United States: The ERISA Litigation Newsletter - January 2016

EDITOR'S OVERVIEW

Happy New Year! Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them perform well. This month we take a look at issues surrounding the surge in ERISA litigation challenging the selection of mutual funds and like investments offered in 401(k) plans, and the fees associated with the recordkeeping and management of those investments.

As always, be sure to review this month's Rulings, Filings, and Settlements of Interest wherein we take a look at: the retroactive application of Windsor, tax relief to pre-data breach identity theft protections, fiduciary status in excessive fee cases, continued fall-out in retiree healthcare litigation after Tackett, and issues pertaining to constitutional standing.

VIEW FROM PROSKAUER: 401(K) FEE LITIGATION: PRACTICES TO MITIGATE FIDUCIARY RISK*

Robert Rachal, Lindsey Chopin, & Robert Sheppard**

Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them perform well. This same pressure has led to steadily increasing Employee Retirement Income Security Act (ERISA)-based litigation challenging the selection of mutual funds and like investments offered in these plans, and the fees associated with recordkeeping and the management of funds' investments. Because of its dynamics (small individual losses but high litigation costs), most fee litigation is entrepreneurial, and offers the possibility of "incentive awards" to named plaintiffs many times greater than any claimed losses.

Further incentivizing litigation in the ERISA arena, some recent attorneys' fees awards may encourage the plaintiff's bar to take hard looks at plans to determine whether to bring such litigation. For example:

  • In December 2015, on remand from the Eighth Circuit, the court in Tussey v. ABB, Inc. awarded $11.6 million in attorneys' fees and expenses.1
  • In November 2015, both Novant Health and Boeing agreed to settle fee-related suits, pending court approval, for $32 million and $57 million respectively.2
  • In April 2015, in Haddock v. Nationwide Financial Services, Inc., the court approved a $140 million settlement that included attorneys' fees and expenses of more than $50 million.3
  • In July 2015, the parties in Krueger v. Ameriprise received final approval of a $27.5 million settlement with $9.2 million in attorneys' fees.4

These recent awards and settlements are likely to encourage more lawsuits; however, these cases can also provide valuable insights to employers and fiduciaries on defenses to these claims.

To preview, Tatum v. RJR Pension Investment Committee illustrates the typical fee-litigation risks and the importance of a prudent process, i.e., of procedural prudence. In Tatum, the court found the fiduciaries had not conducted a prudent process in deciding to eliminate Nabisco stock from the plan. As a result, it applied a "would have" standard, which requires a fiduciary to show that the decision made was not merely permissible (all that would be needed with a prudent process), but the best or compelled one.5

In Tibble v. Edison International, the Supreme Court recently made clear that ERISA imposes some duty to periodically monitor plan investments, even if the investment was initially selected outside the fiduciary six-year statute of limitations period.6

And in Tussey v. ABB, Inc.,7 although numerous claims were dismissed, the Eighth Circuit affirmed a determination that ABB violated ERISA by failing to consider the reasonableness of fees charged by its fund recordkeeper, finding that "ABB never calculated the dollar amount of the recordkeeping fees the Plan paid [. . .] via revenue sharing arrangements," even after an outside consulting firm told ABB that it was overpaying for recordkeeping fees. In determining the $13.4 million that the plan overpaid for recordkeeping costs, the district court credited plaintiffs' expert witness, who used fees paid by a similarly sized retirement plan for Texas employees as the comparator, and that this was in line with trends as to what were reasonable revenue-sharing earnings for other plans.8

Potential Practices to Mitigate Risk

The outcomes of these and other cases, and the incentives they create for potential plaintiffs, demonstrate the importance of properly managing and administering plans. By illustrating areas of potential exposure, these cases provide guidance for developing prudent fiduciary practices that can help lessen that exposure. With these decisions in mind, there are some general practices that all plan fiduciaries should consider adopting or strengthening—all with the critical caveat that the fiduciary process leading to, and implementing, these (and other) decisions needs to be well documented.

As cases like Tatum and Tussey teach, having a well-documented, prudent fiduciary process is "rule one" that can control the defense. Further, as part of general practices, the plan fiduciary with responsibility over plan investments should consider developing and following an investment policy statement.

