“Yet Now, Federated Along One Keel” – United States Supreme Court Resolves Fifth/Ninth Circuit Split, Unequivocally Rejects Punitive Damages For General Maritime Law Unseaworthiness Claims

Baker Donelson
Contact

Baker Donelson

Yet now, federated along one keel…
MOBY DICK, HERMAN MELVILLE, Chap. XXVII

In the wake of Justice Thomas’s landmark decision in Atlantic Sounding Co. v. Townsend, American maritime jurisprudence was left with its “keeled hulls split at sea” due to a circuit split between the Fifth and Ninth Circuits over a simple but hugely important question: do seamen have a claim for punitive damages under the general maritime law cause of action for unseaworthiness? This question was the fulcrum for leverage in personal injury claims across the country: after Townsend maritime personal injury plaintiffs – pursuing the “white whale” threat of exponentially large exemplary/punitive damage awards – routinely began to include punitive damage claims in their petitions/complaints, usually linked to an unseaworthiness or GML negligence claim, ostensibly as a bargaining chip in settlement/case-valuation negotiations.

Now, however, federal maritime common law has been reunified – “federated along one keel” – with the Supreme Court’s decision in Dutra Corp. v. Batterton, which has squarely held that a seaman “may not recover punitive damages on a claim of unseaworthiness.” This decision has settled a decade’s worth of uncertainty for the lower courts, alternative dispute resolution intermediaries, and practitioners, by removing the punitive damage “bargaining chip” from the table.

HISTORICAL PURSUIT OF THE PUNITIVE DAMAGE “WHITE WHALE”

The context of the pre-Batterton split and the larger historical framework for seamen’s claims – a history that the Batterton majority focused on in its analysis – is helpful for understanding the importance and effect of the decision. During (roughly) the first century of the Republic, American merchant seamen were protected solely via two causes of action:

1) the ancient right of “maintenance and cure,” (M&C) a rudimentary worker’s compensation scheme requiring that a shipowner pay for the medical treatment (cure) and living expenses (maintenance) – tantamount to what the seaman would have been receiving while aboard the ship – whenever a seaman was injured while in the service of the vessel and regardless of any fault; and

2) the “warranty of seaworthiness” owed by the shipowner to the seaman – or, phrased from the seaman’s perspective, the right to assert an injury claim for “unseaworthiness” of the vessel on which he served, a relatively late development (early twentieth century) tantamount to a strict liability claim against the owner for injuries caused by an unseaworthy condition on the vessel.

These two jurisprudential causes of action emanated from the admiralty courts’ traditional view that seaman were “the wards of admiralty” entitled to and requiring protection of the courts due to their unequal bargaining power, the inherent dangers of their profession, as well as their stereotyped reputation for profligacy and intemperance: “[seamen] are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached.” Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823). Critically, however, and by express recognition of the Supreme Court in The Osceola, a seaman had no free-standing cause of action for negligence against the vessel owner/employer under general maritime law: “the seaman is not allowed to recover an indemnity for the negligence of the master [or owner], or any member of the crew… but is entitled to [M&C, regardless of fault].” 189 U.S. 158, 175 (1903).

Thus, as things stood in the first decades of the 20th century, a seaman’s only right to sue a vessel owner/employer was for no-fault M&C and the pseudo-strict-liability-based unseaworthiness.

This all changed with the passage of the Jones Act in 1920 (currently found at 46 U.S.C. §30104). This statute legislatively overruled The Osceola by specifically creating a stand-alone, statutory negligence cause of action for seamen – outside of the jurisprudentially created M&C and unseaworthiness causes of action – under the same parameters as the Federal Employer’s Liability Act (FELA, 45 U.S.C. §51-59, the federal statute establishing a negligence claim for railroad employees).

Indeed, the Jones Act incorporates the entirety of FELA by reference, including (as the Supreme Court has confirmed) relevant FELA jurisprudence. Kernan v. Am. Dredging Co., 355 U.S. 426, 439 (1958) (“the entire judicially developed doctrine of liability, granted to railroad workers by the FELA” is incorporated into the Jones Act); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 231 (5th Cir. 2013) (“decisions in FELA cases are applicable to cases brought under the Jones Act”).

The FELA, however, expressly limits recovery for the statutory negligence cause of action to “liab[ility] in damages” (45 U.S.C. §51), which the Supreme Court has construed to include “pecuniary damages . . . only.” Mich. Cent’l RR Co. v. Vreeland, 227 U.S. 59, 69 (1913). And as the Batterton Court itself recognized, “Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA.”

And as the final note in this pre-Batterton background, the FELA limitation to “pecuniary loss” was the basis for the Supreme Court’s landmark decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which recognized a general maritime law cause of action for wrongful death of a seaman in state territorial waters, but limited that claim to “pecuniary loss” based on the fact that Congress’s expressly limited Jones Act negligence cause of action should not be expanded by judicial fiat to a wrongful death claim for the very same seaman who would be limited to pecuniary damages under the Jones Act if he were alive and suing in his own right.

