Using “Old Cases,” District Court Applies Per Se Standard of Review to Blue Cross Blue Shield’s Restrictive Practices in Antitrust MDL

by Mintz

Since 2013, the Blue Cross Blue Shield Association has faced a series of purported class actions consolidated in the U.S. District Court in Alabama. In a recent decision focused upon the appropriate standard of review, the court ruled that certain allegedly restrictive practices should be analyzed under the per se standard rather than the more lenient rule of reason standard.[1] Notably, the court’s decision is grounded upon two arguably dated Supreme Court decisions, United States v. Sealy, and United States v. Topco, the continuing relevance of which is unclear. In so holding, the court rejected the defendants’ arguments that, because the restrictions are related to a valid trademark license agreement, the restrictions should be analyzed under the rule of reason.

With the application of the per se rule declining in recent decades, and with the application of the rule of reason on the rise, this decision (and the likely eventual appeal of this decision) will provide an interesting test of the per se rule’s application to modern business relationships that include both horizontal and vertical features.

Summary of Complaints

In 2013, two class action complaints were filed against the Blue Cross Blue Shield Association (“BCBSA” or the “Association”) and various individual Blue health plans (the “Blue Plans”) and affiliated companies by (1) providers of health care services (including ambulatory service centers and other facilities where medical or surgical procedures are performed), as well as suppliers of health care equipment and supplies, and (2) subscribers (i.e., individual customers and employers) of the Blue Plans. The cases were consolidated in federal court in Alabama.

Together, these complaints allege that the Association is owned and controlled by the 36 independent health insurance plans (the Blue Plans) that operate under the Blue Cross trademark and trade name. The Association operates as a licensor for the Blue Plans and is governed by a board of directors, two-thirds of which must be composed of either chief executive officers or board members of the various Blue Plans.

The plaintiffs allege that the Blue Plans competed vigorously with each other until the 1980s, when they began to enter into a series of trademark licensing agreements with the Association that forced them to consolidate and severely restricted their ability and incentive to compete. The plaintiffs contend that the Blue Plans are actual or potential competitors and are using the Association to unlawfully allocate markets by entering into per se illegal agreements. These agreements allegedly direct the Blue Plans in one or more of the following ways:

  • Prohibit the Blue Plans from competing against each other using the Blue name by allocating territories among the individual Blues[2];
  • Limit the Blue Plans from competing against each other, even when they are not using the Blue name, by mandating the percentage of their business that they must do under the Blue name, both inside and outside each Plan’s territory; and
  • Restrict the right of any Blue Plan to be sold to a company that is not a member of BCBSA, thereby preventing new entrants into the individual Blues’ markets.

The plaintiffs argue that these agreements have subjected health care providers who contract with the Blue Plans to less favorable terms than they would have achieved absent the conspiracy. The complaint filed on behalf of employers makes similar assertions, but alleges, among other things, that as customers, they are being forced to pay inflated premiums due to BCBSA’s illegal market division and other anticompetitive actions by the Association.

Brief Overview of Procedural History

The District Court previously denied a motion to dismiss and allowed the case to proceed, noting that the plaintiffs had “alleged a viable market-allocation scheme.”[3] The motions addressed in the April 5 decision included (1) the parties’ respective motions for partial summary judgment on the standard of review applicable to the plaintiffs’ claims under Section 1 of the Sherman Act, and (2) subscriber plaintiffs’ motion for partial summary judgment on the defendants’ “single entity” defense.[4]

The court emphasized that it would analyze the Blues’ agreement as a whole to determine the appropriate standard of review, rather than analyze each alleged restraint independently. It stated, “the court declines to examine the Blues’ [Exclusive Service Areas or ESAs], best efforts rules,[5] or brand restrictions in isolation where the Rule 56 evidence reveals that the Blues, through the Association, enacted new and unique aggregate competitive restrictions on top of the ESAs during the 1990s and 2000s.”[6] However, the court stated that it would analyze the BlueCard program[7] and the trademark uncoupling rules[8] separately.

The Per Se Standard vs. The Rule of Reason

Section 1 of the Sherman Act addresses anticompetitive conduct that results from concerted action. It prohibits “[e]very contract, combination in the form of trust or otherwise, in restraint of trade or commerce among the several States…”[9] Because an agreement is required ― unilateral activity by a single firm cannot be reached under Section 1. Thus, a plaintiff must show concerted action between two or more persons in order for Section 1 to apply. If an agreement is proven, the resulting conduct can violate Section 1 if it unreasonably restrains trade. Particularly egregious agreements, such as price-fixing, market allocation, or group boycotts, are viewed as per se unlawful. As such, an actual price increase or output reduction need not be proven but will be presumed to result from the conduct itself.

