NLRB Continues Attack on Class and Collective Action Waivers

Littler
Contact

There seems to be no end in sight to the standoff between the National Labor Relations Board and at least a majority of the federal courts over the legality of arbitration agreements that require employees to waive the right to lead or participate in class or collective actions.  The NLRB has issued a barrage of cases in recent months reaffirming and expanding its controversial theory that this requirement violates the National Labor Relations Act, notwithstanding Supreme Court precedent upholding such waivers under the Federal Arbitration Act in cases involving other statutes.  In addition, despite losing twice on this issue at the Fifth Circuit Court of Appeals, the NLRB has continued to advocate its theory in that and other circuits.  Meanwhile, the appellate courts remain deluged with petitions to review NLRB decisions invalidating class waivers and the agreements in which they are contained.  These and related developments are discussed below.

NLRB Decisions

In D.R. Horton, Inc., 357 NLRB No. 184 (2012), a 3-2 majority of the NLRB decided that requiring employees to agree to a class and collective action waiver in an arbitration agreement violates the NLRA because it deprives employees of the right to engage in protected concerted activity.  The Fifth Circuit reversed this decision, however, in view of the Supreme Court precedent upholding class and collective action waivers.  D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) (enforcement of NLRB order denied in relevant part).

The NLRB reaffirmed its D.R. Horton theory in a later case, Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Once again, the Fifth Circuit rejected the NLRB’s decision.  Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015) (enforcement of NLRB order denied in relevant part).  However, the NLRB has announced that it intends to petition the court for an en banc rehearing of this case. 

Relying on a policy of "nonacquiescence,” the NLRB has refused to defer to the rulings of the Fifth Circuit in D.R. Horton and Murphy Oil, and it has continued to issue numerous decisions reaffirming the principle established in those cases.  In doing so, the NLRB has rejected numerous defenses raised by employers.  For example, the NLRB has held that:

  • The six-month statute of limitations in Section 10(b) of the NLRA is ineffective in such cases, even if employees signed the arbitration agreement more than six months before an unfair labor practice charge was filed with the Board.  See PJ Cheese, Inc., 362 NLRB No. 177 (2015).
  • An opt-out provision in an arbitration agreement is also ineffective and itself an additional burden on employees’ protected rights to pursue collective action.  See On Assignment Staffing Services, Inc., 362 NLRB No. 189 (2015).  Note, however, that the Ninth Circuit arguably has reached a contrary conclusion in the Johnmohammadi decision discussed below.
  • Even if an arbitration agreement does not include an express waiver of class and collective actions, it is unlawful if the employer interprets the agreement to bar such actions by moving in court to compel arbitration on an individual basis.  See Century Fast Foods, Inc., 363 NLRB No. 97 (2016).
  • The fact that an arbitration agreement permits employees to file claims with administrative agencies, which could then pursue a judicial remedy on behalf of employees as a group, is not an effective defense because access to administrative agencies is not the equivalent of access to a judicial forum where employees themselves may seek to litigate their claims on a collective basis. See SolarCity Corporation, 363 NLRB No. 83 (2015).  Note, however, that the Eighth Circuit has reached a contrary conclusion in the Owen v. Bristol Care decision discussed below.
  • An arbitration agreement that precludes collective action in all forums is unlawful even if entered into voluntarily.  See Ross Stores, Inc., 363 NLRB No. 79 (2015).

The foregoing are only examples of the employer defenses rejected by the NLRB in the numerous cases issued by that agency involving the D.R. Horton theory.

Supreme Court Precedent

The NLRB's approach to this issue appears to be on a collision course with a series of decisions of the U.S. Supreme Court on the enforceability of class and collective action waivers under the Federal Arbitration Act.  In AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), the Court ruled that FAA enforcement of a class action waiver in a standard form contract containing an arbitration agreement overrides a state law prohibiting mandatory arbitration and class action waivers as unconscionable.  Subsequently, the Court ruled in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012), that arbitration agreements should be enforced according to their terms, even for claims under federal statutes, unless the FAA's mandate has been overruled by a “contrary congressional command.” 

In addition, the Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013), that class action waivers in arbitration agreements are enforceable under the FAA, even if the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery and arbitration is economically unfeasible.  And in the most recent decision, DirecTV, Inc. v. Imburgia, 136 S.Ct. 463 (2015), the Court upheld a class action waiver in the arbitration provision of a service agreement under the FAA, rejecting a claim that the waiver could be invalidated by state law. 

