Volcker Rule 2.0: First Major Rule Revisions Proposed

by Shearman & Sterling LLP
Contact

Earlier this week, the Federal Reserve Board and other federal regulatory agencies (the “Agencies”) responsible for implementing the Volcker Rule agreed to seek public comment on proposed changes (the “Proposed Rule”) to the regulations implementing the Volcker Rule, one of the hallmark provisions of the landmark 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. Consistent with prior rulemaking regarding the Volcker Rule, this proposal to streamline the Volcker Rule is lengthy, running to 373 pages with 342 specific questions posed for comment. The feedback received in response to these comments has the potential to make any revisions to the final rule more far-reaching than the specific changes in the Proposed Rule.

The changes set forth in the Proposed Rule appear to be intended to streamline compliance burdens under the Volcker Rule rather than to bring about significant changes to actual trading and other banking activity. Senior agency officials noted that the proposed changes reflect several years of regulators’ experience implementing the Volcker Rule, as opposed to a political effort by recent appointees under the Trump administration. The following provisions are among the more significant changes in the Proposed Rule:

  • replacing the intent prong of the trading account definition and its 60-day “trading account” presumption with an accounting-based prong and a limited rebuttable presumption that trading desks subject only to the accounting prong that fall within a $25 million profit and loss threshold comply with the Volcker Rule;
  • expanding the market risk capital prong of the trading account definition to encompass foreign banks that are subject to Basel market risk capital requirements under their home country rules;
  • adding a rebuttable presumption of compliance with the current RENTD requirements for the market-making and underwriting exemptions when a banking entity establishes specified internal risk limits, so long as such risk limits are appropriate;
  • eliminating the correlation analysis requirement for using the hedging exemption;
  • liberalizing the so-called TOTUS exemption for proprietary trading outside the United States by foreign banks by eliminating the “funding” restriction, permitting trades to be conducted with or through a U.S. entity, and permitting U.S.-based personnel to be involved in arranging and negotiating (but not executing) transactions;
  • for covered funds that a banking entity does not organize or offer, removing the requirement that the banking entity include in its aggregate fund limit and capital deduction the value of any ownership interests in covered funds acquired or retained under the underwriting or market-making exemptions;
  • dividing banks into three tiers for compliance purposes, and basing compliance obligations on the amount of a banking entity’s trading assets and liabilities, with the most stringent requirements applying only to the 18 banking organizations with over $10 billion in trading assets and liabilities (not counting trading assets and liabilities involving obligations of or guaranteed by the United States or any agency of the United States); and
  • removing the CEO attestation requirement regarding compliance with the Volcker Rule for banks with the lowest trading activity and presuming that such banks are in compliance with the Volcker Rule (based on this rebuttable presumption of compliance, such banks would not be required to establish or maintain a separate Volcker Rule compliance program, unless directed to do so by the appropriate Agency).
The Proposed Rule also refrains from specific proposals regarding certain difficult issues that have arisen under the Volcker Rule and instead requests further comment on those matters. These include the following:
  • the definition of “covered fund” is left unchanged, although comment is requested on various aspects of the definition;
  • the “Super 23A” provisions of the Volcker Rule remain in place, although comment is sought on whether to apply the exemptions of Section 23A of the Federal Reserve Act to the prohibition of Super 23A; and
  • the treatment of foreign private funds as banking entities remains unresolved, although comment is requested and the no-action relief granted in July 2017 will be extended until July 21, 2019.

These and other highlights of the proposed revisions are described in more detail below. Changes to the statutory provisions of the Volcker Rule made by legislation enacted on May 24, 2018, will be implemented through a separate rulemaking, though the Agencies have indicated that they will not enforce the Volcker Rule in a manner inconsistent with the statutory amendments.[1] In addition to the Federal Reserve Board, the other Agencies responsible for administering the Volcker Rule are the Federal Deposit Insurance Corporation (the “FDIC”), the Office of the Comptroller of the Currency (the “OCC”), the Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission. Comments on the Proposed Rule are due within 60 days after publication in the Federal Register.

While certain changes to the Volcker Rule require Congressional action, the proposed revisions appear to offer significant relief to the financial industry, especially with respect to compliance burdens under the Volcker Rule. Moreover, recent legislation also accomplished certain changes that reduce the compliance burdens of the Volcker Rule. As a result, the Volcker Rule of 2019 is likely to look significantly different from the Volcker Rule of 2017. Nevertheless, the changes are not of a type that should result in significant changes to the activities of trading desks at banking organizations, much less the return of true proprietary trading desks at large banking organizations.