The applicable plan fiduciaries should conduct periodic reviews of investments and plan service providers, which for investments is common to do quarterly, with a major one annually. Plan fiduciaries may also want to consider periodic benchmarking or requests-for-proposals for major service providers such as recordkeepers. Cases like Tussey illustrate the danger if the plan fiduciary does not periodically monitor fees paid to recordkeepers (in that case, revenue-sharing payments) and failing to evaluate the recordkeeper's overall compensation. Note, though, that a fiduciary does not have to go with the lowest-cost provider; as part of proper fiduciary documentation, quality and service can and should be considered in evaluating any service provider.9

The same need for prudent investigation and process applies to selection and monitoring plan investments. For example, in Tatum, the plan fiduciary faced continued risk of liability (after 12 years of litigation the case has been remanded for trial) for eliminating an orphan single-stock fund without a prudent process, even though the decision to liquidate an orphan stock fund is not, in and of itself, imprudent. In contrast, in Tussey, replacement of one fund with another that (with hindsight) turned out to perform more poorly was not a breach because the plan fiduciary had followed a prudent fiduciary process in making that decision.

Other areas that have created liability include the selection of share classes. Cases like Tibble illustrate the need (perhaps judged with a bit of unfair hindsight) for plan fiduciaries, as part of their prudent process, to investigate ways to save fees, such as by asking whether institutional share classes are available for the plan. Conversely, Tibble also shows the value of a prudent process, dismissing claims challenging the selection of a money-market fund because the plan fiduciaries had:

  • Researched and compared the fees of four comparable funds;
  • Reviewed the comparable funds (including fees) of seven candidates that responded to a request for proposals;
  • Consistently monitored the fund's performance net of fees, which revealed that the fund performed consistently well (net of fees) throughout the period from 1999 to 2008;
  • Periodically reviewed the reasonableness of the fees, which were reduced in 2005 and 2007; and
  • Conducted an extensive review of the fund in 2008.

Finally, a practical way to lessen risk regarding plan investments is to offer a mix of investments, including target-date funds and lower-cost index funds. A prudent process documenting plan fiduciaries' offering of a mix of index funds to provide participants low-cost investment options can be a powerful rebuttal to hindsight-based claims that actively managed funds cost too much and performed relatively poorly. For example, in Hecker v. Deere & Co.,10 the Seventh Circuit agreed with the district court's statement that "[i]t is untenable to suggest that all of the more than 2,500 publicly available investment options had excessive expense ratios" and affirmed dismissal of plaintiffs' claims at an early stage in litigation. Dismissal of fiduciary breach claims was likewise affirmed in Loomis v. Exelon Corp., in which the defendant "offered participants a menu that includes high-expense, high-risk, and potentially high-return funds, together with low-expense index funds that track the market, and low-expense, low-risk, modest-return bond funds." The Seventh Circuit stated that the defendant "left choice to the people who have the most interest in the outcome, and it cannot be faulted for doing this."11

There are additional issues that may arise for small and midsize firms. Not all small to mid-size companies will have the investment and provider management expertise in house, or have the time to properly document and monitor the 401(k) plan and its various providers. Therefore, they may want to consider outsourcing fiduciary management of 401(k) plans to outside fiduciary professionals. Further, if adopted as proposed, the U.S. Department of Labor's new fiduciary rule will strongly encourage adoption of this "professional manager" approach for small plans under 100 participants, because the proposed rule, otherwise, makes it difficult for financial advisors to sell products and services directly to these small plans.

Proskauer's Perspective

Recent decisions and settlements have shown that fee litigation operates like hydraulic pressure, probing for liability in any weak part in plan management and administration, even if the 401(k) plan is, overall, sound and well managed. Simply put, any failure of procedural prudence—to be more precise, any failure to document procedural prudence—on any material aspect of plan management and administration will put fiduciaries at increased risk on claims challenging higher fees, and any ex post subpar investment performance.

