SEC Adopts Regulation Best Interest and Issues Interpretive Release on the “Solely Incidental” Exclusion

Ropes & Gray LLP
Contact

Ropes & Gray LLP

On June 5, 2019, the SEC adopted two rules and published two interpretations “designed to enhance the quality and transparency of retail investors’ relationships with investment advisers and broker-dealers.” This Alert discusses the Regulation Best Interest adopting release and the SEC interpretive release regarding the “solely incidental” prong of the broker-dealer exclusion from the Advisers Act. Separate Ropes & Gray Alerts discuss the SEC release on the standard of conduct for investment advisers (available here) and the SEC adoption of Form CRS (available here).

REGULATION BEST INTEREST

Introduction. Regulation Best Interest (the “Regulation”), new Rule 15l-1 under the Exchange Act, imposes an overarching standard of conduct that requires broker-dealers and natural persons who are associated persons of a broker-dealer (unless otherwise indicated, each a “broker-dealer”), when making a recommendation of any securities transaction or investment strategy involving securities to a retail customer,1 to act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker-dealer making the recommendation ahead of the interest of the retail customer (the “General Obligation”).

The term “best interest” is not defined in the Regulation. Instead, whether a broker-dealer acted in the best interest of its customer is determined by an objective consideration of the facts and circumstances of how the specific components of the Regulation were satisfied when the recommendation was made. A broker-dealer’s obligations cannot be modified or disclaimed by the broker-dealer, or otherwise waived by a retail customer.

Notably, the Regulation does not:

  • extend beyond the time a particular recommendation is made or impose a duty on a broker-dealer to monitor a customer’s account.
  • require a broker-dealer to conduct an evaluation of every possible alternative in order to recommend the single best of all possible alternatives that exist, but, instead, requires the broker-dealer to consider reasonably available alternatives offered by the broker-dealer.
  • require a broker-dealer to refuse to accept an order from a retail customer that is contrary to the broker-dealer’s recommendation, nor does it apply to investor-directed or unsolicited transactions by a retail customer.
  • create any new private right of action or right of rescission.

In determining what standard of conduct should apply to broker-dealers, the SEC opted not to apply the Advisers Act fiduciary standard to broker-dealers or to adopt a new uniform fiduciary standard that would apply to both broker-dealers and investment advisers. While the new standard of conduct under the Regulation includes several elements that are similar to key elements of the fiduciary standard applicable to investment advisers, the adopting release stresses that the Regulation’s standard is not a fiduciary standard.

The compliance date for the Regulation is June 30, 2020.

Compliance with Regulation Best Interest

The General Obligation is triggered at the time a recommendation (including an implicit hold recommendation resulting from agreed-upon account monitoring services) is made to a retail customer,2 and is satisfied by a broker-dealer complying with the four specific obligations – Disclosure, Care, Conflict of Interest, and Compliance – described below.

The Disclosure Obligation. The Disclosure Obligation requires broker-dealers to provide the retail customer, prior to or at the time of the recommendation, in writing, full and fair disclosure of:

  1. all material facts relating to the scope and terms of the relationship with the retail customer, including:
    1. that the broker, dealer, or such natural person is acting as a broker, dealer, or an associated person of a broker or dealer with respect to the recommendation;
    2. the material fees and costs that apply to the retail customer’s transactions, holdings and accounts;
    3. the type and scope of services provided to the retail customer, including any material limitations3 on the recommendation to the retail customer. In this regard, the broker-dealer must disclose the general basis for the recommendation and a discussion of the risks associated with the recommendation; and
  2. all material facts relating to conflicts of interest4 that are associated with the recommendation, such as those related to compensation arrangements and recommendations of proprietary products.

Supplemental Disclosure. The SEC recognized the importance of providing broker-dealers with flexibility regarding the time and manner in which disclosure of a particular material fact is made. Therefore, the SEC clarified in the adopting release that, in certain limited circumstances, the Disclosure Obligation may be satisfied by oral disclosure or disclosure after a recommendation is made if a broker-dealer provides initial, written disclosure that states what the material facts are and describes how the material facts will be supplemented, clarified or updated.5

Duty to Update. A broker-dealer must update when information provided becomes materially inaccurate or when there is new material information. In the adopting release, the SEC noted that the duty to update is based on facts and circumstances and, while it declined to provide a specific timeframe for when updates would be required, noted that broker-dealers generally should update disclosure documents as soon as possible and, in any event, no later than 30 days after a material change.

Use of Terms “Adviser” or “Advisor”. Use of the words “adviser” or “advisor” in a name or title by (i) a broker-dealer that is not also registered as an investment adviser or (ii) an associated person who is not also a supervised person of an investment adviser will be presumed to violate the Regulation. The use of either of these words would directly conflict with the disclosure that the broker, dealer, or associated person is acting as a broker, dealer, or associated person of a broker or dealer.

