[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 775 Reported in House (RH)]
106th CONGRESS
1st Session
H. R. 775
[Report No. 106-131, Part I]
To establish certain procedures for civil actions brought for damages
relating to the failure of any device or system to process or otherwise
deal with the transition from the year 1999 to the year 2000, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 23, 1999
Mr. Davis of Virginia (for himself, Mr. Dreier, Mr. Cox, Mr. Moran of
Virginia, Mr. Cramer, and Mr. Dooley of California) introduced the
following bill; which was referred to the Committee on the Judiciary,
and in addition to the Committee on Small Business, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
May 7, 1999
Additional sponsors: Mrs. Morella, Mr. Sununu, Mr. Cunningham, Mr.
Goode, Mrs. Tauscher, Mr. Goodlatte, Ms. Dunn, Mr. Riley, Mr. Hall of
Texas, Mr. Gallegly, Mr. Cook, Mr. John, Mr. Campbell, Mr. Hayes, Mr.
Royce, Mr. Rogan, Mrs. Biggert, Mr. Burton of Indiana, Mrs. Fowler, Mr.
Cannon, Mrs. Myrick, Mr. Ney, Mr. Ryun of Kansas, Mr. Hobson, Mr.
Whitfield, Mrs. Bono, Mr. Sensenbrenner, Mr. Blunt, Mr. Chabot, Mr.
Stenholm, Mr. Roemer, Mr. Foley, Mr. Knollenberg, Mr. Gillmor, Mr. Ose,
Mr. Barcia, Mr. Shays, Mr. Sessions, Mr. Bryant, Mr. McIntosh, Mr.
Hayworth, Mr. Stump, Mr. Shimkus, Mr. Oxley, Mr. Goss, Mr. Armey, Mr.
Shadegg, Mrs. Cubin, Mr. Wamp, Mr. Latham, Mr. Boehner, Mr. Kasich, Mr.
Pickering, Mr. Cooksey, Mr. Ramstad, Mr. English, Mr. Tancredo, Mr.
Metcalf, Mr. Kingston, Mr. Sam Johnson of Texas, Mr. Baker, Mr. Bachus,
Mr. Ford, Mr. Green of Wisconsin, Mr. Holden, Mr. Moran of Kansas, Mr.
LaHood, Mr. Thornberry, Mr. Wolf, Mr. Bereuter, Mrs. Northup, Mr.
Ballenger, Mr. Hill of Montana, Mr. Largent, Mr. Rohrabacher, Mr. Gary
Miller of California, Mr. Watts of Oklahoma, Mrs. Wilson, Mrs. Johnson
of Connecticut, Mr. McCrery, Mr. Simpson, Mr. Forbes, Mr. Lewis of
Kentucky, Mr. Ewing, Mr. Calvert, Mr. Reynolds, and Mr. Weller
May 7, 1999
Reported from the Committee on the Judiciary with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
May 7, 1999
Referral to the Committee on Small Business extended for a period
ending not later than May 7, 1999
May 7, 1999
Committee on Small Business discharged
May 7, 1999
Referred to the Committee on Commerce for a period ending not later
than May 11, 1999, for consideration of such provisions of the
introduced bill as fall within the jurisdiction of that committee
pursuant to clause 1(f), rule X
[For text of introduced bill, see copy of bill as introduced on
February 23, 1999]
_______________________________________________________________________
A BILL
To establish certain procedures for civil actions brought for damages
relating to the failure of any device or system to process or otherwise
deal with the transition from the year 1999 to the year 2000, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Year 2000 Readiness and
Responsibility Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The Congress seeks to encourage businesses to
concentrate their attention and resources in the short time
remaining before January 1, 2000, on addressing, assessing,
remediating, and testing their year 2000 problems, and to
minimize any possible business disruptions associated with year
2000 issues.
(2) It is appropriate for the Congress to enact legislation
to assure that year 2000 problems do not unnecessarily disrupt
interstate commerce or create unnecessary case loads in Federal
and State courts and to provide initiatives to help businesses
prepare and be in a position to withstand the potentially
devastating economic impact of the year 2000 problem.
(3) Year 2000 issues will affect practically all business
enterprises to some degree, giving rise to a large number of
disputes.
(4) Resorting to the legal system for resolution of year
2000 problems is not feasible for many businesses, particularly
small businesses, because of its complexity and expense.
