The Great Wall for China

by Pepper Hamilton LLP
Contact

This article was published in Abschiedsheft of the Journal of German and American Law (ZDAR) (July 2018). It is reprinted here with permission.

Nearly 14 years have passed since I published with my partner Greg Dorris the article Uncle Sam Watches Nervously: Foreign Investment in U.S. Industries.1 That article discussed the review process under the Exon-Florio Amendment delegated to the Committee on Foreign Investment in the United States (CFIUS).2 The article highlighted several recent CFIUS reviews, and stressed that the evolving war on terrorism would have implications on U.S. policy governing foreign investment in the United States. The warning was of stricter scrutiny most focused on the individuals and companies making the investment, with more transactions included in CFIUS oversight involving companies engaged in the provision of critical infrastructure as opposed to just the production and provision of defense-related goods and services. And, as we have seen as recently as the end of 2016, that scrutiny applies to transactions between companies located outside the territorial wall of the United States.

Today, given the climate for trade, the “America First” policy of the current administration and the concern across Europe regarding protection of its key industries, the scope of review of transactions and industries that receive coverage has expanded widely. At least two transactions in Germany have been abandoned because of concerns raised by CFIUS. An unknown number of others have never progressed beyond early discussions because of the heightened scrutiny of  takeovers given by not only the United States but also other western countries. Whether it is truly for national security or a protectionist reaction to the emergence of China as a prolific acquiror of technology to fuel its growth, the expanding level of review given by the United States and European states to transactions involving a wide-range of industries compels any party to a transaction to consider the risk of review by multiple governments. As recently as March 2018, CFIUS review was called upon by Qualcomm to defend itself from a hostile takeover by the Singapore-based Broadcom, a first for takeover defense.

The projections bore out over the years, as the U.S. Treasury Department soon after issued “new” regulations and guidance on CFIUS that outlined review of critical infrastructure and specific industries. The U.S. Congress, motivated by terrorism and other global policy concerns, has developed a growing interest in CFIUS. In particular, the rise of China and its economic strength have caused anxiety at the same time China has become the largest growing source of foreign investment in the United States. Since President Trump has taken office, there is a heightened awareness of China’s rise and perhaps a will to curb it not seen in previous U.S. administrations. The only question is whether investment would be encouraged to bring jobs to the United States or discouraged for fear that key industries might be exported.

Our previous article cautioned that change is not always progress, and warned against tightening security over more transactions, which could return the United States to an even broader Cold War suppression of foreign investment. That same cautionary bell needs to be struck again, as foreign companies, especially Chinese companies, should be vigilant of CFIUS, but not deterred from pursuing their own goals for U.S. investments. Nor should CFIUS or the U.S. Congress discourage such investment, but rather welcome it (after the appropriate vetting) as the best means of growing and strengthening the U.S. defense industrial base and general economy. Last year, foreign direct investment from China to the United States fell 35 percent in 2017 to $30 billion, confirming our prior warnings.

Most practitioners believe that the national security concerns sought to be addressed by the CFIUS review fell into three categories:

  1. The proposed acquisition would make the United States dependent on a foreign controlled supplier of goods crucial to the functioning of the U.S. economy and that the supplier might delay, or place conditions upon, provision of those goods or services
  2. The proposed acquisition would allow the transfer of technology or other expertise to a foreign-controlled entity that might be deployed by that entity or its government in a harmful manner to the United States' and
  3. The proposed acquisition would allow the insertion of some capability for infiltration, surveillance or sabotage into goods and services that are crucial to the functioning of the U.S. economy.

2017 Was a Banner Year for CFIUS

By the end of 2016, CFIUS was undergoing significant changes. President Obama blocked the planned acquisition of the U.S. business of AIXTRON by the Chinese-controlled Grand Chip Investment business. AIXTRON is a German company that makes semiconductor equipment. About a fifth of its sales and 700 of its employees were in the United States. While the CFIUS denial only applied to the U.S. assets, the ruling effectively killed the entire deal. AIXTRON was unusual not only because it caused the failure of an acquisition of a German company, it also required the involvement of President Obama himself. Normally, because the president would be expected to follow the recommendation of CFIUS, presidential action is rare.