The Care Obligation. The Care Obligation requires broker-dealers, in making recommendations to retail customers, to exercise reasonable diligence, care, and skill to:

  1. understand the potential risks, rewards, and costs associated with the recommendation, and have a reasonable basis to believe that the recommendation could be in the best interest of at least some retail customers;
  2. have a reasonable basis to believe that the recommendation is in the best interest of a particular retail customer based on the customer’s investment profile and the potential risks, rewards, and costs associated with the recommendation and does not place the financial or other interest of the broker-dealer ahead of the interest of the retail customer; and
  3. have a reasonable basis to believe that a series of recommended transactions, even if in the retail customer’s best interest when viewed in isolation, is not excessive and is in the customer’s best interest when taken together in light of the customer’s investment profile and does not place the financial or other interest of the broker-dealer making the series of recommendations ahead of the interest of the customer.

While it may not be clear exactly what “best interest” means, the adopting release does state that the Care Obligation “significantly enhances the investor protection provided as compared to current [FINRA] suitability obligations.”

The Conflict of Interest Obligation. The Conflict of Interest Obligation requires broker-dealers to establish, maintain, and enforce written policies and procedures designed to:

  1. identify and at a minimum disclose, in accordance with the Disclosure Obligation, or eliminate, all conflicts of interest associated with recommendations to retail customers;
  2. identify and mitigate any conflicts of interest associated with recommendations that create an incentive for an associated person to place the interest of the broker, dealer, or associated person ahead of the interest of the retail customer;
  3. identify and disclose any material limitations on recommendations to a retail customer and any conflicts of interest associated with such limitations, in accordance with the Disclosure Obligation, and prevent such limitations and associated conflicts of interest from causing the broker-dealer to make recommendations that place the interest of the broker-dealer ahead of the interest of the retail customer; and
  4. identify and eliminate any sales contests, sales quotas, bonuses, and non-cash compensation that are based on the sales of specific securities or specific types of securities within a limited period of time.6

Where a conflict of interest creates too strong an incentive for a broker-dealer to make a recommendation that places the broker-dealer’s interest ahead of the retail customer’s interest, the Conflicts of Interest Obligation requires policies and procedures designed to eliminate the conflict or to both disclose and mitigate the conflict.

The Compliance Obligation. The Compliance Obligation, which is a new requirement that did not appear in the proposing release, requires broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to achieve compliance with the Regulation.

The SEC stated that a “reasonably designed compliance program” generally would include: controls, remediation of non-compliance, training, and periodic review and testing.

Recordkeeping. In connection with the Regulation, the SEC adopted new recordkeeping provisions under the Exchange Act. Specifically, Rule 17a-3(35) requires broker-dealers to retain a record of all information collected from and provided to a retail customer pursuant to the Regulation, as well as the identity of each associated person, if any, responsible for the account. With respect to information provided orally, the adopting release clarifies that broker-dealers must retain a record of the fact that oral disclosure was provided to the customer. The Regulation does not explicitly require broker-dealers to maintain a record of the substance of the disclosure.

INTERPRETATION OF “SOLELY INCIDENTAL” IN ADVISERS ACT § 202(A)(11)(C)

The Advisers Act regulates the activity of “investment advisers” as defined in the Act. Section 202(A)(11)(C) excludes from the definition of “investment adviser” brokers or dealers “whose performance of such advisory services is solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor” (the “exclusion”). On June 5, 2019, the SEC published an interpretive release to clarify its position with respect to the exclusion.

According to the SEC, a broker-dealer is within the exclusion if “the advice is provided in connection with and is reasonably related to the broker-dealer’s primary business of effecting securities transactions.” This determination will be made based on the facts and circumstances related to the broker-dealer’s business, services offered and relationship with its customer. Notably, the analysis does not rely on the amount of advice or the importance of the advice.7 As discussed below, the interpretation provides additional guidance on how the exclusion applies (i) when broker-dealers exercise investment discretion over customer accounts and (ii) when broker-dealers engage in account monitoring.

Investment Discretion

When a broker-dealer is given unlimited discretion over a customer account, the broker-dealer is not within the scope of the exclusion. When the broker-dealer is granted discretion on a temporary or limited basis, whether the broker-dealer is within the scope of the exclusion depends on the facts and circumstances.

The SEC included the following as examples of temporary or limited discretion that are typically within the scope of the exclusion: (i) discretion as to the price at which or the time to execute an order given by a customer for the purchase or sale of a definite amount or quantity of a specified security; (ii) discretion on an isolated or infrequent basis, to purchase or sell a security or type of security when a customer is unavailable for a limited period of time; (iii) discretion as to cash management, such as to exchange a position in a money market fund for another money market fund or cash equivalent; (iv) discretion to purchase or sell securities to satisfy margin requirements, or other customer obligations that the customer has specified; (v) discretion to sell specific securities and purchase similar securities in order to permit a customer to realize a tax loss on the original position; (vi) discretion to purchase a bond with a specified credit rating and maturity; and (vii) discretion to purchase or sell a security or type of security limited by specific parameters established by the customer.