(5) The delays, expense, uncertainties, loss of control,
adverse publicity and animosities that frequently accompany
litigation of business disputes can only exacerbate the
difficulties associated with the year 2000 date change, and
work against the successful resolution of those difficulties.
(6) The Congress recognizes that every business in the
United States should be concerned that widespread and
protracted year 2000 litigation may threaten the network of
valued and trusted business relationships that are so important
to the effective functioning of the world economy, and which
may put unbearable strains on an overburdened judicial system.
(7) A proliferation of frivolous year 2000 actions by
opportunistic parties may further limit access to courts by
straining the resources of the legal system and depriving
deserving parties of their legitimate rights to relief.
(8) The Congress encourages businesses to approach their
year 2000 disputes responsibly, and to avoid unnecessary, time-
consuming and costly litigation based on year 2000 failures.
Congress supports good faith negotiations between parties when
there is a dispute over a year 2000 problem, and, if
necessary, urges the parties to enter into voluntary, non-binding
mediation rather than litigation.
SEC. 3. DEFINITIONS.
In this Act:
(1) Contract.--The term ``contract'' means a contract,
tariff, license, or warranty.
(2) Defendant.--The term ``defendant'' means any person
against whom a year 2000 claim has been asserted.
(3) Economic loss.--The term ``economic loss''--
(A) means any damages other than damages arising
out of personal injury or damage to tangible property;
and
(B) includes, but is not limited to, damages for
lost profits or sales, for business interruption, for
losses indirectly suffered as a result of the
defendant's wrongful act or omission, for losses that
arise because of the claims of third parties, for
losses that must be pleaded as special damages, and
consequential damages (as defined in the Uniform
Commercial Code or analogous State commercial law).
(4) Governmental entity.--The term ``governmental entity''
means an agency, instrumentality, other entity, or official of
Federal, State, or local government (including
multijurisdictional agencies, instrumentalities, and entities).
(5) Material defect.--The term ``material defect'' means a
defect in any item, whether tangible or intangible, or in the
provision of a service, that substantially prevents the item or
service from operating or functioning as designed or intended.
The term ``material defect'' does not include a defect that has
an insignificant or de minimis effect on the operation or
functioning of an item, that affects only a component of an
item that, as a whole, substantially operates or functions as
designed, or that has an insignificant or de minimis effect on
the efficacy of the service provided.
(6) Person.--The term ``person'' means any natural person
and any entity, organization, or enterprise, including but not
limited to corporations, companies, joint stock companies,
associations, partnerships, trusts, and governmental entities.
(7) Personal injury.--The term ``personal injury'' means
any physical injury to a natural person, including death of the
person, and mental suffering, emotional distress, or like
elements of injury suffered by a natural person in connection
with a physical injury.
(8) Plaintiff.--The term ``plaintiff'' means any person who
asserts a year 2000 claim.
(9) Punitive damages.--The term ``punitive damages'' means
damages that are awarded against any person to punish such
person or to deter such person, or others, from engaging in
similar behavior in the future.
(10) State.--The term ``State'' means any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, the Northern Mariana Islands, the United States
Virgin Islands, Guam, American Samoa, and any other territory
or possession of the United States, and any political
subdivision thereof.
(11) Year 2000 action.--The term ``year 2000 action'' means
any civil action of any kind brought in any court under Federal
or State law, or an agency board of contract appeal proceeding,
in which a year 2000 claim is asserted.
(12) Year 2000 claim.--The term ``year 2000 claim''--
(A) means any claim or cause of action of any kind,
other than a claim based on personal injury, whether
asserted by way of claim, counterclaim, cross-claim,
third-party claim, defense, or otherwise, in which the
plaintiff's alleged loss or harm resulted, directly or
indirectly, from a year 2000 failure;
(B) includes a claim brought in any Federal or
State court by a governmental entity when acting in a
commercial or contracting capacity; and
(C) does not include a claim brought by such a
governmental entity acting in a regulatory,
supervisory, or enforcement capacity.
(13) Year 2000 failure.--The term ``year 2000 failure''
means any failure by any device or system (including, without
limitation, any computer system and any microchip or integrated
circuit embedded in another device or product), or any
software, firmware, or other set or collection of processing
instructions, however constructed, in processing, calculating,
comparing, sequencing, displaying, storing, transmitting, or
receiving year 2000 date-related data.
SEC. 4. APPLICATION OF ACT.