During the Obama administration, there was an increased number of refusals, yet most Chinese investments into the United States were approved. When acquisitions involved potentially sensitive information, the transaction succeeded by employing mitigation agreements similar to those that have been used for acquisitions by companies in Europe, Japan, Russia, Singapore and Israel as well as other countries.

Enter President Trump. Reading just the headlines in the press, one would think that every Chinese-backed deal met its fate in 2017. In fact, while I am writing this piece on April 13, 2018, the President indicated that Chinese investment in the United States will receive even greater scrutiny. That would be a significant exaggeration. While Chinese companies have experienced the greatest scrutiny, especially when it comes to the acquisition of technology companies or any company that possesses substantial data regarding U.S. citizens, mitigation agreements continue to be the typical solution permitting the transaction to go forward. Although CFIUS will not report its statistics for 2017 until near the end of 2018, it is estimated that 20 deals, mostly involving Chinese buyers, were upended and many more deterred due to fears that CFIUS clearance would not be obtained. Some of those deals were blocked because of fear that China would obtain access to a target company’s technology. That seems to be the case when the German acquiror Infineon sought to acquire Cree.

Some of the recent transactions blocked by the Trump administration seem a bit more logical. Canyon Bridge, a U.S. entity, was stymied in its efforts to acquired Lattice Semiconductor because it was found to be funded by, or otherwise tied to, the Chinese government and by the fact that the Chinese government had a supporting role in the transaction. But China is not the only country for whom an acquisition wall has been constructed. Broadcom, a Singaporebased company, lost out on its bid to acquire Qualcomm because of concerns that Broadcom would cut research and development by Qualcomm on 5G technology, thereby ceding the advantage to Huawei and the Chinese government to be the 5G frontrunner. A well-known example of where CFIUS review has gone beyond what is expected is a little stale and did not involve a voluntary notice, but rather a self-initiated review and presidential action. SANY Group Co., Ltd., which controls Ralls Corp., was blocked for national security reasons in 2010 in the purchase of four wind farms in Oregon. CFIUS ordered Ralls to stop construction of turbines on land close to a U.S. Navy weapons-testing facility. President Obama later ordered Ralls to sell its stake in the wind farms based on security issues. SANY filed an unsuccessful lawsuit against the Obama administration over the CFIUS decision, which was the first public case decided solely on proximity grounds.3

In an earlier case in 2009, CFIUS opposed an attempt by China’s Northwest Non Ferrous International Investment to acquire Firstgold Corp., which had property near Fallon Naval Air Station in Nevada; it is reported the Chinese company pulled out of the deal.4 While CFIUS approved the acquisition of the U.S. assets of Canadian energy company Nexen Inc. by Cnooc Ltd., Cnooc was barred from operating oilfields in the Gulf of Mexico under the accord due to their proximity (around 50 miles) to the U.S. Naval Air Station Joint Reserve Base at Belle Chasse, Louisiana.5

The most prominent recent China CFIUS review ended successfully. CFIUS approved state-owned China National Chemical Corp.’s takeover bid of Swiss seeds and pesticides group Syngenta AG in August 2016.6 Trumpeted as the “biggest cross-border deal involving a Chinese buyer” that would “mark an acceleration of a shakeup in the global agrochemicals industry,”7 this deal caused considerable anxiety in the financial markets. U.S. interests were particularly piqued that Syngenta earlier had spurned a takeover bid by U.S.-based seed company Monsanto. U.S. Representative Michael Conaway, a Texas Republican who chairs the House Agriculture Committee, closely monitored the deal.8 Objections were raised that food safety and supply were issues of critical infrastructure and therefore a national security concern, but these concerns have not appeared to take hold with CFIUS.

In January 2016, CFIUS blocked Dutch company Royal Philips NV’s sale of high-end lights to China’s GO Scale Capital, a Chinese-backed private equity firm, based on undisclosed national security concerns.9 Like the two German transactions discussed above, this covered transaction highlights the extraterritorial impact of CFIUS, in that it is the “tail wagging the dog” that nixes what essentially is a much larger transaction between companies in foreign countries.

