. Applying the parties' choice of law under their agreement, which was New York, the court overruled all of the Committee's arguments.

First, the court found that New York law enforces make-whole premiums as liquidated damages. Id. at *2-*3. Liquidated damages provisions are enforceable when (1) actual damages are difficult to determine and (2) the sum stipulated is not "plainly disproportionate" to the possible loss. Id. To determine if a make-whole premium is plainly disproportionate to the lender's possible loss, courts consider whether the premium is (1) calculated to provide the lender with its bargained-for interest on the principal amount of the loan and (2) the result of an arms-length transaction between sophisticated parties represented by counsel. Id. Whether the premium is disproportionate to the loss is determined at the time the parties entered into the agreement and not at the time of the breach. The court determined that calculating the make-whole premium based on the extended maturity date was not plainly disproportionate to Bayside's possible loss, because the parties bargained for an extended repayment period. Id. at *3. In addition, the court found that the parties' transaction was arms-length and the U.S. Treasury bond interest rate applied in calculating the make-whole premium was appropriate. Id. at *4.

Second, the court ruled that applicable New York law did not require the make-whole premium to pass muster as "reasonable" under Bankruptcy Code section 506(b). Id. at *5. Section 506(b) of the Bankruptcy Code provides that where a secured creditor's collateral is worth more than the secured debt, reasonable fees, costs or other charges provided for under the parties' agreement may be added to the total indebtedness up to the value of the collateral. Even if the make-whole premium had to pass a "reasonable" test, the court would have approved it.

Third, the court held that the make-whole premium could not be disallowed under Bankruptcy Code section 502(b)(2) because make-whole or prepayment premiums are not characterized as unmatured interest. Id. at *5 (citing In re Trico Marine Servs., Inc., 450 B.R. 474 (Bankr. D. Del. 2011)). Finally, the court found that there was no duty to mitigate a valid liquidated damages claim.

The School Specialty decision has been appealed to the district court. See Off. Comm. of Unsecured Creditors v. Bayside Finance LLC, 13 Civ. 1009 (D. Del.) (GMS). Shortly after the appeal, the parties scuffled over Bayside's refusal to accept tender of the make-whole premium, thereby obliging the School Specialty to pay interest at a 17-percent default rate. Bayside eventually accepted payment. The appeal is going forward, and the parties have set a briefing schedule ending in November 2013.

In AMR, discussed below, a Southern District of New York bankruptcy court, applying New York law, again strictly construed the parties' contract but determined that default did not trigger payment of the make-whole premium.

THE AMR DECISION

In AMR, American Airlines had issued prepetition equipment notes for the purchase of aircraft in three separate financing transactions with U.S. Bank, as indenture trustee. Upon voluntary redemption of the notes, the indenture entitled U.S. Bank to receive (1) 100 percent of the unpaid principal amount outstanding, (2) accrued but unpaid interest to the date of redemption and (3) a make-whole premium equal to the discounted future stream of interest payments. The indenture also provided that a voluntary bankruptcy filing was an event of default. Unlike voluntary redemption, an event of default entitled U.S. Bank to automatically accelerate the unpaid principal and accrued but unpaid interest payments, but did not entitle U.S. Bank to a make-whole premium.

In November 2011, American Airlines and related entities (collectively, American) filed a voluntary petition for Chapter 11 relief and sought debtor-in-possession financing from various lenders, the proceeds of which, at least in part, would be used to pay off prepetition indebtedness to U.S.Bank. U.S. Bank objected to the extent American sought to repay the indebtedness without the make-whole premium. U.S. Bank argued that the make-whole premium was due under the parties' agreement because the payoff was tantamount to the American voluntary redemption of the notes. American argued that their bankruptcy filing was an event of default, and therefore, under the indenture, it had no obligation to pay a make-whole premium.

The bankruptcy court agreed with American, and denied U.S. Bank the make-whole premium. The court did not hold an evidentiary hearing, finding that the plain language of the indenture stated a bankruptcy filing was an event of default that automatically accelerated the loan but did not entitle U.S. Bank to the make-whole premium. Id. at *289. The court further found that U.S. Bank could not waive the default, because a waiver would violate the automatic stay and obligate American to pay the make-whole premium when their contract provided otherwise. Id. at *294-95.

The court also rejected U.S. Bank's argument that the bankruptcy default clause in the indenture was an unenforceable ipso facto clause under the Bankruptcy Code, which invalidates a default occasioned by a debtor's insolvency or filing of a bankruptcy petition. Id. at *295. The court held that ipso facto[2] clauses are not per se invalid except if contained in an executory contract[3] or unexpired lease. Id. (citing In re Gen. Growth Props., Inc., 451 B.R. 323, 329 (Bankr. S.D.N.Y. 2011)). The court found that the bankruptcy default clause here was enforceable, because the contract at issue was an indenture, and was not subject to the Bankruptcy Code provisions applicable to executory contracts within the meaning of the Bankruptcy Code. Id. at *297. Likewise, the court found that the proposed new financing transaction was not a voluntary redemption, because American were paying notes that had matured due to acceleration under the indenture, which was triggered by their bankruptcy filing. Id. at *298. Payoff of the notes, therefore, was not a pre-payment, but rather was made post-maturity date. Id.