Volcker Rule 2.0 in Context

The Volcker Rule applies to banking entities, which is a broadly defined term. It covers not only FDIC-insured banks and thrifts, but also their affiliates, which include companies that control such a bank or thrift. Foreign banks and their affiliates are also covered under the provision that encompasses any company that is treated as a bank holding company for purposes of Section 8 of the International Banking Act of 1978, e.g., foreign banks that operate a branch or agency office in the United States.

From the time they were originally proposed in 2011 and adopted in 2013, the Volcker Rule regulations have been recognized as exceedingly complex, ambiguous, and requiring extensive compliance efforts.[2] Unsurprisingly, calls for reform have come from various sectors. In October 2017, the U.S. Department of the Treasury issued a report (the “Treasury Report”) in response to an executive order issued by President Trump soon after he took office calling for a study of financial services regulation in the United States. In addition, the OCC solicited public comment on potential reforms to the Volcker Rule regulations in the summer of 2017. Prominent criticisms of the Volcker Rule have focused on its general complexity, the compliance burden imposed on banking entities, especially those with limited trading or covered funds activities, the extent to which exemptions intended to provide relief to foreign banks operating outside the United States (as well as other exemptions) have been unworkable as a practical matter, and inadvertent capture of foreign private funds as banking entities that are subject to the Volcker Rule. The combination of new senior leadership at the regulatory agencies, together with several years of experience in implementing the Volcker Rule, have now resulted in a concrete proposal for regulatory change. The proposed changes to the Volcker Rule regulations are generally in line with the proposals included in the Treasury Report. Absent statutory changes to the Volcker Rule, there are limits on how much the Agencies can change the regulations. For example, Congress recently passed a bill that exempted banks with limited trading activity and less than $10 billion in total consolidated assets from the Volcker Rule, a change that would be beyond the regulatory authority of the Agencies. Nevertheless, the proposed changes appear to offer significant simplification and relief with respect to some aspects of the Volcker Rule, and the Agencies have posed numerous questions for specific comment that indicate more significant changes may be made in the final regulation if public comments in response to these questions provide substantive support for more wide-ranging changes.

Highlights of the Proposed Revisions

Proprietary Trading

The Volcker Rule prohibits banking entities from engaging in proprietary trading of financial instruments, which is generally defined as trading as principal for short-term gain as well as trading undertaken by dealers and trading subject to the market risk capital rule. These prohibitions are subject to various exceptions and exemptions.

Definition of Trading Account—Elimination of the 60-Day Presumption

The Volcker Rule currently includes a three-prong definition of trading account. The first two prongs are based on trading activity that is subject to the market risk capital rule and to trading activity conducted by a registered dealer. The third prong is an intent-based prong relating to trading for short-term profit and includes a rebuttable presumption that the purchase and sale of a financial instrument within 60 days constitutes proprietary trading. Moreover, there is no presumption that holding an instrument for longer than 60 days (or any other minimum period) does not constitute proprietary trading.

The Proposed Rule eliminates the 60-day presumption and replaces the intent-based test with an accounting-based test that looks to whether the account is used to trade financial instruments whose value is recorded at fair value on a recurring basis under applicable accounting standards. Moreover, the Proposed Rule would establish an optional rebuttable presumption of compliance with the Volcker Rule for trading desks that are subject only to the accounting prong (i.e., where the desks are not part of a registered dealer and where the positions are not subject to the market risk capital rule), based on certain conditions, including a $25 million limit on the absolute value of the daily gain and loss figures for the preceding 90-calendar-day period measured at the trading desk level.

Market Making and Underwriting Exemptions—Presumption of Meeting RENTD

The Volcker Rule includes exemptions for underwriting and market-making activities. However, those exemptions rely in part on the banking entity demonstrating that its positions are designed not to exceed the reasonably expected near-term demand of clients, customers or counterparties (RENTD). Demonstrating such demand can be a challenge, especially for certain financial instruments.

The Proposed Rule includes a rebuttable presumption that a banking entity meets the RENTD requirement if the banking entity establishes and enforces internal risk limits on its underwriting and market-making positions, and contemplates that those risk limits could change to reflect customer demand. Those risk limits are subject to supervisory review and oversight, but the Proposed Rule essentially changes the operation of the Volcker Rule from a need-to-prove compliance to a presumption of compliance. The compliance program requirements for market making and underwriting also are tailored under the Proposed Rule so that banking entities with significant trading assets and liabilities would continue to be required to have a comprehensive internal compliance program as a condition for relying on these exemptions; however, banking entities with moderate or limited trading assets and liabilities would not have specific compliance program requirements. The release also explores whether the exemptions should be expanded for swaps entered into with borrowers in connection with lending activity.