TOWNSEND – “NAILING THE GOLD TO THE MAST” ((MOBY DICK, CH. XXXVI)

Miles was applied unquestionably for decades to preclude punitive damage claims by seamen, until the Supreme Court’s 2009 ruling in Townsend, which held that a seaman did have a claim for punitive damages based on an employer’s “willful or wanton failure to comply with the duty to pay [M&C].” 557 U.S. 404, 424 (2009).

Justice Thomas wrote the majority opinion in Townsend, which focused on the fact that pre-Jones Act jurisprudence dating back to the early 19th century recognized the right to claim punitive damages, and specifically for an employers’ gross dereliction of its M&C duties – i.e. one of the two pre-Jones Act jurisprudential GML causes of action for seamen. Interestingly, Justice Alito dissented in Townsend, on the basis that the majority’s rule came too close to conflating the legislatively limited negligence cause of action in the Jones Act with the jurisprudentially developed law allowing punitive damages, a result that Miles specifically warned against: “if a form of relief is not available on a statutory claim, we should be reluctant to permit such relief on a similar claim brought under general maritime law.” Townsend, 557 U.S. 404, 426 (2009) (Alito, J., dissenting).

Like the doubloon Ahab nailed to the mast of the PEQUOD, the Townsend decision encouraged pursuit of punitive damages that had previously been deemed unrecoverable. And even though Townsend was limited within its terms to punitive damages for the willful/wanton refusal of M&C, practitioners on behalf of plaintiff’s latched onto some of Justice Thomas’s broad wording that “that nothing in Miles or the Jones Act eliminates” punitive damages for seaman to begin asserting punitive damages claims for unseaworthiness, the second of the two pre-Jones Act jurisprudent GML causes of action for seamen.

“THE DRAMA’S DONE” (MOBY DICK, EPILOGUE) – THE BATTERTON RESOLUTION

Finally, after a decade of uncertainty in the courts and among litigants, the Supreme Court in Batterton has returned the punitive damage Leviathan to the depths. Indeed, the alignment of the Justices in Batterton underscores the comprehensiveness of its rejection of punitive damages for seamen outside the M&C cause of action: Justice Alito, the dissenter to Justice Thomas’s Townsend ruling, wrote the majority opinion in Batterton, in which Justice Thomas joined. Thus, to the extent Justice Thomas’s broad language in Townsend served as the impetus for the post-Townsend chase for punitive damages in unseaworthiness claims, his joining in Justice Alito’s Batterton majority seemingly forecloses any reliance on Townsend in this regard.

As an initial and important procedural point of emphasis, Justice Alito leads off his Batterton opinion re-acknowledging that the Supreme Court, and federal admiralty courts in general, are responsible for developing the general maritime law of the United States (as Justice Kavanaugh recently did himself in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019), another of this terms multiple maritime decisions). That said, the landmark decision in Miles held that this jurisprudential prerogative must yield when legislative enactments, and the policies behind them, have addressed a particular scenario: “[federal courts] should look primarily to… legislative enactments for policy guidance,” and may supplement such enactments only when strong considerations of uniformity of maritime law prevail. Batterton, p. 10 (citing Miles, 498 U.S. at 27).

With this analytical framework in mind, Justice Alito’s opinion initially focused on the fact that the principle of unseaworthiness had its jurisprudential roots not as a cause of action for personal injury, but rather in quasi-contractual contexts, namely (1) a sailor’s right to wages after refusal to work on an unseaworthy vessel; (2) a sailor’s defense to criminal charges for refusing to obey orders; and (3) an insurer’s right to deny coverage for an unseaworthy vessel. In fact, it was not until The Osceola – which was ultimately nullified by the Jones Act – that the Supreme Court formally acknowledged unseaworthiness as an essentially no-fault/strict liability cause of action for personal injuries caused by an unseaworthy condition. And with the Jones Act’s arrival, seaman had both the negligence cause of action, as well as the quasi-strict liability unseaworthiness claim, even though both claims have been described as “alternative grounds of recovery for a single cause of action.” Batterton, p. 8 (quoting 2 R. Force & M. Norris, The Law of Seamen §30:90, p. 30-369 (5th ed. 2003).