(a) General Rule.--This Act applies to any year 2000 claim brought
after February 22, 1999, including any appeal, remand, stay, or other
judicial, administrative, or alternative dispute resolution proceeding
with respect to such claim.
(b) No New Cause of Action Created.--Nothing in this Act creates a
new cause of action, and, except as otherwise explicitly provided in
this Act, nothing in this Act expands any liability otherwise imposed
or limits any defense otherwise available under Federal or State law.
(c) Exclusion of Personal Injury Claims.--None of the provisions of
this Act shall apply to any claim based on personal injury.
(d) Preemption of State Law.--Except as otherwise provided in this
Act, this Act supersedes State law to the extent that it establishes a
rule of law applicable to a year 2000 claim that is inconsistent with
State law.
TITLE I--UNIFORM PRE-
LITIGATION PROCEDURES FOR YEAR 2000 ACTIONS
SEC. 101. NOTICE PROCEDURES TO AVOID UNNECESSARY YEAR 2000 ACTIONS.
(a) Notification Period.--Before filing a year 2000 action, except
an action that seeks only injunctive relief, a prospective plaintiff
shall send by certified mail to each prospective defendant a written
notice that identifies, with particularity as to any year 2000 claim--
(1) any symptoms of any material defect alleged to have
caused harm or loss;
(2) the harm or loss allegedly suffered by the prospective
plaintiff;
(3) the facts that lead the prospective plaintiff to hold
such person responsible for both the defect and the injury;
(4) the relief or action sought by the prospective
plaintiff; and
(5) the name, title, address, and telephone numbers of any
individual who has authority to negotiate a resolution of the
dispute on behalf of the prospective plaintiff.
Except as provided in subsection (c), the prospective plaintiff shall
not commence an action in Federal or State court until the expiration
of 90 days after the date on which such notice is received. Such 90-day
period shall be excluded in the computation of any applicable statute
of limitations.
(b) Response to Notice.--
(1) In general.--Not later than 30 days after receipt of
the notice specified in subsection (a), each prospective
defendant shall send by certified mail with return receipt
requested to each prospective plaintiff a written statement
acknowledging receipt of the notice and describing any actions
it has taken or will take by not later than 60 days after the
end of that 30-day period, to remedy the problem identified by
the prospective plaintiff.
(2) Inadmissibility.--A written statement required by this
subsection is not admissible in evidence, under Rule 408 of the
Federal Rules of Evidence or any analogous rule of evidence in
any State, in any proceeding to prove liability for, or the
invalidity of, a claim or its amount, or otherwise as evidence
of conduct or statements made in compromise negotiations.
(3) Presumptive time of receipt.--For purposes of paragraph
(1), a notice under subsection (a) is presumed to be received 7
days after it was sent.
(c) Failure To Respond.--If a prospective defendant fails to
respond to a notice provided pursuant to subsection (a) within the 30-
day period specified in subsection (b) or does not describe the action,
if any, that the prospective defendant has taken or will take to remedy
the problem identified by the prospective plaintiff within the
subsequent 60 days, the 90-day period specified in subsection (a) shall
terminate at the end of that 30-day period as to that prospective
defendant and the prospective plaintiff may thereafter commence its
action against that prospective defendant.
(d) Failure To Provide Notice.--If a defendant determines that a
plaintiff has filed a year 2000 action without providing the notice
specified in subsection (a) and without awaiting the expiration of the
90-day period specified in subsection (a), the defendant may treat the
plaintiff's complaint as such a notice by so informing the court and
the plaintiff in its initial response to the complaint. If any
defendant elects to treat the complaint as such a notice--
(1) the court shall stay all discovery in the action
involving that defendant for the applicable time period
provided in subsection (a) or (c), as the case may be, after
filing of the complaint; and
(2) the time for filing answers and all other pleadings
shall be tolled during such applicable period.
(e) Effect of Contractual Waiting Periods.--In cases in which a
contract or a statute enacted before January 1, 1999, requires notice
of nonperformance and provides for a period of delay prior to the
initiation of suit for breach or repudiation of contract, the period of
delay provided in the contract or the statute is controlling over the
waiting period specified in subsections (a) and (d).
(f) Sanction for Frivolous Invocation of the Stay Provision.--In
any action in which a defendant acts pursuant to subsection (d) to stay
the action, and the court subsequently finds that the defendant's
assertion that the suit is a year 2000 action was frivolous and made
for the purpose of causing unnecessary delay, the court may award
sanctions to opposing parties in accordance with the provisions of Rule
11 of the Federal Rules of Civil Procedure or the equivalent applicable
State rule.