Liquidity Management

The Volcker Rule permits banking entities to purchase and sell securities for liquidity management purposes, subject to certain requirements. A difficulty with this exemption from the proprietary trading ban is that banking entities also trade other instruments (that are not securities) for liquidity management purposes. The trading of nonsecurities does not qualify for the exemption.

The Proposed Rule would expand the liquidity management exemption to permit the use of deliverable foreign exchange forwards and swaps, and physically settled cross-currency swaps for liquidity management purposes. Cash settled swaps (including non-deliverable FX forwards) would not be covered by the liquidity management exemption.

Trading Errors

The Proposed Rule would include an exemption from the proprietary trading prohibition for trading undertaken to correct a trading error made in connection with customer-driven or other permissible transactions.

Hedging Exemption—Eliminating the Correlation Analysis Requirement

The Volcker Rule exempts trading undertaken for certain risk-mitigating hedging purposes. However, the exemption requires a banking entity to show that a hedging activity demonstrably reduces or mitigates specific risks.

The Proposed Rule would eliminate the correlation analysis requirement as well as the “demonstrably” reduces or otherwise significantly mitigates specific risk requirement from the exemption. Furthermore, for banking entities without significant trading assets and liabilities, the Proposed Rule would eliminate the requirement for a separate internal compliance program for risk-mitigating hedging and other requirements. Even for banking entities with significant trading assets and liabilities, the Proposed Rule would eliminate the enhanced documentation requirements for certain commonly used hedging instruments whose use is pre-approved by the banking entity.

Foreign Banks—Seeking to Make the TOTUS Exemption Workable

The Volcker Rule intended generally to permit foreign banks to trade solely outside the United States (the so-called TOTUS exemption) without being subject to the Volcker Rule’s prohibitions. However, it has been difficult for foreign banks to comply with the terms of the exemption. One of the major challenges is that no funding for proprietary trading may come from the foreign bank’s U.S. operations, and yet money is fungible and so proving an absence of funding in relation to a particular transaction can be very challenging, and trading may not take place with or through a U.S. entity.

The Proposed Rule would remove both of those restrictions. Moreover, the Proposed Rule would relax a restriction on personnel in the United States having virtually any involvement in a transaction. In particular, it appears that personnel located in the United States would be able to be involved in arranging or negotiating transactions, but not executing or otherwise being responsible for the foreign banking entity’s decision to enter into a transaction.

Hedge Funds and Private Equity Funds

The Volcker Rule also prohibits banking entities from acquiring ownership interests in, sponsoring, and having certain other relationships with, hedge funds and private equity funds, referred to in the Volcker Rule regulations as “covered funds.” The proposed revisions address several provisions regarding covered funds.

Ownership of Covered Funds in an Underwriting or Market-Making Capacity

The Volcker Rule currently permits banking entities to acquire ownership interests in covered funds only under limited circumstances. In addition, the Volcker Rule imposes various ownership caps on such investments. One of the caps limits a banking entity’s ownership interests in covered funds held under the asset management exemption and the underwriting and market making exemptions to 3% of the banking entity’s tier 1 capital. Such holdings are also subject to a capital deduction requirement.

The Proposed Rule relaxes these limits. In particular, ownership interests in covered funds that a banking entity does not organize and offer (i.e., under the asset management exemption) but acquires under the underwriting and market-making exemptions would not count toward the banking entity’s aggregate 3% of capital fund limit and capital deduction.

The Definition of Covered Fund is Unchanged, but Comment is Requested

Although the Proposed Rule would not amend the definition of covered fund, the Proposed Rule seeks comment on this definition, including whether the Agencies should adopt characteristics-based exclusions to the definition of covered fund, such as by excluding funds that do not meet the definition of either hedge fund or private equity fund in the SEC’s Form PF. The Proposed Rule also requests comment on all aspects of the Volcker Rule regulations regarding securitizations, including provisions that classify an ownership interest as one that gives the holder the right to participate in the selection or removal of a general partner or person acting in a similar capacity. Industry commenters have argued that that this provision limits participation by banking entities in the market for debt instruments issued by CLOs.