Account Monitoring

Broker-dealers that agree to periodically monitor a customer’s account for purposes of providing buy, sell or hold recommendations may be deemed to be providing advice in connection with effecting securities transactions and, therefore, may be ineligible for the exclusion.

The SEC differentiated this fact pattern from a broker-dealer that voluntarily, without any agreement with the customer, reviews the customer’s account holdings for purposes of determining whether to provide a recommendation to the customer and, if the recommendation is determined to be appropriate, contacts the customer to make the recommendation. A broker-dealer whose actions are within this fact pattern is taking actions that are reasonably related to its primary business of effecting securities transactions.

The SEC recommended that broker-dealers consider adopting policies and procedures to govern when account monitoring is within the scope of the exclusion, stating that broker-dealers may include in their policies and procedures that:

a registered representative may agree to monitor a customer’s account at specific time frames (e.g., quarterly) for the purpose of determining whether to provide a buy, sell, or hold recommendation to the customer. However, such policies and procedures should not permit a broker-dealer to agree to monitor a customer account in a manner that in effect results in the provision of advisory services . . . such as providing continuous monitoring.

  1. “Retail customer” is defined as “a natural person, or the legal representative of such natural person, who (i) receives a recommendation of any securities transaction or investment strategy involving securities from a broker, dealer, or a natural person who is an associated person of a broker or dealer; and (ii) uses the recommendation primarily for personal, family, or household purposes.” Rule 15l-1(b)(1). The final rules narrowed the proposed definition by limiting “retail customers” to natural persons (and their legal representatives).
  2. The Regulation applies broadly to recommendations of securities transactions and investment strategies involving securities. The adopting release points to existing FINRA guidance for determinations of whether a recommendation has been made, such as whether the communication “reasonably could be viewed as a ‘call to action’” or “reasonably would influence an investor to trade a particular security or group of securities.” Furthermore, the final rules expanded the proposed text to explicitly state that the Regulation covers recommendations of securities account types and recommendations to roll over or transfer assets from one type of account to another. As a result, account recommendations will be subject to the Regulation regardless of whether those recommendations are tied to particular securities transactions.
  3. Material limitations include, for example, (i) recommending only proprietary products, a specific asset class, or products with third-party arrangements; (ii) recommending only products from a select group of issuers; and (iii) if a firm is dually registered as both a broker-dealer and an investment adviser, but an associated person of the firm is only permitted to provide brokerage services, the fact that the associated person’s services are materially narrower than the services offered by other associated persons of the firm who are permitted to provide brokerage and advisory services.
  4. The final Regulation adopts a definition of “conflict of interest” and provides that only the “material facts” of such conflicts must be disclosed. The Regulation defines “conflict of interest” as “an interest that might incline a broker, dealer, or a natural person who is an associated person of a broker or dealer—consciously or unconsciously—to make a recommendation that is not disinterested.”
  5. For example, with regard to product-level fees, a broker-dealer could provide an initial standardized disclosure of product-level fees generally (e.g., reasonable dollar or percentage ranges), noting that further specifics for particular products appear in the product prospectus, which will be delivered after a transaction in accordance with the delivery method the retail customer has selected, such as by mail or electronically. Similarly, with regard to the disclosure of a broker-dealer’s capacity, a dually registered broker-dealer and investment adviser could disclose that recommendations will be made in the broker-dealer capacity unless otherwise expressly stated at the time of the recommendation, and that any such statement will be made orally.
  6. The SEC believes that these incentives create the most problematic conflicts and cannot be reasonably mitigated.
  7. According to the interpretation, “advice need not be trivial, inconsequential, or infrequent to be consistent with the solely incidental prong.”

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.

© Ropes & Gray LLP | Attorney Advertising

Written by:

Ropes & Gray LLP
Contact
more
less

Ropes & Gray 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 www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

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

Collection of Information

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

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

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

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

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

How do we use this information?

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

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

How is your information shared?

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

How We Protect Your Information

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

Children's Information

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

Links to Other Websites

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

Information for EU and Swiss Residents

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

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

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

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

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

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

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

California Privacy Rights

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

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

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

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

Access/Correct/Update/Delete Personal Information

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

Changes in Our Privacy Policy

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

Contacting JD Supra

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

JD Supra Cookie Guide

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

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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

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

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

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

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

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

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

Controlling and Deleting Cookies

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

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

Updates to This Policy

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

Contacting JD Supra

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

- hide

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