The targeting of certain industries by Chinese companies may eventually lead to CFIUS looking not only at the national security interest of the particular transaction, but the overall investment takeover in that industry. This broader consideration is most likely to take place in critical infrastructure cases, such as telecommunications, but also in high-technology industry sectors, such as semiconductors. An example of this is the high-profile CFIUS review in February 2016 when Fairchild Semiconductor International turned down an offer by China Resources Microelectronics Ltd. and Hua Capital Management Co. Ltd., allegedly due to the near certainty that CFIUS would not approve the deal.10 In a similar technology deal shortly after Fairchild, U.S. hard drive maker Western Digital revealed that Chinese state-owned Tsinghua Unisplendour had pulled out of a deal to acquire 15 percent of the company, a transaction valued at $3.78 billion.11 It is reported that Unisplendour took advantage of an investment agreement provision allowing either party to walk away from the transaction within a 15-day window if, after an initial review, CFIUS determined that it would conduct a formal investigation. As discussed above, before these failed technology deals, in the summer of 2015, China Resources, a giant state-owned conglomerate, was forced to rescind its offer for Micron, the U.S. memory chip manufacturer, reportedly because of worries that the deal would not clear CFIUS review.

From being just an upstart several years ago to becoming the fastest-growing investor in the United States, China may now soon drop in the foreign investor race in the United States due to CFIUS concerns. Certainly there will be increased focus and scrutiny by CFIUS on Chinese deals as it exercises what appears to be an extraterritorial oversight of mega-foreign party deals with relatively insignificant U.S. interest at play. Chinese state-owned enterprises will cause particular concern for CFIUS, especially in the areas of telecommunications and high technology. Chinese investors need to be aware of and active in gaining CFIUS approval before consummating any covered transactions in the United States.

The Trump Administration and Beyond

Though CFIUS already is shining a bright light on Chinese covered transactions, that light likely will only intensify and be brighter with the Trump administration. The press has publicized well President Trump’s intentions to confront China across the board on public policy and commercial matters, especially trade and investment issues. A few recent transactions confirm the heightened scrutiny that deals sourced in China will bear. ANT Financial’s proposed acquisition of MoneyGram, a global money transfer business, was scuttled on national security concerns that ANT Financial, owned by Jack Ma, who appears frequently with leaders from the highest echelons of the Communist Party, would acquire too much data on American citizens. Also, while it does not appear that there was ever a finding the CFIUS, HNA’s efforts to acquire SkyBridge Capital appear to have ended due to concerns over the opacity of HNA’s ownership structure. It is likely that until those concerns are resolved, no deal with HNA will pass muster.

For now at least, CFIUS is grounded in legal framework that offsets unfounded hostility to new Chinese investment. While there will be congressional antagonism to some new Chinese deals, this resistance should not prevail unless there are legitimate national security interests at stake. Regardless, the uncertainty itself has led to warnings to Chinese investors to move more slowly and cautiously in transitioning to the new environment.12

Congress is under pressure from many sources to act more aggressively in repudiating Chinese takeovers of U.S. companies for a variety of reasons. President Trump’s newly formed trade policy with China seems to echo those concerns. There is no doubt that voicing concern and projecting strong opposition to more Chinese investment in the United States will win friends in the Trump administration. President Trump’s “America First” agenda may be the clarion call that any acquisition of a U.S. entity with the remotest connection to national security, technology, data privacy or a government installation could be in peril, even if it is by an acquiror from a long-time ally. While there may not be a Great Wall of America the magnitude of the fortification in China, foreign buyers should strongly consider filing with CFIUS before completing a transaction as the barrier may be just as solid.

 

Endnotes

1 James D. Rosener & Gregory C. Dorris, Uncle Sam Watches Nervously: Foreign Investment in U.S. Industries, 15 The J. of Corp. Acct. & Fin. 31 (Jan./Feb. 2004).

