PACA and Real Property: Follow the Fruit

by K&L Gates LLP
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Reprinted with permission from the Washington State Bar Association

[1] Originally enacted in 1930, the Perishable Agricultural Commodities Act (“PACA” or the “Act”) has been amended over the years in a number of ways to address the changing landscape of the produce industry. Developing case law and industry reaction has further expanded the reach of the Act to impact property and parties never mentioned in the Act. This article discusses the history of PACA and how cases interpreting the Act can affect real estate and related transactions.

PACA History
Congress enacted PACA in order to protect producers of “perishable agricultural commodities” from the unfair activities of commission merchants, dealers, and brokers who would wrongfully reject shipments of such commodities during periods of declining prices. George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 990 (2nd Cir. 1974). As originally enacted, PACA contained two major protections. First, the Act prohibited certain unfair practices by “commission merchants,” “brokers,” or “dealers,” including unfair counting and weighing, rejection, or dumping of perishable agricultural commodities. 7 U.S.C. § 499b; In re Magic Rest., Inc., 205 F.3d 108, 110 (3rd Cir. 2000). Second, the Act mandated a licensing program for commission merchants, brokers, and dealers of perishable agricultural commodities, providing the Secretary of Agriculture with the power to refuse, suspend, or terminate a license based on conduct in violation of Section 499b of the Act, among other things. 7 U.S.C. §§ 499c, 499d, 499h; Magic Rest., 205 F.3d at 110-11.

Although PACA was an improvement in the protection of agricultural suppliers, by the early 1980s certain shortcomings in the Act had become apparent. The problems reflected changes in the financial structure of the agriculture industry: (a) climbing overhead costs, including the costs of debt servicing, resulting in an increase in delayed payments; (b) an increase in hidden security agreements which resulted in diversion of money away from suppliers; and (c) increases in business failures and bankruptcies with no meaningful recovery to suppliers. Regulations under the Perishable Agricultural Commodities Act, 49 Fed. Reg. 45,735, 45,737 (Nov. 20, 1984). As the legislative history of the Act reflects, sellers of agricultural commodities were “unsecured creditors and receive little protection in any suit for recovery of damages where a buyer has failed to make payment as required by the contract.” H.R. REP. (Agric. Comm.) No. 98-543 (1983) at 3. To remedy these shortcomings, in 1984 Congress amended PACA to create a trust for the benefit of unpaid sellers and suppliers of perishable agricultural commodities (the “PACA Trust”). Id. at 1; 7 U.S.C. § 499e(c)(1). The PACA Trust was modeled after a similar provision that was added to the Packers and Stockyards Act, 7 U.S.C. § 181 et seq. H.R. REP. No. 98-543 at 2.

Perishable Agricultural Commodities
The PACA Trust, like other sections of the Act, applies only to transactions involving the “perishable agricultural commodities.” The Act itself generally defines these as fresh fruits and fresh vegetables of every kind and character, “whether or not frozen or packed in ice.” 7 U.S.C. § 499a(b)(4). The federal regulations implementing PACA further define “fresh fruits and fresh vegetables”:

Fresh fruits and fresh vegetables include all produce in fresh form generally considered as perishable fruits and vegetables, whether or not packed in ice or held in common or cold storage, but does not include those perishable fruits and vegetables which have been manufactured into articles of food of a different kind or character. The effects of the following operations shall not be considered as changing a commodity into a food of a different kind or character: Water, steam, or oil blanching, battering, coating, chopping, color adding, curing, cutting, dicing, drying for the removal of surface moisture; fumigating, gassing, heating for insect control, ripening and coloring; removal of seed, pits, stems, calyx, husk, pods rind, skin, peel, et cetera; polishing, precooling, refrigerating, shredding, slicing, trimming, washing with or without chemicals; waxing, adding of sugar or other sweetening agents; adding ascorbic acid or other agents to retard oxidation; mixing of several kinds of sliced, chopped, or diced fruit or vegetables for packaging in any type of containers; or comparable methods of preparation.