Super 23A Prohibitions—Comment Requested on Adding Exemptions to Super 23A

The so-called Super 23A provisions of the Volcker Rule generally apply the restrictions of Section 23A of the Federal Reserve Act on “covered transactions” between a member bank and its affiliates (e.g., purchase of assets from, extension of credit to, derivative transaction with) as flat prohibitions on such transactions between a covered fund and a banking entity (and the affiliates of such banking entity) that sponsors or advises or organizes and offers such fund. The rule prohibits covered transactions as if the fund were an “affiliate” and the banking entity were a member bank for purposes of Section 23A. The result is that a banking entity and its affiliates may not, for example, lend money to a covered fund that the banking entity sponsors or advises. Nor may the banking entity purchase assets from such covered fund or engage in other covered transactions with such fund.

Section 23A itself has various exemptions from its restrictions (e.g., purchasing certain liquid assets), but Super 23A does not incorporate those exemptions. The Proposed Rule seeks comment on whether to make available the Section 23A exemptions in the Super 23A context. Doing so would permit banking entities that sponsor or advise or organize and offer covered funds to engage to a limited extent in covered transactions with the covered funds they sponsor or advise or organize and offer.

Risk-Mitigating Hedging Involving Covered Funds

The Volcker Rule permits banking entities to acquire ownership interests in covered funds to hedge employee compensation arrangements. This is an exemption to the general prohibition on acquiring ownership interests in covered funds.

The Proposed Rule would expand this exemption to permit a banking entity to acquire ownership interests in a covered fund when the banking entity is acting as an intermediary on behalf of a customer that is not itself a banking entity to facilitate the exposure by the customer to the profits and losses of the covered fund, subject to various conditions, including an internal compliance program reasonably designed to ensure compliance with the requirements of the exemption.

The SOTUS Exemption—Covered Fund Activities Conducted by Foreign Banking Entities Outside the United States

The Volcker Rule purports to permit foreign banks to sponsor or acquire ownership interests in covered funds outside the United States. However, the regulatory provisions implementing that exemption (the SOTUS exemption) include a marketing restriction that makes the exemption unavailable if ownership interests are sold pursuant to an offering that targets residents of the United States.

The Agencies issued FAQ 13 to clarify that the marketing restriction applies only to offerings in which the banking entity claiming to rely on the exemption participates. The Proposed Rule basically incorporates FAQ 13 into the language of the SOTUS exemption.

However, FAQ 13 and the Proposed Rule further provide that any banking entity that acts directly or indirectly as sponsor, investment adviser or in a similar capacity to a covered fund is deemed to participate in any offer or sale of an interest in such covered fund. The practical impact appears to be that the SOTUS exemption permits foreign banking entities to invest in funds sponsored or advised by third parties, even if interests in the fund are sold to residents of the United States, so long as the foreign banking entity does not participate in such offers or sales.

Foreign Excluded Funds—Status as Banking Entities

The Volcker Rule generally does not treat covered funds as banking entities. Instead, a banking entity’s relationship with a covered fund is governed by the Volcker Rule’s various limitations and prohibitions, but a covered fund associated with a banking entity may, for example, engage in proprietary trading.

One of the apparent unintended consequences of the Volcker Rule regulations is that a foreign private fund that is not offered to residents of the United States and therefore does not rely on exemptions under Sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940 is not itself a covered fund. However, if the foreign banking entity that sponsors such a fund controls the fund through governance arrangements or otherwise, the fund itself will be treated as a banking entity that is subject to the Volcker Rule.

The Agencies recognize this quandary and the relevant Agencies provided no-action relief in July 2017 for one year. The Proposed Rule would extend the no-action relief until July 21, 2019, and requests comment on how this issue should be addressed.

Compliance Program Obligations

The Volcker Rule requires banking entities to adopt policies and procedures to address compliance with the requirements of the Volcker Rule.

The Proposed Rule classifies banking entities into three categories and imposes more stringent requirements on those banking entities with the highest level of trading activity (i.e., with trading assets and liabilities of $10 billion or more, not counting trading assets and liabilities involving obligations of or guaranteed by the United States or any agency of the United States). Those banking entities with the lowest level of trading activity, by contrast, are, in effect, exempt from establishing or maintaining a separate Volcker Rule compliance program. The accompanying chart shows the basic categories and compliance obligations.

COMPLIANCE CATEGORY

VALUE OF TRADING ASSETS AND LIABILITIES

COMPLIANCE PROGRAM REQUIREMENTS

CEO ATTESTATION REQUIREMENT?