But there are powerful defenses available. Although the recent fee-litigation rulings put substantial pressure on fiduciary practices, they also provide teachings identifying areas of potential exposure, and of fiduciary practices that can lessen that exposure. Documented prudent processes addressing the issues that have created risk (for example, recordkeeping fees and the relative costs of comparable funds) will provide powerful defenses to any fee claim.

RULINGS, FILINGS, AND SETTLEMENTS OF INTEREST

Is a Qualified Retirement Plan Required to Apply Windsor Retroactively?

By Roberta Chevlowe and Elizabeth Down

Following the Supreme Court's 2013 decision in U.S. v. Windsor (in which the Court held that Section 3 of the federal Defense of Marriage Act ("DOMA") was unconstitutional), one of the questions facing sponsors of tax-qualified retirement plans was whether the plans were required to recognize same-sex spouses on a retroactive basis for purposes of entitlement to spousal benefits. The IRS answered that question in Notice 2014-19, in which it stated that, for tax-qualification purposes, such plans are required to treat same-sex marriages in the same manner as opposite-sex marriages effective as of June 26, 2013 (the date of the Windsor decision). The IRS also clarified that plans could be amended to recognize same-sex marriages prior to that date, but such earlier recognition was not required for qualification purposes.

A recent federal district court decision in the Northern District of California suggests that some courts might have a different view. In Schuett v. FedEx Corporation, the court denied FedEx's motion for judgment on the pleadings on a breach of fiduciary duty claim brought by a deceased employee's same-sex spouse, whose claim for a qualified preretirement survivor annuity ("QPSA") under FedEx's retirement plan was denied. The employee passed away one week before Windsor was decided, and FedEx denied the claim based on the plan's pre-Windsor definition of "spouse," which incorporated the DOMA definition of marriage (i.e., a union between a man and a woman). The spouse's administrative appeal also was denied by FedEx's Appeals Committee, which found that, under the terms of FedEx's plan, the employee was not "married" under the plan definition of "spouse" at the time of her death (before Section 3 of DOMA was held to be unconstitutional) and did not have a surviving spouse at that time.

In the spouse's lawsuit against FedEx, she asserted three causes of action in the alternative under ERISA: (i) a claim for benefits, (ii) a claim for breach of fiduciary duty for failure to administer the Plan in accordance with applicable law, and (iii) a claim for breach of fiduciary duty for failure to inform and/or for providing misleading communications. The court denied in part the defendants' motion for judgment on the pleadings, allowing the plaintiff to proceed on the claim for breach of fiduciary duty under section 502(a)(3) of ERISA due to a failure to administer the plan in accordance with applicable law. The court found that the plaintiff adequately alleged that FedEx violated ERISA by acting contrary to applicable federal law and failing to provide a benefit mandated by ERISA (the QPSA), and that she is entitled to pursue equitable relief to remedy that violation.

In reaching this conclusion, the court noted that ERISA requires a fiduciary to follow plan documents only to the extent that they are consistent with ERISA and pointed to a plan provision stating that federal law would govern in the event that a plan term was inconsistent with federal law. The court also reasoned that the Windsor case appeared to invalidate DOMA retroactive to its 1996 enactment, and noted that the Windsor decision itself applied retroactively. In addition, the court relied to some extent on an earlier post-Windsor case, Cozen O'Connor P.C. v. Tobits, in which a federal district court concluded that Windsor applied retroactively in the context of a surviving spouse benefit where the plan document did not explicitly define the term "spouse" to exclude same-sex spouses.

It is important to note that the court's decision in Schuett merely allows the surviving spouse to proceed with her breach of fiduciary claim against FedEx (in which she seeks declaratory and injunctive relief amounting to payment of the QPSA); it does not require FedEx to apply Windsor retroactively or pay a benefit to the spouse. Also notable is the fact that the court granted FedEx's motion to dismiss the spouse's other two claims. With regard to the claim for wrongful denial of benefits under section 502(a)(1)(B) of ERISA, the court concluded that the spouse had not alleged facts demonstrating that FedEx had abused its discretion in interpreting the plan's definition of spouse, because the definition was unambiguous and nondiscretionary. On the claim for breach of fiduciary duty under section 502(a)(3) of ERISA alleging that FedEx failed to provide complete and accurate information about survivor benefits that may have been available to the employee's designated non-spouse beneficiary under the plan if the employee had retired prior to her death, the court found that the spouse lacked standing to pursue this claim because she was not designated as the employee's beneficiary.

