Not-So-Sudden Impact: Insurers Face A New Breed Of Claim Under the Fair Housing Act (Part 3 of 3)

Pullman & Comley, LLC

Picture of the First Toronto Plane Crash

This is the final article of a three-part series about two recent decisions by federal courts in Connecticut and California: Viens v. America Empire Surplus Lines Ins. Co., No. 3:14cv952 (D. Conn. June 23, 2015), and Jones v. Travelers Cas. Ins. Co. of Am., No. CV 5:13-02390 (N.D. Cal. May 7, 2015). The first article discussed the legal and procedural background of the two cases. The second article discussed the issues these cases raise about the intended scope of the federal Fair Housing Act (“FHA”) and the state laws that are based on it. This article will discuss issues these cases raise about the application of federal law to underwriting decisions, and it will suggest steps that prudent insurers should now be taking.

What’s Wrong With Disparate Impact Claims Against Insurers?

As discussed in part 2, Viens and Jones raise a number of questions about what kinds of activity fair housing statutes are intended to reach—in particular, whether they were meant to impose a duty on insurers to predict and act upon the effects their decisions will have on the intervening acts of others. But the two cases also present the issue of whether the type of liability asserted in Viens and Jones is compatible with the very nature of insurance underwriting.

   Risk Discrimination is Not Race Discrimination

It is an axiom of the insurance industry—and of insurance law—that insurance rates may not be “unfairly discriminatory.” E.g., Alaska Stat. §§ 21.36.090, 21.36.120; D.C. Stat. § 31-2231.13. This actuarial concept of “unfair discrimination” focuses on costs: according to the Casualty Actuarial Society’s “Principles Regarding Property and Casualty Insurance Ratemaking“:

A rate is … notunfairly discriminatory if it is an actuarially sound estimate of the expected value of all future costs associated with an individual risk transfer.

In some states, laws against “unfair discrimination” by property insurers go further, forbidding insurers to distinguish among customers on the basis of factors that have been associated with racially discriminatory “redlining”—for example, the location of a property in a certain neighborhood. But even statutes of that kind make allowances for geographic determinations that result from “sound underwriting and actuarial principles related to actual or reasonably anticipated loss experience.” Colorado R.S.A. § 10-3-1104(f)(XIV).

Consequently, it is possible for insurers to make underwriting decisions that disfavor classes protected by civil rights laws, without engaging in “unfair discrimination” in the actuarial sense. Some years ago, in N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 290 (7th Cir. 1992) (“NAACP“), Judge Easterbrook made precisely this point with the aphorism, “Risk discrimination is not race discrimination.”

The disconnect between these two approaches to defining discrimination is especially pronounced when racial “discrimination” is defined to include (in the words of the U.S. Department of Housing and Urban Development (“HUD”) “actions that have a [racially] discriminatory effect but not a discriminatory intent.” 78 Fed. Reg. 11482. In American Ins. Assoc. v. U.S. Dep’t of Housing & Urban Dev., No. 13-00966 (D.D.C. Nov. 7, 2014) (“AIA“), an industry group’s challenge to HUD’s Discriminatory Effects Rule, the plaintiffs (and, subsequently, the court) cited a 2009 article by one actuary, which argued that there is an “inevitable and irreconcilable conflict between the two standards.” Michael J. Miller, Disparate Impact and Unfairly Discriminatory Rates, Casualty Actuarial Society E-Forum 276, 277 (2009).

The article explained the conflict in this way (id.):

If applied to insurance, a risk/rate factor will potentially be said to have a disparate impact if it more adversely impacts a protected minority class than it does the majority class, regardless of its relationship to underlying costs.

It is reasonable to assume a priori that no protected minority class … will be uniformly distributed throughout any given insurance risk classification plan. This assumption implies that all risk factors used to measure and assess risk are potentially in violation of a disparate impact rate standard, even though each risk factor accurately reflects expected losses and expenses.

[But if] a risk classification plan were changed to eliminate one or more risk factors found to have a disparate impact, the resulting rates would likely be unfairly discriminatory because the rate differences would no longer be based on the underlying insurance costs.

   The Case for Disparate Impact

The groups that advocate holding insurers responsible for disparate impact in underwriting decisions do not generally challenge analyses like Mr. Miller’s. Instead, they answer it by pointing out that underwriting practices incorporate many decisions which are not based on the “expected value of all future costs.” They argue that making those decisions the target of disparate impact litigation will not impair the legitimate, risk-based practices of the insurance industry.

