Retail and Consumer Products Law Roundup - April 2018

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

In This Issue:
  • New Guidance From SEC, New York’s DFS
  • FTC Nominees Make Progress
  • California Court Tosses New York Claims
  • ADA Suit Against Blooms
  • California Supreme Court Provides Clarification When Calculating Overtime Rate

New Guidance From SEC, New York’s DFS

By Craig D. Miller, Partner, Financial Services Transactions | Anita L. Boomstein, Partner, Global Payments

Hoping to help covered entities, the Securities and Exchange Commission (SEC) released an update on cybersecurity while New York’s Department of Financial Services (DFS) published guidance for licensed virtual currency businesses in the state.

What happened

In an effort to provide assistance to public companies when preparing disclosures about cybersecurity risks and incidents, the commissioners of the SEC unanimously voted to publish new guidance.

The document updates and reinforces guidance issued by the agency in October 2011, noting that cybersecurity poses a “grave threat” that has increased in both risk and frequency. Incidents can result from unintentional events or deliberate attacks by insiders or third parties, the SEC said.

“Given the frequency, magnitude and cost of cybersecurity incidents, the Commission believes that it is critical that public companies take all required actions to inform investors about material cybersecurity risks and incidents in a timely fashion, including those companies that are subject to material cybersecurity risks but may not yet have been the target of a cyberattack,” according to the guidance.

Of critical importance are disclosure controls and procedures that provide an appropriate method of discerning the impact such matters may have on the company and its business, financial condition and results of operations, as well as a protocol to determine the potential materiality of such risks and incidents, the SEC said. Public companies also need policies and procedures in place to guard against directors, officers and other insiders trading securities while in possession of material nonpublic information.

In addition to considering the materiality of cybersecurity risks and incidents when preparing the disclosures for statements required by the Securities Act, the Securities Exchange Act, as well as periodic and current reports, the SEC reminded companies that they are also required to disclose “such further material information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not misleading.”

What makes a cybersecurity issue material? Companies should “generally weigh, among other things, the potential materiality of any identified risk and, in the case of incidents, the importance of any compromised information and of the impact of the incident on the company’s operations,” according to the guidance. “The materiality of cybersecurity risks or incidents depends upon their nature, extent, and potential magnitude, particularly as they relate to any compromised information or the business and scope of company operations. The materiality of cybersecurity risks and incidents also depends on the range of harm that such incidents could cause.”

Companies should not make detailed disclosures that could compromise their cybersecurity efforts, but the SEC expects disclosures of risks and incidents that are material to investors, including financial, legal or reputational consequences. The agency also recognized that time may be required to discern the implications of an incident and that cooperation with law enforcement may affect the scope of disclosure. However, an ongoing or internal investigation does not on its own provide a basis for avoiding disclosures of a material cybersecurity incident, the SEC made clear.

“Where a company has become aware of a cybersecurity incident or risk that would be material to its investors, we would expect it to make appropriate disclosure timely and sufficiently prior to the offer and sale of securities and to take steps to prevent directors and officers (and other corporate insiders who were aware of these matters) from trading its securities until investors have been appropriately informed about the incident or risk,” the agency wrote.

Covered entities may also have a duty to correct prior disclosures that it determines were untrue at the time they were made as well as a duty to update disclosures that become materially inaccurate after being made. Disclosures should be tailored to the particular risk and incident of the public company, the SEC said, in a “company-by-company approach.”

Companies may need to disclose previous or ongoing cybersecurity incidents in order to place a discussion of these risks in the appropriate context, the guidance explained. For example, if a company previously experienced a denial-of-service attack, “it likely would not be sufficient for the company to disclose that there is a risk that a denial-of-service incident may occur,” the SEC said. “Instead, the company may need to discuss the occurrence of that cybersecurity incident and its consequences as part of a broader discussion of the types of potential cybersecurity incidents that pose particular risks to the company’s business and operations.”

To effectuate the necessary disclosures, the guidance emphasized the importance of cybersecurity risk management policies and procedures. “Companies should assess whether they have sufficient disclosure controls and procedures in place to ensure that relevant information about cybersecurity risks and incidents is processed and reported to the appropriate personnel, including up the corporate ladder, to enable senior management to make disclosure decisions and certifications and to facilitate policies and procedures designed to prohibit directors, officers, and other corporate insiders from trading on the basis of material nonpublic information about cybersecurity risks and incidents,” the SEC advised.