Other restrictive conduct is analyzed under the rule of reason. Pursuant to this analysis, the court will consider all of the facts and circumstances surrounding the conduct and engage in a balancing test to determine if the anticompetitive effects of the conduct outweigh the procompetitive benefits. Generally speaking, the vast majority of conduct in antitrust litigation is analyzed under the rule of reason. As such, the court’s decision to subject the Blue Cross restrictions to the per se rule is surprising, particularly since the opinion relies heavily on two Supreme Court cases that, while not overturned, predate most modern antitrust jurisprudence and have been criticized for their overly restrictive application of the per se rule to restraints that were ancillary to arguably legitimate joint ventures.[10]

The Court’s Analysis

1. The Precedential Value of Sealy and Topco

The crux of the court’s analysis turned largely on the proper application of United States v. Sealy, Inc., 388 U.S. 350 (1967) (“Sealy”), and United States v. Topco Associates, Inc., 405 U.S. 596 (1972) (“Topco”). The plaintiffs argued that “this case is on all fours with Sealy” and that “the Blues’ agreements are even more anticompetitive than the ones found to [be] unlawful per se in Sealy and Topco.” The defendants disagreed, arguing (1) that the market allocation schemes in those cases could not be compared to the trademark licenses issued by the Association, and (2) that “Sealy and Topco should be limited to their precise facts” because they are “inconsistent with modern antitrust jurisprudence.” The court sided with the plaintiffs.

In Sealy, the government challenged Sealy’s policy of granting exclusive territories to its licensees, a group of mattress manufacturers. The licensees agreed not to sell Sealy-branded products outside of their allotted geographic areas but could sell private label products in any geographic market area. The government argued that, because the licensees controlled the Sealy board of directors, the arrangement constituted a per se illegal horizontal market division. Sealy argued that the rule of reason should be applied since it was in a vertical relationship with its licensees. The Supreme Court disagreed, concluding that Sealy was “an instrumentality of the licensees for purposes of the horizontal territorial allocation.”[11] The Court characterized Sealy’s conduct as “an aggregation of trade restraints”[12] and viewed its organizational structure as an instrumentality of the individual manufacturers. In that case, what appeared at first blush to be a vertical restraint, was viewed by the Supreme Court as a horizontal restraint because horizontal competitors (the licensees) controlled the vertical relationship (i.e., they comprised the Sealy board of directors).

In Topco, several regional supermarket chains created and marketed the Topco private-label brand canned goods. The supermarkets owned all of Topco’s stock and divided the association’s voting rights equally. The Topco association allocated exclusive territories to its members. The government challenged the association’s exclusive territory policy as a per se illegal horizontal division of markets. Rejecting Topco’s claim that the policy was a reasonable way to prevent freeriding and to build the Topco brand as a competitor to national store brands, the Supreme Court held that the territorial restraints instituted by Topco were horizontal restraints, and, thus, per se violations of the Sherman Act.[13] As in Sealy, Topco’s members owned all of its stock and controlled the board of directors.

The court recounted that the Supreme Court is its own keeper of the viability of its jurisprudence and noted that both cases were cited as recently in 2010 in American Needle, which focused upon the single entity issue.[14] Although no Supreme Court merits rulings has been grounded upon Sealy or Topco in decades, the court believed that the holdings in both Sealy and Topco remain viable and have been recently cited by the Supreme Court “without in any way indicating that either case had been overruled or abrogated by later developments in antitrust law.”[15] According to the court, the Supreme Court has cited recent precedent “as authority for the application of the per se rule to horizontal market allocations.”[16]

2. Treatment of the Single Entity Defense

The defendants argued that the plaintiffs’ Section 1 claims fail as a matter of law because defendants operate as a single entity with respect to the governance of the Blue Marks. The defendants admit that the Blue Plans are separate entities for operational purposes, but assert that they should be viewed as a single entity because the Association now owns the Blue Marks and is responsible for licensing and protecting those Marks.