As a result of the fraternal-twin nature of these two causes of action – one jurisprudential, one legislative – Justice Alito followed and reaffirmed the Miles analytical principle that general maritime law should adhere to legislative enactments in the maritime sphere unless there is a strong historical or uniformity based reason to depart:

[W]e consider here [1] whether punitive damages have traditionally been awarded for claims of unseaworthiness and [2] whether conformity with parallel statutory schemes would require such damages. Finally, [3] we consider whether we are compelled on policy grounds to allow punitive damages for unseaworthiness claims.
Batterton, p. 10. Under this tripartite approach, Justice Alito concluded that:

1. There was absolutely no historical precedent whatsoever for awarding punitive damages for unseaworthiness. This conclusion was critically distinct from Justice Thomas’s finding in Townsend, which did find historical caselaw (even if it was scant) supporting punitive damages for willful refusal of M&C. In fact, Justice Alito deemed this point “practically dispositive” in barring such damages for unseaworthiness, because punitive damages had otherwise been established in maritime law (including in the cases Justice Thomas identified in Townsend) well before the jurisprudential development of the personal injury unseaworthiness claim, and yet no court had ever awarded punitive damages for that claim.

2. Given the complete absence of support in the general maritime law for punitive damages for unseaworthiness, Justice Alito easily, and necessarily, concluded that there was no compelling reason to create a punitive damage remedy for unseaworthiness in order to conform with any legislative maritime policy. Indeed, the Jones Act directly bars punitive damages via its incorporation of FELA, as lower appellate courts “have uniformly held.” Thus, given the absence of any legislative reason to create a new remedy, and in the interest of maintaining uniformity between the twin actions for Jones Act negligence and unseaworthiness, there was no legislative policy basis for allowing recovery of punitive damages for unseaworthiness.

3. And finally, Justice Alito concluded that there were no compelling policy grounds to create a punitive damage remedy for unseaworthiness; and to the extent there may be any, it would be improper for the Supreme Court “to introduce novel remedies contradictory to those Congress has provided in similar areas.” Batterton, p. 15. In short, Justice Alito held that it would be better “[left] to the political branches [to] develo[p] [any such] novel claims and remedies.” Id.

Likewise, under this third analytical point, Justice Alito noted several countervailing policy grounds that actually support a bar on punitive damages for unseaworthiness. First, unlike denial of M&C, which could (at least in the short term) financially benefit an owner and thus should be dis-incentivized, there is no upside for an owner to send an unseaworthy vessel to sea – because he would risk losing his ship or (perhaps more importantly) his insurance coverage. Second, allowing punitive damages for unseaworthiness would also create “bizarre disparities” in the law, including (1) a living seaman could claim punitive damages for unseaworthiness, but a deceased seaman’s survivors could not do so under Miles; and (2) a far-removed vessel owner could be held liable for punitive damages in unseaworthiness, but not the directly involved master/operator in a Jones Act negligence claim. And finally, because punitive damages are not generally available in civil law jurisdictions that predominate among the leading maritime nations of the world, allowing punitive damages under American general maritime law would put American shipowners at a competitive disadvantage.

Finally, in closing, Justice Alito importantly downplayed any continued potency of the long and oft-cited principle that seaman are “wards of the admiralty” entitled to special protection of the courts: “the special solicitude to sailors has only a small role to play in contemporary maritime law.” Batterton, p. 18.

Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented, essentially on the basis that the common-law in general has historically allowed for punitive damages, and thus they should be available for the common law unseaworthiness cause of action. However, this dissenting position hinged primarily on the statement that “the Jones Act does not preclude the award of punitive damages in unseaworthiness cases,” a point which is technically accurate but only so far as it goes, given that the Jones Act does not address unseaworthiness at all.

In this same regard, perhaps the most intriguing aspect of the Batterton dissent is footnote 5, which suggests that the Supreme Court “has not decided whether punitive damages are available under the Jones Act” – a point which, again, is technically accurate but only so far as it goes. It is true the Supreme Court has not addressed this exact question. However, the Supreme Court and every federal appellate court to address the issue have recognized that punitive damages are not available under FELA, and this holding necessarily applies to the Jones Act via FELA’s incorporation therein. Thus, Justice Ginsburg’s footnote ostensibly giving a lifeline to the possibility of right to punitive damages for seamen would appear to be as ill-fate as the PEQUOD itself.

“CALL ME ISHMAEL” – WHAT SURVIVES THE BATTERTON RULE?

The Batterton decision ostensibly forecloses completely (outside of willful refusal of M&C) any claim by a seaman against his employer for punitive damages, regardless of how it may be couched. That said, the door may remain open for a seaman to seek punitive damages against a non-employer third party defendant, although this itself is a questionable proposition. See Rockett v. Belle Chasse Marine Transportation, LLC, 260 F. Supp. 3d 688, 694 (E.D. La. 2017) (discussing divergent opinions in Louisiana federal courts on this question, and noting the prevailing rule prohibits seamen’s punitive damage claims even against non-employer third parties).

Thus, for now under Batterton, the “white whale” of a seaman’s right to punitive damages appears relegated to the abyss, with little likelihood of ever resurfacing.

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson 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.