It appears likely that the Supreme Court will ultimately resolve this apparent conflict between its precedent under the FAA and the NLRB's theory under the NLRA.  At least until the recent passing of Justice Scalia, it seemed unlikely that the Court would defer to the NLRB in light of that precedent, although this assessment could change if there is a shift in the control of the Supreme Court.  But in several other contexts and over the course of many years, the Supreme Court has reined in the NLRB when that agency’s remedial preferences trenched on other federal statutes. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) and cases cited therein. 

It should be noted, however, that a confrontation over this issue might be avoided if a change occurs in the control of the NLRB. In this regard, strong dissents by two Board members in numerous cases upholding the D.R. Horton theory suggest that it could be rejected if such a change in control occurs next year as a result of the upcoming presidential election.

Pending D.R. Horton Appeals

At last count, at least 28 cases involving the D.R. Horton issue were pending in the federal appellate courts on review from decisions of the NLRB.  Under federal law, employers have three appellate court options when seeking review of a decision of that agency—(1) the circuit where the unfair labor practice allegedly took place; (2) any circuit in which the employer transacts business; or (3) the D.C. Circuit. 29 U.S.C. §160(f).  Not surprisingly, national companies have favored the Fifth Circuit in view of that court’s decisions in the D.R. Horton and Murphy Oil cases.  As a result, at least 20 cases are pending in that circuit.  The remaining cases are divided among four other circuits—the Ninth (four cases), the Eighth (two cases), the Third (one case); and the D.C. Circuit (one case).  All of these cases are pending on petitions for review filed by employers from adverse decisions of the NLRB involving essentially the same issue.

This appellate scene is highly unusual and might be unprecedented.  As a result of the sheer volume of appeals, the NLRB has recently taken the unusual step of requesting the Fifth Circuit to hold in abeyance many of the cases pending in that circuit until the Board’s petition for an en banc rehearing of the Murphy Oil decision has been resolved. So far, it appears the court is complying with that request.   

In a favorable development for employers, when oral argument was recently held in one of the pending Eighth Circuit cases, that court reportedly declined to hear argument on the D.R. Horton issue in view of contrary circuit law. Cellular Sales of Missouri v. NLRB, Case Nos. 15-1860, 15-1620 (8th Cir.). It appears that the contrary circuit law was established in a private party case, Owen v. Bristol Care, discussed below.

Private Party Cases

The NLRB’s D.R. Horton theory has also been rejected by federal appellate courts in several cases involving employment-related class or collective actions filed by private parties, typically in the context of motions to compel arbitration.  For example:

  • The Second Circuit upheld a class action waiver in an arbitration agreement and refused to defer to the NLRB’s decision in D.R. Horton. Sutherland v. Ernst & Young, 726 F.3d 290 (2d Cir. 2013).
  • The Eighth Circuit upheld a class action waiver in such an agreement, stating it did not owe any deference to the NLRB’s reasoning in D.R. Horton.  Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
  • The Eleventh Circuit relied on the Fifth Circuit’s decision rejecting the D.R. Horton theory in finding that the FLSA does not prohibit an employer from including a collective action waiver in an arbitration agreement.  Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014). 
  • The Ninth Circuit found that it was not necessary to rule on the Board’s D.R. Horton theory in granting an employer’s motion to compel arbitration of wage and hour claims, because the plaintiff had failed to raise that argument before the district court.  However, the court noted in detail that the Eighth Circuit and several federal district courts had refused to follow the Board’s theory. Richards v. Ernst & Young, LLP, 744 F.3d 1072 (9th Cir. 2013).

Subsequently, a different Ninth Circuit panel issued two decisions that raised the D.R. Horton theory but avoided deciding whether it was valid or must otherwise be limited.  In Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1077 (9th Cir. 2014), the court granted an employer’s petition to compel arbitration of an overtime claim because the employee could have chosen to opt out of an arbitration agreement during a 30-day window period, but chose not to do so.  The court stated that having freely elected to arbitrate employment-related disputes on an individual basis, the employee could not claim that enforcement of the agreement violated the Norris-LaGuardia Act or the NLRA.  Thus, the court distinguished D.R. Horton, which by its terms addressed only mandatory pre-dispute agreements.  In the companion Davis decision, 755 F.3d 1089 (9th Cir. 2014), the court reversed a federal district court’s denial of an employer’s motion to compel arbitration and remanded the case, but declined to state an opinion on whether a mandatory arbitration program would violate the NLRA.