7 C.F.R. § 46.2(u). One might think that this definition is expansive enough to cover any kind of agricultural product, but there are decisions which hold that certain agricultural products are not covered by PACA. See Regal Mktg., Inc. v. All Am. Farms, Inc., (No. R-99-0108, 1999 WL 33314097 (USDA Nov. 10, 1999)) (citing a number of Department of Agriculture decisions finding that peanuts, pecans, coconuts and chestnuts are not covered by PACA). Other decisions address the issue of whether agricultural products are “fresh” or have been manufactured into food of a different kind or character. See Endico Potatoes, Inc. v. CIT Grp./Factoring, Inc., 67 F.3d 1063, 1071 (2d Cir. 1995) (products containing less than ninety percent fresh ingredients, such as cream cheese with scallions, cole slaw, and potato salad are not entitled to PACA protection); In re L. Nat. Foods Corp., 199 B.R. 882, 888-90 (Bankr. E.D. Pa 1996) (dried apricots and prunes are not entitled to PACA protection); In re Fleming Cos., Inc., 316 B.R. 809, 813-14 (D. Del. 2004) (canned fruit not entitled to PACA protection). A number of decisions formerly addressed the issue of whether french fries were entitled to PACA protection, but those decisions were overruled in 2003 when the PACA regulations were amended to include “battering and coating” as processes which do not change the product into food of a different kind or character. See Fleming Cos., Inc. v. USDA, 322 F. Supp. 2d 744, 752 (E.D. Tex. 2004); aff’d 164 Fed. App’x. 528 (5th Cir. 2006).

Commission Merchants, Dealers, and Brokers
The PACA Trust also applies only to perishable agricultural commodities received by a commission merchant, dealer, or broker. A commission merchant is a person “engaged in the business of receiving in interstate or foreign commerce any perishable agricultural commodity for sale, on commission, or for or on behalf of another.” 7 U.S.C. § 499a(b)(5). A broker is a person “engaged in the business of negotiating sales and purchases of any perishable agricultural commodity in interstate or foreign commerce for or on behalf of the vendor or the purchaser,” but does not include independent agents “negotiating sales for and on behalf of the vendor and if the only sales of such commodities negotiated by such person are sales of frozen fruits and vegetables having an invoice value not in excess of $230,000 in any calendar year.” 7 U.S.C. § 499a(b)(7); 7 C.F.R. § 46.2(n).

In contrast, a dealer is generally a “person engaged in the business of buying or selling in wholesale or jobbing quantities . . . any perishable agricultural commodity in interstate or foreign commerce.” 7 U.S.C. § 499a(b)(6). Wholesale or jobbing quantities are “aggregate quantities of all types of produce totaling one ton (2,000 pounds) or more in weight in any day shipped, received, or contract to be shipped or received.” 7 C.F.R. § 46.2(x). There are exceptions to the general definition of “dealer.” First, no producer is considered a dealer with respect to sales of perishable agricultural commodities raised by that person. 7 U.S.C. § 499a(b)(6)(A); 7 C.F.R. § 46.2(m)(3). Second, no person buying perishable agricultural commodities solely for sale at retail is considered a dealer until the invoice cost of such purchases in any calendar year are in excess of $230,000. 7 U.S.C. § 499a(b)(6)(B); 7 C.F.R. § 46.2(m)(2). Finally, no person buying any perishable agricultural commodity (other than potatoes) for canning or processing within the state they are grown is a dealer unless the product is frozen, packed in ice, or consists of cherries in brine. 7 U.S.C. § 499a(b)(6)(C); 7 C.F.R. § 46.2(m)(4); Anthony D‘Acquisto v. Fruit Cups, Inc., (No. 2-5772, 1981 WL 32227. **1-2 (USDA Dec. 14, 1981)). If a person is not otherwise considered a “dealer” for PACA purposes, but secures a license under 7 U.S.C. § 499c, the person is considered a dealer while the license is in effect. 7 U.S.C. § 499a(b)(6).

The definition of “dealer” has since been expanded to cover restaurants which meet the “wholesale and jobbing quantities” and “$230,000” per year requirements. See e.g., J. Ambrogi Food Distribution Inc. v. Top Dog America’s Bar & Grille of PA, Inc., No. Civ.A.05-337, 2005 WL 1655891, at **4-5 (E.D. Pa. July, 14 2005). Furthermore, some commentators suggest that the definition of “dealer” could be expanded to include prisons, hospitals, nursing homes, and other large purchasers of PACA commodities. See Magic Rest., 205 F.2d at 117 (Rendell, J. dissenting); 3 HOWARD RUDA, ASSET BASED FINANCING; A TRANSACTIONAL GUIDE, § 30.07[2] (Matthew Bender 2018). PACA rights and obligations can flow through the manufacturing and distribution chain, often to parties who are not obviously significant participants in the produce industry.