The AMR decision was directly appealed to the United States Court of Appeals for the Second Circuit. On September 12, 2013, the Second Circuit affirmed the bankruptcy court's decision in full. See In re AMR Corp., No. 13-1204, slip op. (Sept. 12, 2013) (ECF No. 109). Based upon the plain language of the indentures, the Second Circuit determined that filing the bankruptcy petition triggered a default, which accelerated the debt but did not require payment of a make-whole amount. Id. at 19-22. The Second Circuit further agreed with the bankruptcy court's reasoning that payoff of the notes was not a voluntary redemption, because the notes were accelerated and hence mature, id. at 31-32, and the indentures were not executory contracts and, therefore, the bankruptcy default clause was unenforceable as an ipso facto clause. Id. at 37-38. The Second Circuit rejected the argument that ipso facto clauses in non-executory contracts are per se prohibited, finding that such a conclusion is not supported by the Bankruptcy Code. Id. at 39-40.

THE GMX AND ROTECH HEALTHCARE CASES

Following the decisions in School Specialty and AMR, disputes between unsecured creditors and debtors over the enforceability of make-whole premiums are becoming a more consistent feature in the restructuring landscape. In the bankruptcy case of In re GMX Resources, Inc., No. 13-11456 (Bankr. W.D. Ok. filed Apr. 1, 2013), for example, the bankruptcy court ruled in an oral decision on August 27, 2013, that the first-lien lenders' claim properly included a make-whole premium in the amount of $66 million, rejecting a challenge by the Official Committee of Unsecured Creditors. Following the reasoning in School Specialty and AMR, the court relied chiefly on the unambiguous language of the governing credit agreement. Applying New York law, the court reasoned that the lenders' anticipated losses were difficult to estimate at the time the indenture was drafted; calculating the rate tied to U.S. Treasury bonds was not disproportionate to the anticipated losses; the make-whole premium was in the nature of liquidated damages and not unmatured interest subject to disallowance under section 502(b)(2) of the Bankruptcy Code; and Bankruptcy Code section 506(b)'s reasonableness standard did not apply. Unlike School Specialty, however, the court took testimony on whether the calculation of the make-whole premium followed industry practice.

In the bankruptcy case of In re Rotech Healthcare, Inc., No. 13-10741 (Bankr. D. Del. filed Apr. 8, 2013), the Official Committee of Equity Security Holders filed a motion to interdict any claim of the second lien noteholder to a make-whole premium in the amount of $57 million. The Equity Committee made the now familiar, but unsuccessful, arguments that the Creditors' Committee made in School Specialty, arguing that the make-whole premium was an unenforceable penalty under New York contract law, unenforceable unmatured interest under section 502(b)(2) of the Bankruptcy Code, and was improperly based on a reinvestment rate tied to U.S. Treasury bond yields that overestimate the potential loss from the prepayment. Guidance from this case is limited, however, given that the Equity Committee was disbanded prior to resolution of its motion.

DISCUSSION

The AMR decision, as affirmed by the Second Circuit, and the School Specialty and GMX decisions are in accord that the right to payment of a make-whole premium is governed by applicable state law and the plain language of the parties' agreement. The courts discussed above, it appears, made limited or no factual findings as to whether the premium was disproportionate to the lender's loss.

The School Specialty and AMR decisions could potentially shape the market for interest protection in distressed loans. Conventionally, bond indenture provisions lack the clarity the School Specialty and AMR Courts found conclusive. Lenders across the board, however, may take advantage of the favorable case law and the prospect of limited litigation cost and demand make-whole premiums, especially where the costs of negotiating detailed, unambiguous terms are relatively low and the potential upside is high. Enabling more restructuring and greater access to credit market may persuade courts to follow the lead of School Specialty and AMR and defer to the bargained-for agreement between sophisticated parties.

No doubt, unsecured creditors and equity holders will continue to battle against outsized make-whole premium payments by insolvent debtors, as did the Equity Committee in the Rotech bankruptcy. However, in jurisdictions where the premiums are viewed as liquidated damages, resort to Bankruptcy Code provisions applicable to unmatured interest and reasonableness, among other arguments rejected in School Specialty and AMR, may be a losing battle. One such battle may present itself if Energy Future Holdings, the troubled power company formerly known as TXU, files for bankruptcy protection to avoid payment of a make-whole premium called for under its indentures in an insolvency event.

The legal precedents governing make-whole provisions are being created now. Lenders and borrowers in distressed markets would be wise to monitor the legal landscape in this developing area.

[1] Further analysis of the Delaware bankruptcy court's decision in School Specialty can be found in anĀ executive alert issued by BakerHostetler on May 24, 2013.
[2] A clause in an agreement that creates an event of default if a debtor files for bankruptcy protection or becomes insolvent, among other conditions bearing on a debtor's financial condition.
[3] Contracts in which there are mutual obligations due on the commencement of the bankruptcy case such that the breach by one party excuses performance of the other party. See ReGen Capital I, Inc. v. Halperin, 547 F.3d 484, 488, n.1 (2d Cir. 2008).

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.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

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

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

JD Supra Privacy Policy

Updated: May 25, 2018:

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

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

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

Collection of Information

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

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

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

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

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

How do we use this information?

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

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

How is your information shared?

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

How We Protect Your Information

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

Children's Information

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

Links to Other Websites

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

Information for EU and Swiss Residents

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

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

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

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

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

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

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

California Privacy Rights

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

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

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

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

Access/Correct/Update/Delete Personal Information

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

Changes in Our Privacy Policy

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

Contacting JD Supra

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

JD Supra Cookie Guide

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

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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

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

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

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

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

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

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

Controlling and Deleting Cookies

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

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

Updates to This Policy

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

Contacting JD Supra

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

- hide

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