(g) Computation of Time.--For purposes of this section, the rules
regarding computation of time shall be governed by the applicable
Federal or State rules of civil procedure.
(h) Special Rule for Class Actions.--For the purpose of applying
this section to a year 2000 action that is maintained as a class action
in Federal or State court, the requirements of the preceding
subsections of this section apply only to named plaintiffs in the class
action.
SEC. 102. ALTERNATIVE DISPUTE RESOLUTION TO AVOID UNNECESSARY YEAR 2000
ACTIONS.
(a) In General.--(1) At any time during the 90-day period specified
in section 101(a), either party may request the other to use
alternative dispute resolution. If, based upon that request, the
parties enter into an agreement to use alternative dispute resolution,
they may also agree to an extension of the 90-day period.
(2) At any time after expiration of the 90-day period specified in
section 101(a), whether before or after the filing of a complaint,
either party may request the other to use alternative dispute
resolution.
(b) Payment of Moneys Due.--If the parties resolve their dispute
through alternative dispute resolution as provided in subsection (a),
the defendant shall pay all moneys due within 30 days, unless another
period of time is agreed to by the parties or established by contract
between the parties.
(c) Foreclosure of Further Proceedings on Resolved Issues.--
Resolution of the issues by the parties prior to litigation through
negotiation or alternative dispute resolution shall foreclose any
further proceedings with respect to those issues.
SEC. 103. PLEADING REQUIREMENTS.
(a) Application With Rules of Civil Procedure.--This section
applies exclusively to year 2000 claims and, except to the extent that
this section requires additional information to be contained in or
attached to pleadings, nothing in this section is intended to amend or
otherwise supersede applicable rules of Federal or State civil
procedure.
(b) Nature and Amount of Damages.--With respect to any year 2000
claim that seeks the award of money damages, the complaint shall state
with particularity the nature and amount of each element of damages,
and the factual basis for the damages calculation.
(c) Material Defects.--With respect to any year 2000 claim in which
the plaintiff alleges that a product or service was defective, the
complaint shall identify with particularity the symptoms of the
material defects and shall state with particularity the facts
supporting the conclusion that the defects are material.
(d) Required State of Mind.--With respect to any year 2000 claim as
to which the plaintiff may prevail only on proof that the defendant
acted with a particular state of mind, the complaint shall, with
respect to each element of the year 2000 claim, state with
particularity the facts giving rise to a strong inference that the
defendant acted with the required state of mind.
(e) Motion To Dismiss; Stay of Discovery.--
(1) Dismissal for failure to meet pleading requirements.--
In any year 2000 action, the court shall, on the motion of any
defendant, dismiss the complaint without prejudice if the
requirements of subsection (a), (b), or (c) are not met with
respect to any year 2000 claim asserted therein.
(2) Stay of discovery.--In any year 2000 action, all
discovery shall be stayed during the pendency of any motion to
dismiss, unless the court finds upon the motion of any party
that particularized discovery is necessary to preserve evidence
or prevent undue prejudice to that party.
(3) Preservation of evidence.--
(A) In general.--During the pendency of any stay of
discovery entered pursuant to this subsection, unless
otherwise ordered by the court, any party to the action
with actual notice of the allegations contained in the
complaint shall treat all documents, data compilations
(including electronically stored or recorded data), and
tangible objects that are in the custody or control of
such person and that are relevant to the allegations,
as if they were a subject of a continuing request for
production of documents from an opposing party under
applicable Federal or State rules of civil procedure.
(B) Sanction for willful violation.--A party
aggrieved by the willful failure of an opposing party
to comply with subparagraph (A) may apply to the court
for an order awarding appropriate sanctions.
SEC. 104. DUTY OF ALL PERSONS TO MITIGATE YEAR 2000 COMPUTER FAILURES
AND RESULTING DAMAGES.
Damages awarded for any year 2000 claim shall exclude compensation
for damages the plaintiff could reasonably have avoided in light of any
disclosure or other information of which the plaintiff was, or
reasonably should have been, aware, including information made
available by the defendant to purchasers or users of the defendant's
product or services concerning means of remedying or avoiding the year
2000 failure.
TITLE II--YEAR 2000 ACTIONS INVOLVING CONTRACTS
SEC. 201. CERTAINTY OF CONTRACT TERMS FOR PREVENTION OF YEAR 2000
DAMAGES.