Until recently, the NLRB did not participate in private party cases because they did not involve review of a decision of that agency.  However, the NLRB has recently changed course by filing amicus curiae briefs in such cases in support of its theory.  So far, the Board has filed briefs in three of these cases, all of which are still pending.  Morris v. Ernst & Young, Case No. 13-16599 (NLRB Amicus Brief filed 11/6/2015, 9th Cir.); Lewis v. Epic Systems Corp., Case No. 15-2997 (NLRB Amicus Brief filed 12/16/15, Motion granted for NLRB to participate in oral argument 1/12/16, 7th Cir.); and Patterson v. Raymours Furniture Co., Case No. 15-2820 (NLRB Amicus Brief filed on 12/23/15, 2d Cir.).

The Epic Systems case referred to above is unusual because the federal district court had relied on the NLRB’s D.R. Horton theory to rule against the employer notwithstanding the Supreme Court precedent described above.  In addition, a federal district court in California recently reached a similar decision.  Totten v. Kellogg Brown & Root, LLC, Case No. ED CV 14-1766, 2016 WL 316019 (1/22/16 C.D. Cal.).   

NLRB’s Appellate Strategy

It is clear that the NLRB will not defer to the Fifth Circuit’s view of the law as set forth in the court’s D.R. Horton and Murphy Oil decisions.  Instead, the Board could seek to obtain a ruling from the U.S. Supreme Court that the NLRA or Norris-LaGuardia Act overrides the FAA on the issue of class and collective action waivers.

In pursuing its strategy, the NLRB will follow its policy of “nonacquiescence,” which involves a refusal to defer to adverse decisions of the federal appellate courts except as to “the law of the case,” while eventually attempting to advance the issue to the Supreme Court’s docket by filing a petition for certiorari with that court.  In some other cases in the past, this process has lasted for several years.  And, of course, an employer on the losing end of a future circuit court of appeal ruling likewise could then claim that the circuits were split on this issue warranting Supreme Court review and settlement of the issue.

Under normal circumstances, the NLRB would be required to show a “split in the circuits” before the Solicitor General will approve filing a petition for certiorari with the Supreme Court. That split may emerge after decisions are announced in any of the pending cases discussed above, and, as noted, a split would mean that an employer that lost on the D.R. Horton issue could itself seek review.  The NLRB’s amicus appearances in private party cases appear to be aimed at advancing the ball toward a split that it hopes will develop.

Fifth Circuit’s View of “Nonacquiescence”

One further complication for the NLRB involves a position asserted by the Fifth Circuit in the Murphy Oil decision regarding the policy of nonacquiecence described above.  In that case, the employer argued that the court should hold the NLRB in contempt for its “defiance” of the court’s decision in D.R. Horton.  The court declined to condemn the Board’s nonacquiescence, but it stated that an “administrative agency’s need to acquiesce to an earlier circuit court decision when deciding similar issues in later cases will be affected by whether the new decision will be reviewed in that same circuit.”  In addition, the court added the observation that the “Board may well not know which circuit’s law will be applied on a petition for review.”

These statements by the Fifth Circuit suggest that an employer involved in a D.R. Horton case might consider notifying the Board during the administrative proceedings that it would seek appellate review of an adverse decision in that circuit—assuming it would have that option.  As discussed above, this would include any employer that transacts business in the Fifth Circuit, or an employer involved in a case where the unfair labor practice allegedly took place in that circuit.

NLRB Rulings on Related Issues

In addition to deciding that employees cannot be required to agree to class and collective action waivers in an arbitration agreement, the NLRB has issued several decisions involving two related issues.

First, the Board has ruled in numerous cases that an arbitration agreement was unlawful because complicated language might cause employees to construe the agreement as prohibiting them from filing unfair labor practice charges with the NLRB.  For example, see Everglades College, Inc., 363 NLRB No. 73 (2015).  This is essentially a drafting problem that employers should avoid because it could complicate an appeal to the federal courts from an NLRB decision on the issue of class and collective action waivers.  For example, although the employer prevailed on the main issue in the appeal of the D.R. Horton case as discussed above, the court also found that the employer had violated the NLRA in that case because employees would interpret the arbitration agreement as prohibiting the filing of charges with the NLRB.

Second, the NLRB has decided that an employer could not require employees to agree to a class and collective action waiver in a personnel document that did not also include an agreement to arbitrate employment-related claims.  For example, see Logisticare Solutions, Inc., 363 NLRB No. 85 (2015).  Such language should be avoided because the absence of an agreement to arbitrate claims precludes reliance on the FAA, which is critical in the defense of such cases.   

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.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler 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.