PACA Trust
The PACA Trust is a nonsegregated “floating” trust comprised of (a) perishable agricultural commodities received in all transactions, (b) all inventories of food and other products derived therefrom; and (c) all receivables or proceeds from the sale of such commodities and food or products derived therefrom. 7 C.F.R. § 46.46(b); 7 U.S.C. § 499e(c)(2). However, the PACA Trust provisions do not apply to transactions between members of agricultural cooperatives and the cooperative. 7 U.S.C. § 499e(c)(2); H.R. REP. 98-543 at 6 (explaining that such transactions are essentially “in-house” and free from the difficulties of normal commercial dealings). The PACA Trust is created immediately upon transfer of ownership, possession, or control of the covered goods. 7 C.F.R. § 46.46(c). Parties who comply with the PACA Trusts’ requirements are eligible beneficiaries of the trust until they are paid in full. Id. Payments made by a later dishonored check are not considered paid. 7 U.S.C. § 499e(c)(2). In some courts, “full payment” may include attorneys’ fees (if they are provided for by the contract between the parties), interest, and shipping fees. Country Best v. Christopher Ranch, LLC, 361 F.3d 629, 632 (11th Cir 2004); Prestige Produce, Inc. v. Silver Creek, Inc., No. CV 04-491, 2006 WL 581262, at *5 (D Idaho Mar. 9, 2006); Lincoln Diversified, Inc. v. Mangos Plus, Inc., No 98 Civ 5593 RWS, 2000 WL 890198, at *2 (S.D.N.Y. July 5, 2000).

Preservation of PACA Trust Benefits
Although the PACA Trust arises automatically, potential beneficiaries will lose the benefits of the trust unless they comply with the Act’s notice and timing requirements. The Act provides two methods by which a beneficiary can preserve its rights. Originally, the unpaid supplier, seller, or agent could give a written notice of intent to preserve the PACA Trust benefits and include the following information for each shipment (a) the names and addresses of the trust beneficiary, seller-supplier, commission merchant, or agent and debtor; (b) the date of the transaction, commodity, invoice price, and terms of payment (if different than provided by the regulations), (c) the date of receipt of notice that a payment was dishonored (if applicable), and (d) the amount past due and unpaid. 7 C.F.R. § 46.46(f). The written notice has to be given within thirty calendar days (1) after the expiration of the time for payment under PACA’s regulations (in the case of a simple sale, ten days after receipt and acceptance per 7 C.F.R. § 46.2(aa)); (2) after expiration of the time for payment agreed to by the parties in writing before entering into the transaction (which cannot be longer than thirty days and still qualify for trust protection (7 C.F.R. § 46.46(c)(2)); or (3) after the supplier, seller or agent receives notice that a payment has been dishonored. 7 C.F.R. § 46.46(f)(2); 7 U.S.C. § 499e(c)(3).

A second method of preserving PACA Trust benefits, available only to PACA licensees, was added in 1995. Licensees may include the following language in their invoice or other billing statement, along with the terms of payment if they differ from the PACA regulations and the parties have agreed to such terms in writing before the transaction:

The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.

7 C.F.R. § 46.46(f)(3)(i); 7 U.S.C. § 499e(c)(4). This “invoice” method of PACA Trust preservation has since been extended to include parties using Electronic Data Interchange (“EDI”) methods of transmitting transaction information 7 C.F.R. §§ 46.46(f)(4) and (f)(5). Significantly, however, nothing in the Act requires a PACA “notice” to be recorded in any real estate or other central filing office, such as a secretary of state’s office. Therefore, unlike mechanics liens or security interest, the existence or extent of PACA Trust claims may not be information that is publicly ascertainable (although the U.S.D.A. Agricultural Marketing Service does maintain a publicly searchable database of PACA licensees, that database does not contain information regarding payment statistics).