(a) In General.--Subject to subsection (b), in resolving any year
2000 claim, any written contractual term, including a limitation or an
exclusion of liability, or a disclaimer of warranty, shall be fully
enforced unless the enforcement of that term would manifestly and
directly contravene applicable State law embodied in any statute in
effect on January 1, 1999, specifically addressing that term.
(b) Interpretation of Contract.--In resolving any year 2000 claim
as to which a contract to which subsection (a) applies is silent with
respect to a particular issue, the interpretation of the contract with
respect to that issue shall be determined by applicable law in effect
at the time the contract was executed.
SEC. 202. APPLICATION OF EXISTING IMPOSSIBILITY OR COMMERCIAL
IMPRACTICABILITY DOCTRINES.
(a) Doctrine of Impossibility and Commercial Impracticability.--
With respect to any year 2000 claim for breach or repudiation of
contract, the applicability of the doctrines of impossibility and
commercial impracticability shall be determined by the law in existence
on January 1, 1999. Nothing in this Act shall be construed as limiting
or impairing a party's right to assert defenses based upon such
doctrines.
(b) Reasonable Efforts.--To the extent that impossibility or
commercial impracticability is raised as a defense against a claim for
breach or repudiation of contract, the party asserting the defense
shall be allowed to offer evidence that its implementation of the
contract, or its efforts to implement the contract, were reasonable in
light of the circumstances.
SEC. 203. PROTECTION OF PERSONS FROM LIABILITY NOT ANTICIPATED IN YEAR
2000 CONTRACTS.
With respect to any year 2000 claim involving a breach of contract
or a claim related to the contract, no party may claim or be awarded
any category of damages unless such damages are allowed by the express
terms of the contract or, if the contract is silent on such damages, by
operation of the applicable Federal or State law that governed
interpretation of the contract at the time the contract was entered
into.
TITLE III--YEAR 2000 ACTIONS INVOLVING TORT AND OTHER NONCONTRACTUAL
CLAIMS
SEC. 301. PROPORTIONATE LIABILITY.
(a) In General.--A person against whom a final judgment is entered
with respect to a year 2000 claim, other than a claim for breach or
repudiation of contract, shall be liable solely for the portion of the
judgment that corresponds to the percentage of responsibility of that
person, as determined under subsection (b).
(b) Determination of Responsibility.--
(1) In general.--With respect to any year 2000 claim, the
court shall instruct the jury to answer special
interrogatories, or if there is no jury, shall make findings,
with respect to each defendant and plaintiff, and each of the
other persons claimed by any of the parties to have caused or
contributed to the loss incurred by the plaintiff, including
(but not limited to) persons who have entered into settlements
with the plaintiff or plaintiffs, concerning the percentage of
responsibility of the defendant, the plaintiff, and each such
person, measured as a percentage of the total fault of all
persons who caused or contributed to the total loss incurred by
the plaintiff.
(2) Contents of special interrogatories or findings.--The
responses to interrogatories, or findings, as appropriate,
under paragraph (1) shall specify the total amount of damages
that the plaintiff is entitled to recover and the percentage of
responsibility of each person found to have caused or
contributed to the loss incurred by the plaintiff or
plaintiffs.
(3) Factors for consideration.--In determining the
percentage of responsibility under this subsection, the trier
of fact shall consider--
(A) the nature of the conduct of each person
alleged to have caused or contributed to the loss
incurred by the plaintiff; and
(B) the nature and extent of the causal
relationship between the conduct of each such person
and the damages incurred by the plaintiff or
plaintiffs.
(4) Nondisclosure to jury.--The standard for allocation of
damages under paragraph (1) shall not be disclosed to members
of the jury.
SEC. 302. LIMITATION ON BYSTANDER LIABILITY FOR YEAR 2000 FAILURES.
(a) In General.--With respect to any year 2000 claim for money
damages in which--
(1) the defendant is not the manufacturer, seller, or
distributor of a product, or the provider of a service, that
suffers or causes the year 2000 failure at issue,
(2) the plaintiff is not in substantial privity with the
defendant, and
(3) the defendant's actual or constructive awareness of an
actual or potential year 2000 failure is an element of the
claim under applicable law,
the defendant shall not be liable unless the plaintiff, in addition to
establishing all other requisite elements of the claim, proves by clear
and convincing evidence that the defendant actually knew, or recklessly
disregarded a known and substantial risk, that such failure would
occur.