Filed rates, after all, may deviate from strict actuarial models on the basis of insurers’ business goals or judgments—such as a desire to penetrate a new market or change the company’s mix of business; predictions about future legal or regulatory developments; or judgments about the credibility of the risk experience of individual insureds. (Decision-making about goals and judgments of this kind lie at the heart of the current debate over so-called “price optimization.”)

Furthermore, individual underwriters sometimes exercise broad discretion in applying the rate structure to real-life circumstances. In a second challenge to the Discriminatory Effects Rule, Property Casualty Insurers Assoc. of Am. v. Donovan, No. 1:13-cv-08654 (N.D. Ill. Sept. 3, 2014) (“PCIA“), amici curiae supporting the rule cited an author who contended that “half or more of the underwriting decisions may be ultimately made . . . by human underwriters,” rather than in strict accordance with the filed rates. Donald Light, “Transforming Underwriting: From Risk Selection to Portfolio Management,” at 7 (Celent, March 2004).

Consumer groups also cite the distinction between filed rates and underwriting guidelines—the standards provided to agents and brokers, which they use to make an initial decision about whether (and at what price) to offer coverage. (These offers are typically subject to review by the company’s underwriters before the risk is accepted.) In most states, underwriting guidelines are not publicly filed, and some of them include rules that are not part of the filed rate.

For example: the Texas Office of Public Insurance Counsel conducted a survey of underwriting guidelines in 2007. Seventy percent of participating homeowners insurers reported making adverse underwriting decisions “based on whether the property shows ‘Pride of Ownership.'” According to the survey, that kind of “pride” is established by

vegetation that is well manicured, watered and cared for , with any dead vegetation removed. Premises free of any debris, clutter, disabled or unusable vehicles, disabled or unusable appliances, discarded lumber or scattered trash.

Critics say criteria like these make it possible for the biases of individual agents and underwriters to enter into the process of selling insurance—and to do so in ways that negatively affect protected classes without any actuarial justification.

   A Test Case: Jones v. Travelers

Between these two poles is the reality that many of the non-actuarial decisions involved in pricing, marketing and selling insurance are both objectively reasonable and integrally connected to the risk-based calculations of the insurance business. The evidence developed in Jones v. Travelers helps illustrate this point.

The policy at issue in Jones was a product called “Apartment Pac,” which Travelers describes as a “high-volume, low risk, simplified insurance product” that is sold “with minimal involvement of Travelers’ underwriters.” According to the insurer, the relatively lower price of the product reflects its “highly automated, … ‘low touch’ nature”—one aspect of which is that agents are given authority to bind policies for exposures that satisfy underwriting guidelines, without consulting underwriting personnel, and without a physical inspection of the premises.

The underwriting guidelines exclude properties that the company considers specialized risks—risks that are “not within Travelers’ core knowledge and experience.” “Subsidized, public or government-funded [apartment] complexes” are excluded, along with correctional facilities and halfway houses. But the excluded risks also include properties that are not clearly associated with protected classes—such as waterfront complexes with marinas, resort communities and certain buildings over six stories tall.

The exclusion of these risks is not based on actuarial assessments per se. But Travelers produced evidence that insurance for subsidized housing (and for other specialized risks) is generally provided by surplus lines insurers and brokers, and that these companies emphasize the special expertise this market segment requires. Travelers showed, in other words, that it had an objective, reasonable basis to believe that the “Apartment Pac” guidelines allow it to avoid underwriting complexities that are unique to individual market segments, and whose analysis would raise the overall cost of this particular product. In the company’s words, “the fact that a specialized market exists for insurance for subsidized housing is evidence that the risk itself is unique.”

The plaintiffs, on the other hand, asserted that they have been targeted in Travelers’s underwriting guidelines on the basis of “stereotyping or assumptions about landlords and their tenants”—such as a belief, reported in social science research, that subsidized tenants “don’t take care of their property.” Travelers described the “Apartment Pac” product as “geared toward well-run, well-maintained properties,” but a deposition witness testified that properties without subsidized tenants enjoyed a “presumption” of being “well-run.”

Ruling that the issue could go to a jury, the court in Jones focused on the narrow question of the sufficiency of the evidence: it found that the jury could reasonably conclude that subjective biases had crept into the business decisions about whether “Apartment Pac” should cover buildings with subsidized tenants. The court did not discuss more basic questions, such as: Can an insurer establish the “necessity” of its course of conduct without a full-blown, actuarial assessment? Does the FHA limit an insurer’s discretion over whether to enter a market segment in which it does not currently operate?

It is significant, in this regard, that the plaintiffs in Jones had originally obtained their “Apartment Pac” policy by mistake—because they failed to disclose facts that would have disqualified them under the guidelines. The basis for the disparate impact claim against Travelers, therefore, was not that landlords would stop accepting Section 8 participants to avoid losing their policies, but that they would do so to take advantage of a low-cost product that was previously unavailable.