Policies and procedures should not be limited to specifically required disclosures, but be broad enough to encompass the timely collection and evaluation of information potentially subject to required disclosure, the guidance noted. In addition, the SEC cautioned companies that they, as well as their corporate insiders, must be mindful of insider trading concerns that may arise in connection with a cybersecurity incident. In particular, the SEC noted that insiders may violate applicable law if they trade on a company’s securities while in possession of material nonpublic information regarding a cybersecurity risk or incident.

The DFS also took the time to provide guidance to covered entities, specifically the virtual currency (VC) companies licensed in New York and concerns about fraud, particularly market manipulation.

“VC Entities are required to implement measures designed to effectively detect, prevent, and respond to fraud, attempted fraud, and similar wrongdoing,” DFS wrote. “[M]arket manipulation is a form of wrongdoing about which VC Entities must be especially vigilant, given that such manipulation presents serious risks both to consumers and to the safety and soundness of financial services institutions.”

Fraud can take many forms, may come from a variety of sources, and may or may not involve criminal activity, the regulator said. A customer might misuse a virtual currency exchange service in an attempt to wrongfully manipulate the price of a virtual currency, or an employee might wrongfully act on insider information regarding that entity’s plans to expand or curtail its services.

“Because fraud and similar wrongdoing can take many forms, effective measures to detect, prevent and respond to such activity will also vary,” the DFS said. “The range of measures implemented by a particular VC Entity to combat fraud and similar wrongdoing must be determined through diligent evaluation of the particular risks faced by that VC Entity.”

At a minimum, such measures must include a written policy that identifies and assesses the full range of fraud-related and similar risk areas (including market manipulation, if applicable); provides effective procedures and controls to protect against identified risks; allocates responsibility for monitoring risks; and provides for periodic evaluation and revision of the procedures, controls and monitoring mechanisms in order to ensure continuing effectiveness, including continuing compliance with all applicable laws and regulations.

As part of these policies and procedures, covered entities must provide for the effective investigation of fraud and other wrongdoing—whether suspected or actual, the DFS said.

“In addition, immediately upon the discovery of any wrongdoing, a VC Entity must submit to the Department a report stating all pertinent details known at the time of the report,” the DFS wrote. Further reports of any material developments must also be provided, in some instances within 48 hours, the regulator said, with records maintained of each incident of wrongdoing.

To read the SEC guidance, click here.

To read the DFS guidance, click here.

Why it matters

The SEC’s cybersecurity guidance confirms the SEC’s focus on this important disclosure area and general concerns from the agency about the risks posed to investors arising from cybersecurity incidents. It also serves as a warning to covered entities that the agency is keeping a close eye on cybersecurity, with the guidance cautioning that the SEC “continues to monitor cybersecurity disclosures carefully.” The DFS directed virtual currency companies to take the necessary steps to guard against fraud and be extra vigilant about market manipulation. “By these actions, the market can evolve with strong regulatory supervision,” explained DFS Superintendent Maria T. Vullo.

FTC Nominees Make Progress

By Richard P. Lawson, Partner, Consumer Protection

The confirmation of four new members of the Federal Trade Commission (FTC)—including a chairperson—inched closer to reality after the Senate Commerce Committee approved the nominations.

In February, President Donald J. Trump officially submitted his picks for the agency: Joseph Simons (selected as the new chair), Noah Phillips, Christine Wilson and Rohit Chopra, the lone Democrat among the bunch.

Antitrust attorney Simons, the former director of the FTC’s Bureau of Competition, has been in private practice in Washington, D.C., since leaving the FTC in 2003. Phillips currently acts as chief counsel to Sen. John Cornyn (R-Texas), while Wilson previously served as chief of staff to former FTC Chair Tim Muris and has most recently been vice president for regulatory and international affairs at Delta Air Lines. Chopra’s experience includes time at the Consumer Financial Protection Bureau (as assistant director and student loan ombudsman) and the Consumer Federation of America.

At a hearing, Simons discussed issues ranging from cybersecurity (one of his choices for the top three challenges facing the FTC) to net neutrality to enforcement against big technology companies, such as Google. “Sometimes big is good, sometimes big is bad,” he told the Senate Commerce Committee. “Sometimes it’s both at the same time.”

The committee approved the nominations on a unanimous voice vote. No date has been set for a vote by the full Senate.

Why it matters: The White House has taken its time filling the FTC, which has been down to two members since the beginning of the Trump administration. Once the Senate votes in favor, the four nominees can take their positions with one open spot remaining. Sen. Charles Schumer (D-N.Y.) has recommended one of his aides, Rebecca Slaughter, for that position.