Significant Trading Assets and Liabilities[3]

≥ $10 billion

Six-pillar compliance program,[4] metrics reporting, underwriting and market-making compliance program, covered fund documentation requirement

Yes

Moderate Trading Assets and Liabilities[5]

< $10 billion, ≥ $1 billion

Simplified compliance program.

Yes

Limited Trading Assets and Liabilities[6]

< $1 billion

Presumed to be in compliance with the Volcker Rule. No compliance program required unless directed, then a simplified compliance program.

No

 
With respect to foreign banks, those with less than $1 billion in worldwide trading assets and liabilities will be considered to have limited trading assets and liabilities, and therefore exempt from establishing a specific Volcker Rule compliance program. Only those foreign banks with trading assets and liabilities of $10 billion or more in their combined U.S. operations would be considered to have significant trading assets and liabilities.

The Proposed Rule also eliminates the prescriptive Enhanced Minimum Standards for Compliance Programs (Enhanced Compliance Program; Appendix B to the Volcker Rule). These standards apply to banking entities with total consolidated assets exceeding $50 billion (total U.S. assets in the case of a foreign banking entity). Under the Proposed Rule, the Enhanced Compliance Program would be eliminated, but banking entities with significant or moderate trading assets and liabilities would remain subject to a CEO attestation requirement (which is part of Appendix B).

Metrics Reporting Requirements

The Agencies have proposed several changes to metrics reporting requirements in the Proposed Rule. Reporting and recordkeeping requirements are tailored to the banking entity’s size and level of trading activity, with some metrics completely eliminated and some new metrics added. Timelines for reporting metrics are extended for certain firms. The Agencies have also requested comment on whether metrics reporting should be centralized into a single collection point.

Proposed changes to metrics reporting requirements include adding qualitative information schedules, removing certain metrics, such as inventory aging for derivatives and stressed value-at-risk for risk mitigating hedging desks, and switching reporting of metrics to a standard XML file format. Under paragraph III.b to the Appendix to the Proposed Rule, the Agencies would collect descriptive information for each trading desk in order to better evaluate quantitative metrics. Seven categories of qualitative data are proposed: trading desk name and trading desk identifier, type of covered trading activity, trading desk description, types of financial instruments and other products, legal entities the trading desk uses, legal entity type identification, trading day indicator, and currency reported/currency conversion rate. The Proposed Rule would also double the allowable metrics reporting time, from 10 to 20 days, for the largest firms (those with $50 billion or more in trading assets and liabilities).

Recent Statutory Changes

As noted above, Congress recently passed legislation that completely exempts smaller banks with limited trading activity from the Volcker Rule.

In addition, the recent legislation amends the Volcker Rule by removing covered fund naming restrictions in certain instances in which a banking entity organizes and offers a covered fund. The naming restriction generally prohibits such a fund from sharing a name with the banking entity that sponsors it or with an affiliate of such banking entity, but the new statute permits name-sharing subject to certain limits. The Agencies intend to issue a separate rule to address these legislative changes, but in the interim will enforce the Volcker Rule in a manner consistent with the statutory changes.

Other Provisions

This note provides a brief summary of the Proposed Rule. As noted above, the Proposed Rule sets out 342 specific questions for comment, and requests general comment on the proposed revisions to the Volcker Rule. It appears that comments submitted in response to these questions may have an important bearing on the nature of the final rule that the Agencies ultimately adopt.

Footnotes

[1]  For an overview of The Economic Growth, Regulatory Relief, and Consumer Protection Act, you may wish to refer our client publication “First Major Dodd-Frank Reform Bill Signed Into Law’”, available at: https://www.shearman.com/perspectives/2018/05/first-major-dodd-frank-reform-bill.
[2]  Since the Volcker Rule regulations were published, the Agencies have issued 21 FAQs explaining the application of various provisions of the regulation. The FAQs are available at: The Fed - Frequently Asked Questions.
[3]  Proposed Rule §_.2(t).
[4]  A six-pillar compliance program must include written policies and procedures, internal controls, a management framework, independent testing and audit, training for relevant personnel, and recordkeeping requirements. Volcker Rule Regulations §_.20(b).
[5]  Proposed Rule §_.2(v).
[6]  Proposed Rule §_.2(ff).

 

Written by:

Shearman & Sterling LLP
Contact
more
less

Shearman & Sterling 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.