2 Section 721 of the Defense Production Act of 1950 (50 U.S.C. app. 2170), enacted by section 5021 of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100–418, 102 Stat. 1107 (1988) (commonly known as the Exon-Florio Amendment because of its two primary sponsors, then-Sen. James Exon [D-Nebraska] and then-Rep. Jim Florio [D-New Jersey]). President Ford with Executive Order 11,858 established CFIUS in 1975 to evaluate the general impact of foreign investment in the United States. Exec. Order No. 11,858, 3 C.F.R. § 990 (1971–1975), reprinted in 15 U.S.C. § 78b. President Reagan in 1988 by Executive Order 12,661 delegated to CFIUS the express task of carrying out the national security investigations under the Exon-Florio Amendment and reporting its findings to the President. Exec. Order No. 12,661, 3 C.F.R. § 630 (1993), reprinted in 15 U.S.C. § 78b.

3 SANY apparently made a subsequent and successful investment in a Colorado wind farm after structuring the investment through direct ownership by U.S. citizens and not Chinese. See Ralls CFIUS block alters SANY’s future investment strategy in US, Financial Times (Mar. 1, 2013), http://www.ft.com/intl/cms/s/2/1ff1eb98-82b8-11e2-a3e3-00144feabdc0.html#axzz2MOM6qqB9.

4 U.S. Security Concerns Could Stand in the Way of ChemChina’s Syngenta Bid, Bloomberg (Feb. 2, 2016), http://www.bloomberg.com/news/articles/2016-02-02/chemchina-seen-facing-u-s-security-hurdle-to-winsyngenta-bid.

5 Id.

6 See, e.g., Powerful U.S. Panel Clears Chinese Takeover of Syngenta, The Wall Street Journal (Aug. 23, 2016), http://www.wsj.com/articles/powerful-u-s-panel-clears-chinese-takeover-of-syngenta-1471914278.

7 UPDATE 4-ChemChina close to striking deal for Syngenta – sources, Reuters (Feb. 2, 2016), http://www.reuters.com/article/syngenta-ag-machemchina-idUSL3N15H4AJ.

8 ChemChina, Syngenta to move quickly on U.S. national security review, Reuters (Feb. 4, 2016), http://www.reuters.com/article/us-syngenta-m-acfius-idUSKCN0VD03C.

9 US invokes ‘national security’ to stop sale of Philips LED unit to Chinese, Computerworld (Jan. 25, 2016), http://www.computerworld.com/article/3026198/security/us-invokes-national-security-to-stop-sale-of-philips-led-unit-to-chinese.html.

10 See Fairchild rejects Chinese offer on U.S. regulatory fears, Reuters (Feb 16,2016), http://www.reuters.com/article/us-fairchild-semico-m-aidUSKCN0VP1O8; Fairchild turns down Chinese group’s acquisition offer, Siliconbeat (Feb. 17, 2016 ), http://www.siliconbeat.com/2016/02/17/fairchild-turns-down-chinese-offer/. Fairchild elected instead to go forward with U.S.-owned ON Semiconductor, which presented no CFIUS challenge. This case illustrates how sometimes just the risk of a CFIUS rejection can cause a Chinese party to lose out to a U.S. rival that, while reportedly making a less favorable financial offer, did not face the regulatory hurdle of a CFIUS review.

11 See Chinese Firm Ends Investment in Western Digital, Complicating SanDisk Tie-Up, The Wall Street Journal (Feb. 23, 2016), http://www.wsj.com/articles/unispledour-ends-investment-in-western-digital-complicating-sandisk-tie-up-456231018; CFIUS Concerns Halt Unisplendour’s $4B Western Digital Play, Law360 (Feb. 23, 2016), http://www.law360.com/articles/762441/cfius-concerns-halt-unisplendour-s-4b-westerndigital-play.

12 See, e.g., China Pumps the Brakes on U.S. Dealmaking After Trump Win, Bloomberg (Nov. 13, 2016), https://www.bloomberg.com/news/articles/2016-11-14/china-said-to-pump-the-brakes-on-u-s-dealmaking-aftertrump-win.

 

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton 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.