PACA Trust Impact on Real Estate
Use and commingling of PACA Trust assets is not per se prohibited. 7 C.F.R. § 46.46(b). The party claiming the benefit of the PACA Trust must establish the details of the transaction, but detailed tracing is not required; pro-rata distribution to all claimants establishing their rights is contemplated. 49 Fed. Reg. at 45,738. The onus is on the commission merchant, broker, or dealer to preserve the trust assets and assure that all eligible transactions are covered, even if disputed. Id. Failure to maintain PACA Trust assets is a violation of the Act, 7 U.S.C. § 499b, and can subject individuals in a position of control of trust assets to personal liability, including, possibly, denial of a bankruptcy discharge. See Nicole Leonard, The Unsuspecting Fiduciary: The Curious Case of PACA and Personal Liability, 25-MAY AM. BANKR. INST. J. 32 (2006); Michael D. Sousa, Are You Your Produce Vendor’s Keeper? The Perishable Agricultural Commodities Act and § 523(a)(4) of the Code, 15 J. BANKR. L. & PRAC. 6, Art. 3 (Dec. 2006). This potential for liability extends beyond the produce company’s principals because of the PACA Trust’s expansive reach and its potential to impact (i.e. “infect”) property received or possibly even owned by other parties.

The Broad Extent of “PACA Proceeds”
Because the PACA Trust extends beyond the produce itself to “products and proceeds”, courts have been willing to “follow the fruit” and extend the PACA Trust to other assets acquired with the use of PACA Trust proceeds. As the Second Circuit explained in one of the first cases fully addressing the issue:

Throughout this opinion, we refer to assets acquired with the cash proceeds of trust property as being included among the “proceeds” of that property. The same result follows, however, whether one views an asset purchased with the cash proceeds of a trust property as a second-generation “proceed” (thereby falling within the statutory definition of trust property), or as the product of a wrongful dissipation of trust assets (thereby becoming a part of the trust by operation of law).

In re Kornblum & Co., Inc., 81 F.3d 280, 284 n.2 (2nd Cir. 1996). In Kornblum, a commission merchant/dealer had obtained certain commercial real estate cooperative certificates prior to entering into transactions with the complaining PACA Trust creditors. When the dealer eventually ended up in bankruptcy, its trustee tried to sell the membership certificates and the creditors objected on the basis that the maintenance payments on the units were paid with PACA Trust proceeds and therefore imposed themselves with the PACA Trust. Considering the matter on appeal, the court held that a party claiming that assets are not imposed with the PACA Trust must establish that: (1) no PACA Trust existed when the assets were purchased; (2) even though a PACA Trust existed at that time, the assets were not purchased with trust assets; or (3) although a PACA Trust existed when the assets were purchased and the assets were purchased with PACA Trust assets, all unpaid sellers were thereafter paid in full prior to the transaction in question, thereby terminating the PACA Trust. Subsequent cases have also imposed the PACA Trust on real property and other assets. See, e.g., Decision & Order, The Bank of New York, as Trustee, for the benefit of CWMBS, Inc. v. Kim, Index No. 1443-2008 (N.Y. Sup. Ct. filed Apr. 3, 2013) (County of Rockland); Mid-Valley Produce Corp. v. 4-XXX Produce Corp., 833 F. Supp. 193 (E.D.N.Y. 1993); Chiquita Fresh N. Am., LLC v. Fierman Produce Exch., Inc., 198 F. Supp. 3d 171 (E.D.N.Y. 2016); Epic Fresh Produce, LLC v. Olympic Wholesale Produce, Inc., 2018 WL 1311994 (N.D. Ill. Mar. 7, 2018). The Epic Fresh opinion is particularly instructive as to the possible reach of the PACA Trust. In Epic Fresh, the District Court imposed a preliminary injunction against transfer of any of an extensive list of assets, including commercial and residential real property, office equipment, automobiles, severance and retirement benefits, and bank accounts. 2018 WL 1311994 at *7-10.

The cases have further held that third parties (often lenders, although the cases are not confined to lending relationships) may be forced to turn over an asset or disgorge funds received that are imposed with the PACA Trust, unless the recipient can establish a defense. The most common defense, developed from general trust principals, is commonly identified as the bona fide purchaser defense: i.e., that the party received the asset or obtained the payment (a) for value and (b) without notice of the breach of the trust. See Restatement (Second) of Trusts § 284 (1959); Consumers Produce Co., Inc. v. Volante Wholesale Produce, Inc., 16 F.3d 1374, 1382 (3rd Cir. 1994); Nickey Gregory Co., LLC v. AgriCap, LLC, 597 F.3d 591, 606 (4th Cir. 2010).