If, like Travelers, an insurer decides to direct a product only to non-specialty risks, does the FHA impose a duty both (i) to review demographic information about the specialty markets, so as to anticipate a possible disparate impact; and (ii) to conduct an actuarial analysis of those markets, to confirm that the exclusion is justified? If so, it might be impossible to create and sell a “low touch” product of the kind Travelers offers. And what if, once the insurer conducts such an analysis, the data suggest that it might safely enter the market after all? Under the FHA, does the company then have an obligation to do so?

Jones was settled before the court could address those questions in a written opinion (and before the case got to a jury). But the court’s preliminary ruling shows that cases of this type—cases in which an insurer allegedly causes its customers to “discriminate” through disparate impact—could seriously burden the conduct of basic functions of the insurance business.

What About McCarran-Ferguson?

These theoretical questions about how deeply the FHA can reach into insurer’s business decisions inevitably fuel disputes involving the McCarran-Ferguson Act, 15 U.S.C. § 1012.

Under McCarran-Ferguson, a state law that “regulat[es] the business of insurance” will “reverse preempt” any federal statute that conflicts with it. More than 30 years ago, the U.S. Court of Appeals for the Second Circuit found, with respect to McCarran-Ferguson:

Congress … had no intention of declaring that subsequently enacted civil rights legislation would be inapplicable to any and all of the activities of an insurance company that can be classified as ‘the business of insurance.’

Spirit v. Teachers Ins. & Annuity Ass’n, 691 F.2d 1054, 1065 (2d Cir. 1982). Following this reasoning, a majority of courts has held that McCarran-Ferguson does not provide insurers with a generalized exemption from federal antidiscrimination laws, including the FHA. E.g., Dehoyos v. Allstate, 345 F.3d 290 (5th Cir. 2003); Moore v. Liberty National Life Insurance Co., 267 F.3d 1209, 1222-23 (11th Cir. 2001); Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351 (6th Cir. 1995); Mackey v. Nationwide Ins., 724 F.2d 419 (4th Cir. 1984).

Nevertheless, the Supreme Court has never addressed that question, and there remains authority to the contrary. E.g., Saunders v. Farmers Ins. Exch., 537 F.3d 961, 967-68 (8th Cir. 2008).

Reverse Preemption for Actuarial Judgments

The case for preemption is strongest where resolution of claims under the federal law would require courts to make judgments that are usually made by state insurance regulators. In NAACP, supra, the U.S. Court of Appeals for the Seventh Circuit rejected a reverse preemption argument against a claim under the FHA. But several years later, in Doe v. Mut. Of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), the same court held that the plaintiffs could not assert a claim against their insurer under the Americans with Disabilities Act, because (id. at 564):

[I]f federal courts are now to determine whether … [policy terms] are actuarially sound and consistent with principles of state law they will be stepping on the toes of state insurance commissioners.

In Doe, the plaintiffs challenged provisions in health insurance policies that capped lifetime benefits for AIDS or AIDS-related conditions at levels that were below the limits for other conditions. For tactical reasons, the insurer had stipulated that it could not show the caps to be “consistent with sound actuarial principles, actual or reasonably anticipated experience, bona fide risk classification, or state law.” Judge Posner nevertheless held that preemption was proper:

[McCarran-Ferguson does not permit] federal courts to determine whether limitations on coverage are actuarially sound and consistent with state law. Even if the formal criteria are the same under federal and state law, displacing their administration into federal court—requiring a federal court to decide whether an insurance policy is consistent with state law—obviously would interfere with the administration of state law. …

It is true that we are not being asked in this case to decide whether the AIDS caps were actuarially sound … . But if the McCarran-Ferguson Act does not apply, then we are certain to be called upon to decide such issues in the next case …. .

Courts have also applied reverse preemption where a federal civil rights law would impose liability for an underwriting practice that state law clearly permits. E.g., Ojo v. Farmers Group, Inc., 356 S.W.3d 421 (Texas 2012). On the other hand, courts reject McCarran-Ferguson arguments in cases, such as Jones, where they conclude that state law “complements” the FHA. See also Nevels v. Western World Ins. Co., Inc., 359 F.Supp.2d 1110, 1122 (W.D. Wash. 2004).