California Court Tosses New York Claims

By Richard P. Lawson, Partner, Consumer Protection

New York’s consumer protection law does not protect out-of-state consumers, a California judge has ruled when dismissing claims from the Empire State in a multidistrict litigation (MDL) against Lenovo Inc.

According to the California federal court complaint, Lenovo preinstalled Superfish Inc.’s software on its laptops, which created performance, privacy and security issues. The plaintiffs asserted claims under California and New York state law, as well as the federal Wiretap Act.

After the litigation was consolidated as an MDL and the plaintiffs filed an amended complaint, the defendants moved to dismiss the claims under New York law, pointing out that the suit no longer included a named plaintiff who resided in New York. As the four named plaintiffs were residents of Arizona, California, Illinois and Missouri, they were without standing to bring a claim under New York’s Deceptive Acts and Practices law Section 349, the defendants told the court.

U.S. District Judge Haywood S. Gilliam Jr. agreed. “Section 349 does not protect consumers from out-of-state deceptive business practices,” he said, as the statute prohibits “[d]eceptive acts or practices … in this state.”

New York’s highest court has held that the “transaction in which the consumer is deceived must occur in New York,” the court said, while the U.S. Court of Appeals, Second Circuit has clarified that “the analysis under Section 349 is based on ‘the location of the transaction, and in particular the strength of New York’s connection to the allegedly deceptive transaction, rather than on the residency of the parties.’”

The plaintiffs did not allege that they were New York residents, nor did they allege that any conduct or deceptive transaction occurred within New York. Instead, they tried to convince the court that because the defendants agreed that New York substantive law applied to the case, they waived any argument to the contrary.

“Plaintiffs’ argument improperly conflates choice-of-law with statutory standing,” the court wrote. “Even if the parties agree that New York law should apply to this litigation, Plaintiffs still must adequately allege a claim under that law.”

The parties’ stipulation to proceed initially under federal, New York and California law did not resolve the plaintiffs’ standing deficiency, Judge Gilliam said.

Even if the plaintiffs had statutory standing, the court additionally found they failed to plead sufficient facts to sustain their Section 349 claim, which requires a showing of “actual, though not necessarily pecuniary, harm.” The plaintiffs alleged that the software “significantly degraded the performance” of the laptops on which it was installed. As a result, they overpaid for their laptops and did not receive the full value of their purchase.

Although New York law does not categorically prohibit such a “price premium” theory, the plaintiffs neglected to allege that they personally experienced any performance or security issues with their computers, the court said.

“Nor do they allege what their expectations were about the computers’ performance or specifications before they purchased them,” the court wrote. “Consequently, Plaintiffs have failed to allege sufficient facts to establish that they received less than what they paid for when they purchased Lenovo computers preloaded with [the] software.”

Judge Gilliam granted the defendants’ motion to dismiss the Section 349 claim, albeit without prejudice.

To read the order in In re: Lenovo Adware Litigation, click here.

Why it matters: The court was clear: New York’s Deceptive Acts and Practices Statute requires a connection to the state, whether a resident is a plaintiff or an allegation that the deceptive conduct or transaction occurred within New York. For class action defendants in California federal court, the order provides a potential road map to dismissal of New York claims.

ADA Suit Against Blooms

By Richard P. Lawson, Partner, Consumer Protection

Demonstrating the minefield facing online retailers, the U.S. District Court, District of Massachusetts refused to dismiss an Americans with Disabilities Act (ADA) accessibility suit filed against

The plaintiffs—three individuals and national disability rights organization Access Now—alleged that the 16 sites operated by the defendant were not sufficiently accessible to blind and visually impaired consumers. They requested a permanent injunction compelling the defendant to bring the sites into compliance with the ADA, specifically Version 2.0 of the Web Content Accessibility Guidelines. responded that it could not be liable for the failure to follow voluntary standards for web accessibility.

But the court denied the defendant’s motion to dismiss, holding that the plaintiffs alleged violations of the ADA and only requested a remedy based on the Guidelines.

“Plaintiffs’ Complaint does not allege that Defendant is liable for failing to comply with the Web Content Accessibility Guidelines,” U.S. District Judge Indira Talwani wrote. “Instead, Plaintiffs allege that Defendant violates the ADA by ‘depriv[ing] blind … individuals the benefits … it affords non-disabled individuals.’ Plaintiffs request compliance with the Web Content Accessibility Guidelines only as a remedy, and do not contend that the failure to comply is a basis for liability in the first instance. Thus, the Complaint seeks to enforce the ADA’s statutory requirements, rather than the Web Content Accessibility Guidelines.”