Proskauer will continue to monitor this case and other decisions and guidance relating to the application of the Supreme Court decisions regarding same-sex marriage to employee benefit plans.

An Ounce of Prevention...Is Tax-Free: IRS Expands Tax Relief to Pre-Data Breach Identity Theft Protection Services

By Tzvia Feiertag

As reported on Proskauer's Tax Talks Blog, after last year's customer data security breaches at major U.S. corporations, the IRS announced special tax relief for identity protection services provided to individuals affected by a security breach. In response to comments solicited in connection with that announcement, the Treasury Department and IRS have in Announcement 2016-02 extended that relief to no-cost identity protection services provided before a data breach.

In statements to the IRS, commenters stated that data security is a major concern for many organizations and cited statistics showing a significant increase in the number of data breaches that result in unauthorized access to information systems containing personal information of employees and other individuals. Commenters also stated that some organizations are making security decisions based on the belief that breaches of their information systems are inevitable. In addition, commenters stated that an increasing number of organizations are combating data breaches by providing identity protection services to employees or other individuals before a data breach occurs in order to help detect any occurrence of a breach in their information systems, and to minimize the impact to their operations.

Citing these considerations as the basis for its extension of its former tax relief on identity protection services, Announcement 2016-02 provides that the IRS will not assert:

  • that an individual must include in gross income the value of identity protection services provided by the individual's employer or by another organization to which the individual provided personal information (for example, name, social security number, or banking or credit account numbers), or
  • that an employer providing identity protection services to its employees must include the value of such services in the employees' gross income and wages.

Nor will the IRS assert that the value of such service needs to be reported on information returns such as Forms W-2 or 1099.

However, this relief does not apply to cash that an individual may receive in lieu of identity protection services, or to proceeds received under an identity theft insurance policy.

Proskauer's Perspective: This guidance is welcome news for employers that want to offer identity protection services to employees as part of their data security strategy. They may now offer these services without increasing their (or their employees') federal tax liability. However, employers should be mindful of state and/or local tax laws as they may differ from federal tax law.

Eighth Circuit Holds Service Provider Is Not A Plan Fiduciary In Excessive Fee Case

By Neil Shah

Continuing a trend in other Circuits, the Eighth Circuit held that a service provider that was contracted to provide the 401(k) plan's investment options does not act as an ERISA fiduciary when, consistent with the terms of a contract it negotiated at arms' length, it passes through operating expenses to participants. The Court also rejected the plan's remaining arguments that Principal was a fiduciary because there was no nexus between the fiduciary services and the plan's allegations that Principal had charged it excessive fees. The case is McCaffree Financial Corp. v. Principal Life Ins. Co., No. 15-1007, slip op. (8th Cir. Jan. 8, 2016).

Another Post-Tackett Ruling Denying Retiree Health Benefits

By Madeline Chimento Rea

A district court in West Virginia recently held that retirees were not entitled to lifetime health benefits under the clear and unambiguous language of the relevant collective bargaining agreements. Shortly after Constellium modified retiree health benefits to provide less favorable coverage, the retirees sued, alleging that they had a vested right to the prior level of health benefits. The court held that the retirees were not entitled to lifetime benefits in light of clear and unambiguous durational clauses in the CBAs that limited retiree health benefits to the term of the labor agreement. Since the language was clear, the court also found that it should not consider extrinsic evidence. The case is Barton v. Constellium Rolled Products-Ravenswood, LLC, 13-cv-03127, 2016 WL 51262 (S.D. W. Va. Jan. 4. 2016).