The reasoning of these cases seems particularly relevant to disparate impact claims, because, under HUD’s Discriminatory Effects Rule, insurers defending those claims must show “that the challenged practice is necessary to achieve … legitimate … interests,” 24 CFR § 100.500(c)(2), and that showing will often be based on actuarial judgments. The court in AIA, supra, struck down HUD’s rule, based on its belief that no disparate impact claims may be maintained under the FHA. (The Supreme Court later reached the opposite conclusions in Texas Dept. of Housing v. Inclusive Communities, No. 13–1371 (U.S. June 25, 2015).) In dicta, the court also opined that disparate impact claims against insurers would inevitably run afoul of McCarran-Ferguson:

[E]xpansion of the FHA to include disparate-impact liability [against insurers] would … have a wide-ranging disruptive effect on the pricing and provision of homeowners’ insurance … . Indeed, recognition of disparate-impact liability under the FHA … raises serious concerns regarding widespread federal encroachment upon state insurance regulation.

Essentially the same McCarran-Ferguson argument was rejected in Viens—but the court’s discussion of the issue focused on whether state law preempts civil rights statutes in general, rather than on the features of plaintiffs’ particular claim. (In a footnote, the court did find an “indication” in the CFHA that the FHA is “complementary” to state law.) Thus, it is likely that courts will continue to be divided on this issue. In PCIA (the second industry challenge to HUD’s Discriminatory Effects Rule), the court held that the plaintiffs’ McCarran-Ferguson arguments were not yet ripe for adjudication, and that the issues should be resolved on a case-by-case basis. It also identified some considerations that will distinguish future cases:

While some states require insurers to use risk-based pricing, other states merely permit [it] …. Accordingly, some insurance practices in some states may rest on business justifications rather than actuarially sound principles or state law requirements. Under [Doe, supra], the McCarran-Ferguson Act would not necessarily preclude claims based on these practices because it is not clear that such claims would raise the question of whether the insurer’s practices are actuarially sound and consistent with state law.

As a result of the ruling in PCIA, HUD is currently reviewing the McCarran-Ferguson arguments against its Discriminatory Effects Rule. Even if HUD sticks to its guns, those arguments are likely to be litigated for at least the next several years.


Some of Justice Kennedy’s language in Inclusive Communities might end up making it harder for plaintiffs to succeed in disparate impact claims against insurers—especially claims, like Viens and Jones, based on third-party transactions. But Inclusive Communities is still a shot in the arm for disparate impact litigation in general, and the issues presented by third-party cases are too novel and complex to be resolved definitively any time soon. Insurers should expect cases like Viens and Jones to be around for years.

That means insurers should be reviewing their underwriting guidelines now. The point is not necessarily to conduct a race- or gender-based analysis (which might be unlawful in many cases), but to ensure that the policies and choices which complement purely actuarial analyses reflect business judgments that are clear, rational and defensible.

Vague terms connoting value judgments—such as “pride of ownership” or “clutter”—should be eliminated, because plaintiffs can attack those terms (sometimes with justice) as coded invitations to unlawful discrimination. For the same reason, agents’ discretion to interpret the operative language should be limited, and insurers should consider offering literature or training about how to apply guidelines in a non-discriminatory way.

Insurers should also apply an understanding of antidiscrimination laws to the way they use consumer data—especially data from outside sources—in marketing and pricing decisions. The FHA prohibits discrimination on the basis of race, color, religion, sex, familial status, national origin or disability. State laws further bar distinctions based on such characteristics as source of income, sexual orientation, gender expression and genetic information. Cal. Gov. Code § 12955. If insurance decisions are based on data points that can be characterized as surrogates for any of these prohibited categories, those decisions might expose the company to complex civil rights claims.

By building a record that shows a sound “business justification” for their policies, insurers can prepare to defend future cases on the facts. That record will also improve the chances that some of the legal arguments discussed in this article will succeed.

Image source: Williams James (Wikimedia)

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.

© Pullman & Comley, LLC | Attorney Advertising

Written by:

Pullman & Comley, LLC

Pullman & Comley, LLC on:

Readers' Choice 2017
Reporters on Deadline

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

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

JD Supra Privacy Policy

Updated: May 25, 2018:

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

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

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

Collection of Information

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

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

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

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

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

How do we use this information?

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

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

How is your information shared?

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

How We Protect Your Information

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

Children's Information

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

Links to Other Websites

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

Information for EU and Swiss Residents

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

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

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

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

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

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

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

California Privacy Rights

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

You can make a request for this information by emailing us at or by writing to us at:

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

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

Access/Correct/Update/Delete Personal Information

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

Changes in Our Privacy Policy

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

Contacting JD Supra

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

JD Supra Cookie Guide

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

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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

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

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

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

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

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

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

Controlling and Deleting Cookies

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

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

Updates to This Policy

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

Contacting JD Supra

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

- hide

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