The court was careful not to state that it was deciding whether the ADA requires Title III entities to satisfy the Web Content Accessibility Guidelines.

Considering the defendant’s fallback argument, Judge Talwani was similarly not persuaded that the issues highlighted by the plaintiffs were isolated incidents of mechanical failure.

“For example, Plaintiffs assert that Defendant’s websites do not have text equivalents for every non-text element; that the websites do not present audio-only or video-only presentations in a way that sight impaired individuals can access, such as an audio or text description of video content; and that its web pages lack titles that describe their topic and purpose,” the court said. “Such allegations are sufficient to support the reasonable inference that the websites themselves—not the screen reader equipment—prevent blind and visually impaired individuals from equal access to the websites, and that Defendant is therefore in violation of Title III.”

The court denied the defendant’s motion to dismiss.

To view the memorandum and order in Gathers v., Inc., click here.

Why it matters: The defendant also attempted to push the suit out of court by pointing to the possibility of official guidance from the Department of Justice (DOJ). In light of the DOJ’s recent decision to pass on rule-making with regard to online accessibility pursuant to the ADA, the court made its own decision instead of waiting. The opinion demonstrates the challenges facing online retailers due to the lack of official guidance.

California Supreme Court Provides Clarification When Calculating Overtime Rate

Why it matters

In an employee-friendly opinion, the California Supreme Court set forth the calculation of a worker’s overtime pay rate when he or she has earned a flat-sum bonus during a single pay period. Hector Alvarado claimed that Dart Container Corp. of California improperly computed his overtime pay. He argued that the employer should have used the actual number of nonovertime hours the employee worked during the relevant pay period as the divisor for purposes of calculating the per-hour value of the one-time “attendance bonus.” Dart moved for summary judgment, countering that the divisor should be the number of hours the employee worked during the entire pay period, including overtime hours. A trial court granted the motion in favor of the employer, and an appellate panel affirmed.

The state’s highest court reversed, holding that the divisor should be the number of nonovertime hours actually worked by the employee during the pay period, a formula advocated by the state labor department. The California Supreme Court also indicated the decision would apply retroactively, presenting the need for employers to review their calculations both historically and prospectively.

Detailed discussion

A warehouse associate for Dart Container Corp. of California from September 2010 to January 2012, Hector Alvarado was one of many employees who received a weekend “attendance bonus.” Hourly workers were paid a flat sum of $15 per day of weekend work in addition to their normal hourly wages, regardless of whether the employee worked in excess of the normal work shift on the day in question.

To calculate an employee’s overtime compensation, Dart multiplied the number of overtime hours the employee worked during the relevant pay period by the normal hourly wage rate to obtain a base hourly pay for the overtime work. Dart then added the total hourly pay for nonovertime work during the pay period, any nonhourly compensation earned (such as the attendance bonus) and the base hourly pay. The employer divided that total by the number of hours the employee worked during the pay period, including overtime hours, to obtain an hourly rate. Dart then multiplied that hourly rate by the total number of overtime hours in the pay period, divided it in half and added the base hourly pay to the overtime to get the total overtime compensation for the pay period.

Alvarado advocated for a different formula. He would first calculate the overtime compensation attributable only to the employee’s hourly wages, multiplying the normal hourly wage rate by 1.5 and by the number of overtime hours. Next he would calculate the overtime compensation attributable only to the employee’s bonus by calculating the bonus’s per-hour value (based on the number of nonovertime hours worked) and then multiplying that per-hour value by 1.5 and by the number of overtime hours worked. Finally, Alvarado suggested combining these amounts to obtain the total overtime compensation for the pay period.

The key distinction: whether the flat-sum attendance bonus is allocated to all hours worked or only to the nonovertime hours worked. Using the latter as the divisor results in a more favorable calculation for employees.

After Alvarado filed a putative class action against Dart alleging the company’s calculations violated California labor law, the employer moved for summary judgment. In support of its formula, Dart advised the trial court to rely on a federal regulation explaining how to factor a flat-sum bonus into an employee’s regular rate of pay. The only California regulation on point came from the Division of Labor Standards Enforcement (DLSE), and that policy is void for failure to comply with the Administrative Procedure Act (APA), Dart argued.