Defined Benefit Plan Participant's Action Mooted by ERISA Plan's Improved Financial Condition

By Neil Shah

A federal district court in Minnesota dismissed a plan participant's allegations that plan fiduciaries mismanaged a defined benefit plan — and thus caused it to be underfunded — because the plan's financial condition improved during the course of the litigation. As reported here, the court previously held that these allegations were sufficient to establish that plaintiffs suffered an injury in fact sufficient to confer Article III standing. In its most recent opinion, the court held that plaintiffs' claims were now moot because the plan had become overfunded. As a result, "any money that could be awarded would simply add to the Plan's now-existing surplus, in which Plaintiffs have no legal interest." The court also held that "to the extent that the Plan becomes underfunded again in the future, raising anew concerns about the security of Plan participants' future stream of benefits, the causal connection between the new increased risk of default and the Defendants' alleged violations in 2007 through 2010 would be tenuous at best." The case is Adedipe v. U.S. Bank, N.A., No. 13-2687, slip op. (D. Minn. Dec. 29, 2015).

Footnotes

* Originally published by Bloomberg BNA.

A version of this article will be published in the Winter 2015 edition of Benefits Law Journal. See Robert Rachal & Lindsey Chopin, 401(k) Fee Litigation: Recent Case Teachings on Exposures and Practices to Mitigate That Risk, Benefits Law Journal, Vol. 28, No. 4 (Winter 2015).

** Robert Rachal is a Senior Counsel and Lindsey Chopin and Robert Sheppard are associates in Proskauer's New Orleans, Louisiana office. The views expressed herein are the authors' alone.

[1] Tussey v. ABB, Inc., No. 2:06–cv–04305–NKL, slip op. at 17 (W.D. Mo. Dec. 9, 2015), ECF No. 782.

[2] Joint Motion for Preliminary Approval of Class Settlement, Kruger v. Novant Health, Inc., No. 1:14-cv-00208 (M.D.N.C. Nov. 9, 2015), ECF No. 43; Joint Motion for Preliminary Approval of Class Settlement and Plaintiff's Memorandum in Support of Joint Motion, Spano v. Boeing Co., No. 06-cv-743-NJR-DGW (S.D. Ill. Nov. 5, 2015), ECF Nos. 554 and 555.

[3] Haddock v. Nationwide Fin. Servs., Inc., No. 3:01-cv-1552 (SRU), slip op. at 1-2, ECF No. 526 (D. Conn. Apr. 9, 2015).

[4] Krueger v. Ameriprise Fin. Inc., No. 11-cv-2781, slip op. at 1-2 (D. Minn. July 13, 2015), ECF No. 623.

[5] Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 365-66 (4th Cir. 2014).

[6] 135 S.Ct. 1823, 1828-29 (2015). In Tibble, the selection of retail instead of institutional share classes, as well as the timing of that decision, came under fire. Issues remaining for trial included whether the inclusion of retail class shares was imprudent. Plaintiffs claimed that the defendants breached their duty of prudence when they invested in the retail share classes rather than the institutional share classes offered by several of the mutual funds. Following trial, the evidence showed that: At the time of the initial investment decision, both retail and institutional share classes were available, with the only difference being that the retail share classes charged higher fees; the district court concluded that the evidence presented at trial established that the defendants never considered or evaluated the different share classes for these funds, and that if they had requested the institutional share class, because of the size of the plan, they likely would have received that class. The district court found that this failure to investigate acquiring the institutional share class was a breach of fiduciary duty of prudence, but found the claims were time-barred for the funds added more than six years before the lawsuit was filed.

[7] Tussey v. ABB, Inc., 746 F.3d 327, 337-41(8th Cir. 2014). In December 2015, on remand, the district court awarded $11.6 million in attorneys' fees. Tussey v. ABB, Inc., No. 2:06-cv-04305-NKL, slip op. at 17 (W.D. Mo. Dec. 9, 2015), ECF No. 782.

[8] Tussey v. ABB, Inc., No. 2:06-CV-04305, 2012 WL 1113291, *39-40 (W.D. Mo. Mar. 31, 2012).

[9] See, e.g., Hecker, 556 F.3d at 586.

[10] 556 F.3d 575, 581 (7th Cir. 2009).

[11] Loomis v. Exelon Corp., 658 F.3d 667, 673-75 (7th Cir. 2011).

The ERISA Litigation Newsletter - January 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.