The court acknowledges that when the defendants merged the Associations, they formed a single entity to license the Blue Marks. However, the court did not view this fact as dispositive stating, “competitors are not allowed to make an otherwise horizontal agreement vertical by merely setting up a licensing corporation to ‘impose’ market-dividing agreements on its licensee-stockholders.”[17] Citing the Supreme Court’s decision in American Needle, the court notes that “[Courts] have repeatedly found instances in which members of a legally single entity violated § 1 when the entity was controlled by a group of competitors and served, in essence, as a vehicle for ongoing concerted activity.”[18] According to the court, the plaintiffs had also presented sufficient evidence to create a genuine issue of material fact as to the validity, enforceability — or both — of the Marks. Thus, the court denied the parties’ respective motions for summary judgment on the single entity issue because it could not say as a matter of law whether the defendants’ conduct can be shielded by the single entity defense. It found genuine issues of fact material fact as to whether the defendants are, in fact, a single entity.

3. Treatment of the Geographic Market Allocations

Both the provider and subscriber plaintiffs argue that the defendants’ geographic market allocations constitute per se anticompetitive conduct under Sealy and Topco. The plaintiffs argued that the defendant Blue Plans committed a per se violation by agreeing to allocate geographic markets for the sale of commercial health insurance, commercial health care financing services, or both. The provider plaintiffs also argue that the Blue Plans allocated markets for the purpose of contracting with health care service providers.

The defendants presented the following arguments in support of their assertion that the geographic market distributions should be analyzed under the rule of reason:

i. The Association’s rules, including the ESAs, have plausible procompetitive benefits because they have facilitated the creation of a new and unique product;

ii. The ESAs are procompetitive because they incentivize Blue Plans to focus on the local needs of their members and providers;

iii. Courts lack experience with the types of service areas at issue in the case because the service areas arose organically from the predecessors to the current Plans’ use of common law trademarks;

iv. Topco and Sealy are distinguishable from the service areas at issue; and

v. The challenged restraints are not purely horizontal because some restraints are historically the product of vertical arrangements between insurance plans and the American Hospital Association or the American Medical Association.

Rejecting the defendants’ arguments, the court concluded that it need not determine whether the Blue Plans’ service area allocations alone constitute a per se violation of Section 1 because, “Plaintiffs have presented evidence of an aggregation of competitive restraints — namely, the adoption of ESAs and, among other things, best efforts rules — which, considered together, constitute a per se violation of the Sherman Act.”[19] The court explained several reasons for its decision.

First, the court viewed the Association as a licensee-controlled entity and not a vertical licensor. The Association bylaws state that the Association is funded and controlled by the Blue Plans, which receive licenses to use the Blue Marks. The Association’s board of directors consists of the CEOs of all licensee Plans and the president of the Association, and the Association describes itself as an organization controlled by the Blue Plans. The Blue Plans control the terms of each Blue’s License Agreement and must act collectively to amend the License Agreement’s basic brand principles. The court found the Association comparable to the licensee-controlled entities in Sealy and Topco, which dictated that the ESAs established by the Association be examined as horizontal allocations rather than vertical ones. According to the court, the allocation of the areas was the result of the Association’s plan to (1) consolidate Blue Plans, and (2) issue new licensing agreements reflecting the competitive restraints agreed to by a majority of the Blue Plans.

Second, the court rejected the defendants’ argument that the Supreme Court’s American Needle opinion limited the application of Topco and Sealy to licensor entities that are formalistic shells or sham entities. The court explained that American Needle discussed Sealy and Topco in relation to the single entity defense, not in the context of the per se rule established in those cases. It also reiterated that the Supreme Court has not expressly limited the scope of Sealy’s and Topco’s development of the per se rule in market allocation cases to instances where the licensor firm merely acts as a formalistic shell.

Third, the court found that the license conditions between the Association and the individual Blue Plans to be directly comparable to the license conditions enacted by the defendants in Sealy and Topco. The court highlighted the fact that the Blue Plans had instituted at least two additional restraints besides the ESAs — they limited the output of non-branded health insurance and related health financing products by the licensees within the licensee’s service area(s), and they limited the output of non-branded health insurance and related health financing products by the licensees nationwide. As such, it found that “the restraints of trade created by the Licensing Agreements, and the Association’s rules appear even more restrictive than those at issue in Topco and Sealy because the licensees in those cases remained free to sell any amount of non-branded products.”[20]

4. Treatment of the National Best Efforts Rule

The National Best Efforts rule requires a Blue Plan to derive at least sixty-six and two-thirds percent (66 2/3%) of its national health insurance revenue from its Blue brand. Thus, it effectively limits the health insurance revenue any Blue Plan may generate from any non-Blue brand. The court characterized this rule as an output restriction on a Blue Plan’s non-Blue branded business. The defendants argued that the rule promoted collaboration among Blue Plans, encouraged Plans to invest in the Blue Marks, and prevented the transfer of “the immense goodwill” associated with the Blue Marks to other brands. The court found that the National Best Efforts restrictions on non-Blue branded business clearly unnecessary for the product to be “available at all,” noting that health insurance is made available to consumers without such restraints. Accordingly, the court found that the rule constituted a per se violation of the Sherman Act, particularly when layered on top of other anticompetitive restrictions imposed on licensees by the defendants.[21]