“Value” is given if “money is paid or other property is transferred or services are rendered as consideration for the transfer of trust property.” Restatement (Second) of Trusts § 298; Endico Potatoes, 67 F.3d at 1068. See also Mid-Valley Produce, 833 F. Supp. at 196 (wife’s residence imposed with PACA Trust to the extent she received PACA Trust proceeds without providing consideration). A secured lender may receive an ordinary loan payment “for value”. See, e.g., Consumers Produce, 16 F.3d at 1380 (citing Restatement (Second) of Trusts § 304). However, seizure or foreclosure would not constitute a transfer for value. See, e.g. C.H. Robinson Co. v. Trust Co. Bank, N.A., 952 F.2d 1311, 1315 (11th Cir. 1992) (distinguishing between ordinary loan payments and enforcement of a security interest); Consumers Produce, 16 F.3d at 1382 (same).

What constitutes a transfer “without notice” is not completely consistent across the reported cases. The Third Circuit in Consumers Produce focused on Section 297(a) (at comment a) of the Second Restatement of Trusts which considers both actual and constructive notice of a breach, and includes a duty to inquire whether the trustee is breaching the PACA Trust:

A third person has notice of a breach of trust not only when he knows of the breach, but also when he should know of it; that is when he knows facts which under the circumstances would lead a reasonably intelligent and diligent person to inquire whether the trustee is a trustee and whether he is committing a breach of trust, and if such inquiry when pursued with reasonable intelligence and diligence would give him knowledge or reason to know that the trustee is committing a breach of trust.

Consumers Produce, 16 F.3d at 1383. Other courts have instead referred to the current Restatement (Third) of Trusts Section 108, which provides that a third party is neither required to inquire into the extent of a trustee’s power nor ensure that assets transferred to the trust are properly applied to trust purposes. Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., 188 F. Supp. 3d 1097, 1124 (D. N.M. 2016); Spada Properties, Inc. v. Unified Grocers, Inc., 38 F. Supp. 3d 1223, 1235 (D. Or. 2014). Under either standard, however, a party, such as a lender, with significant information about unpaid PACA claims may be considered to have notice of a breach of the PACA Trust. Compare Consumers Produce, 16 F.3d at 1385 (under Restatement (Second) of Trusts the lender undertook a reasonable inquiry and did not know and should not have known of the breach of the PACA Trust) with Nickey Gregory, 597 F.3d at 605-606 (lender that had undertaken an examination of borrower’s financial condition had notice of substantial unpaid PACA Trust obligations).

Effect on Title Insurance
Following cases like Kim and Chiquita Fresh, title insurance companies have become increasingly concerned that PACA Trust claims, which are not required to be recorded in any real estate records, could nonetheless impact lender’s and owner’s title policies. Accordingly, a number of national title companies have begun to include title exceptions for PACA Trust claims (as well as claims under similar statutes such as the Packers and Stockyards Act) on such policies. Each title company will likely have its own underwriting criteria and may be willing to remove the exception from the final policy in certain circumstances, such as proof that the PACA Trust does not apply (possibly using a Kornblum type of analysis) or, in the case of a lender’s title policy, upon receiving an affidavit of the owner and/or upon receiving an indemnity from the party seeking removal.

Conclusion
Although PACA was originally enacted in 1930, its impact on real estate transactions has only recently emerged. As discussed herein, evolving case law has given rise to uncertainty as to the reach of the PACA Trust and the assets affected thereby. In a lending context, this uncertainty has given rise to additional drafting and due diligence considerations and, in a title insurance context, the changing legal landscape has prompted title companies to add a standard exception to their owner’s and lender’s policies for PACA and similar federal and state statutes. Given these new developments, real estate practitioners may want to consider early on in a transaction how PACA and similar statutes may affect their client’s rights and interests.


NOTES:

[1] The authors wish to acknowledge the substantial contribution of Marisa N. Bocci of K&L Gates to these materials.

 

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.

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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.

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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.