The trial court granted the employer’s motion for summary judgment, and an appellate panel affirmed. In a unanimous opinion, the California Supreme Court reversed. The court began with the question of whether the DLSE’s enforcement policy controlled its analysis of Dart’s calculations. If it did, then the case was decided in favor of Alvarado. If it did not control, the court could nevertheless follow it.

In 1996, the California Supreme Court decided Tidewater Marine Western, Inc. v. Bradshaw, where the court found that DLSE’s manual contained void underground regulations in violation of the APA. Dart pointed to this decision as support for its reliance on federal regulations, but the court made a careful distinction.

“But ‘void,’ in this context, does not necessarily mean wrong,” the court said. “If the policy in question is interpretive of some governing statute or regulation, a court should not necessarily reject the agency’s interpretation just because the agency failed to follow the APA in adopting that interpretation; rather, the court must consider independently how the governing statute or regulation should be interpreted.”

In other words, an agency’s underground interpretive regulation should not be afforded any special weight or deference, but it is nonetheless something a court may consider, the court explained, and assuming the court is persuaded that the agency’s interpretation is correct, the court may adopt it as its own. “Moreover, the persuasiveness of the agency’s interpretation increases in proportion to the expertise and special competence that are reflected therein, including any evidence that the interpretation was carefully considered at the highest policymaking level of the agency.”

The DLSE manual addresses the precise calculation at issue. Section states: “If the bonus is a flat sum, such as $300 for continuing to the end of the season, or $5 for each day worked, the regular bonus rate is determined by dividing the bonus by the maximum legal regular hours worked during the period to which the bonus applies. This is so because the bonus is not designed to be an incentive for increased production for each hour of work; but, instead is designed to insure that the employee remains in the employ of the employer.”

Although the court determined the DLSE policy is a void underground regulation, it also decided it was correct and could be followed.

The court then turned to Dart’s formula, with the recognition that California has a long-standing policy of discouraging employers from imposing overtime work and liberally construes labor laws in favor of worker protection.

Under the Labor Code and the Industrial Wage Commission orders, an employee’s overtime pay rate is a multiple of his or her “regular rate of pay.” The plain meaning of the phrase “regular rate of pay” does not mean “constant,” the court added, as an employee’s regular rate of pay changes from pay period to pay period depending on whether the employee has earned shift differential premiums or nonhourly compensation.

“[T]he weekend attendance bonus at issue here is payable even if the employee works no overtime at all during the relevant pay period,” the court said. “It follows, then, that the bonus is properly treated as if it were fully earned by only the nonovertime hours in the pay period, and therefore only nonovertime hours should be considered when calculating the bonus’s per-hour value.”

Returning to the DLSE policy, the court said the agency recognized an important distinction. “If a bonus is a reward ‘for each hour of work,’ and its amount therefore increases in rough proportion to the number of hours worked (as might be true of a production or piecework bonus or a commission), then it might be said that the payment of the bonus itself constitutes base compensation, including base compensation for overtime work, in which case one might be able to argue that only the overtime premium need be added,” the court said.

But the attendance bonus at issue does not reward the employee “for each hour of work,” and its amount did not increase in rough proportion to the number of hours worked; instead, it is a flat-sum bonus that rewards the employee for completing a full weekend shift. “Accordingly, we conclude—consistent with the DLSE’s policy on point—that the divisor for purposes of calculating the per-hour value of defendant’s attendance bonus should be the number of nonovertime hours actually worked in the relevant pay period, not the number of nonovertime hours that exist in the pay period,” the court said.

Dart’s formula “must be rejected because it results in a progressively decreasing regular rate of pay as the number of overtime hours increases, thus undermining the state’s policy of discouraging overtime work,” the court wrote.

Having sided with the plaintiff, the court then ruled its decision should have retroactive effect. Given the DLSE policy, the defendant “had every reason” to predict the outcome, the court said, not persuaded by the potential for costly civil penalties facing Dart and other employers.

“[I]f we were to restrict our holding to prospective application, we would, in effect, negate the civil penalties, if any, that the Legislature has determined to be appropriate in this context, giving employers a free pass as regards their past conduct,” the court wrote.

“We conclude that the flat sum bonus at issue here should be factored into an employee’s regular rate of pay by dividing the amount of the bonus by the total number of nonovertime hours actually worked during the relevant pay period and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime pay rate.”

To read the opinion in Alvarado v. Dart Container Corp. of California, click here.

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.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

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

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

JD Supra Privacy Policy

Updated: May 25, 2018:

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

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (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.