5. Treatment of the BlueCard Program, Boycotts, and Other Restraints

The court also analyzed the competitive impact of the BlueCard program, both as a potential price-fixing vehicle and as a group boycott. The court recognized that the Blue Plans integrated certain assets to create the BlueCard program and found similarities between the integrative aspects of the BlueCard program and a traditional joint venture. These facts, among others, weighed “in favor of applying the rule of reason to Provider Plaintiffs’ price-fixing claims.”[22] In addition, the court concluded that it would review the alleged boycott of health care providers and services outside of a particular Blue Plan’s service area under the rule of reason.


In light of the continued uncertainty regarding health insurance markets, the various mergers involving insurance companies, and various policy proposals that insurance companies should be permitted to sell health insurance across state lines, this has always had the potential to be a very important case — both as a matter of antitrust law and for its market implications. The defendants have already announced their intention to appeal. It is questionable whether this application of Sealy and Topco can survive the appellate gauntlet, including potentially the Supreme Court; however, even if the defendants successfully overturn the application of the per se rule, they will still face continued litigation under the rule of reason standard. It will be an important case to follow, and it will be interesting to see whether the Department of Justice or any state attorneys general become involved in any appeals.


 In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-cv-20000-RDP, 2018 U.S. Dist. LEXIS 58107 (N.D. Ala. Apr. 5, 2018).

 The plaintiffs contend that the defendants have accomplished this by dividing U.S. health care markets for insurance among themselves by dividing the nation into exclusive service areas allocated to individual Blue Plans. Through the license agreements, guidelines, and membership standards enforced by the Association, each Blue Plan licensee agrees that neither it nor its subsidiaries will compete under the licensed Blue Cross trademarks and trade names outside of a designated “Service Area.”

3  In re Blue Cross Blue Shield Antitrust Litig., 26 F. Supp. 3d 1172 (N.D. Ala. 2014).

4  The court found it necessary for the parties to conduct discovery before deciding the appropriate standard of review for the Sherman Act claims.

5  Under the Local Best Efforts Rule, at least 80% of a Blue Plan’s annual health revenue from within its designated service area must be derived from services offered under the Blue Marks, which refers to the Blue Cross organization and its trademarks. Under the National Best Efforts Rule, a Blue Plan was required to derive at least 66 2/3 % of its national health insurance revenue under its Blue brand.

6  Blue Cross Blue Shield Antitrust Litig, 2018 U.S. Dist. LEXIS, at *32.

7  The BlueCard Program required Blue Plans to make their local provider discounts available to all Blue members, even if they lived in another Blue Plan’s service area. Participation in the BlueCard program is a requirement of the License Agreement between the Association and each individual Blue Plan.

8  Under the Uncoupling Regulations, once a Blue Plan chooses to use a name in connection with the Blue Marks, it cannot thereafter “uncouple” that name from the Blue Marks.

9  15 U.S.C. §1.

10  See 11 HOVENKAMP, ANTITRUST LAW, ¶ 1910c2 (criticizing the Topco Court’s application of a per se rule against horizontal territorial restraints).

11  Id. at 354.

12  Id. at 354-55.

13  Id. at 608.

14  Am. Needle, Inc. v. Nat’l Football League, (560 U.S. 183) (2010).

15  Blue Cross Blue Shield Antitrust Litig, 2018 U.S. Dist. LEXIS, at *44.

16  Id. at *43.

17  Id. at *45-6.

18  American Needle, Inc. v. NFL, 560 U.S. 195 (2010).

19  Blue Cross Blue Shield Antitrust Litig, 2018 U.S. Dist. LEXIS, at *53.

20  The court rejected the defendants’ attempts to argue that the ESAs, along with other restrictions, facilitate the creation of new health insurance products. According to the court, the plan to go to ESAs constituted a new marketing/sales strategy, not a new product. The products – commercial insurance and insurance services – remain the same.

21  It also concluded that the rule of reason was appropriately applied to the Trademark Uncoupling Rules.

22  Blue Cross Blue Shield Antitrust Litig, 2018 U.S. Dist. LEXIS, at *78.

[View source.]

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.

© Mintz | Attorney Advertising

Written by:


Mintz 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.