(b) Substantial Privity.--For purposes of subsection (a)(2), a
plaintiff and a defendant are in substantial privity when, in a year
2000 claim arising out of the performance of professional services, the
plaintiff and the defendant either have contractual relations with one
another or the plaintiff is a person who, prior to the defendant's
performance of such services, was specifically identified to and
acknowledged by the defendant as a person for whose special benefit the
services were being performed.
(c) Certain Claims Excluded.--For purposes of subsection (a)(3),
claims in which the defendant's actual or constructive awareness of an
actual or potential year 2000 failure is an element of the claim under
applicable law do not include claims for negligence but do include
claims such as fraud, constructive fraud, breach of fiduciary duty,
negligent misrepresentation, and interference with contract or economic
advantage.
SEC. 303. REASONABLE EFFORTS DEFENSE.
With respect to any year 2000 claim seeking money damages, except
with respect to claims asserting breach or repudiation of contract--
(1) the fact that a year 2000 failure occurred in an
entity, facility, system, product, or component that was within
the control of the party against whom the claim is asserted
shall not constitute the sole basis for recovery; and
(2) the party against whom the claim is asserted shall be
entitled to establish, as a complete defense to the claim, that
it took measures that were reasonable under the circumstances
to prevent the year 2000 failure from occurring or from causing
the damages upon which the claim is based.
SEC. 304. DAMAGES LIMITATION.
(a) Year 2000 Recovery Fund.--There is established in the Treasury
a Year 2000 Recovery Fund. In any year 2000 action in which punitive
damages are awarded under applicable law, including this Act, the
entire amount of such damages shall be paid into the Year 2000 Recovery
Fund. Amounts in the Fund shall be used for the assistance of small
businesses, State and local governments, and nonprofit organizations,
that are affected by year 2000 failures.
(b) Standard for Awards.--With respect to any year 2000 claim for
which punitive damages may be awarded under applicable law, the
defendant shall not be liable for punitive damages unless the plaintiff
proves by clear and convincing evidence that conduct carried out by the
defendant showed a conscious, flagrant indifference to the rights or
safety of others and was the proximate cause of the harm or loss that
is the subject of the year 2000 claim. This requirement is in addition
to any other requirement in applicable law for the award of such
damages.
(c) Caps on Punitive Damages.--
(1) In general.--With respect to any year 2000 claim, if a
defendant is found liable for punitive damages, the amount of
punitive damages that may be awarded to a plaintiff shall not
exceed the greater of--
(A) 3 times the amount awarded to the plaintiff for
compensatory damages; or
(B) $250,000.
(2) Special rule.--
(A) In general.--Notwithstanding paragraph (1),
with respect to any year 2000 claim, if the defendant
is found liable for punitive damages and the
defendant--
(i) is an individual whose net worth does
not exceed $500,000,
(ii) is an owner of an unincorporated
business that has fewer than 25 full-time
employees, or
(iii) is--
(I) a partnership,
(II) corporation,
(III) association,
(IV) unit of local government, or
(V) organization,
that has fewer than 25 full-time employees,
the amount of punitive damages shall not exceed the
lesser of 3 times the amount awarded to the plaintiff
for compensatory damages, or $250,000.
(B) Applicability.--For purposes of determining the
applicability of this paragraph to a corporation, the
number of employees of a subsidiary of a wholly owned
corporation shall include all employees of a parent
corporation or any subsidiary of that parent
corporation.
(3) Application of limitations by the court.--The
limitations contained in paragraphs (1) and (2) shall be
applied by the court and shall not be disclosed to the jury.
SEC. 305. RECOVERY OF ECONOMIC DAMAGES FOR YEAR 2000 CLAIMS.
(a) Limitation on Recovery of Economic Losses.--Subject to
subsection (b), a plaintiff making a year 2000 claim alleging a
nonintentional tort may recover economic losses only upon establishing,
in addition to all other elements of the claim under applicable law,
that any one of the following circumstances exists:
(1) The recovery of such losses is provided for in a
contract to which the plaintiff is a party.
(2) Such losses are incidental to a year 2000 claim based
on damage to tangible personal or real property caused by a
year 2000 failure (other than damage to property that is the
subject of a contract between the parties involved in the year
2000 claim).
(b) Recovery Must Be Permitted Under Applicable Law.--Economic
losses shall be recoverable under this section only if applicable
Federal law, or applicable State law embodied in statute or controlling
judicial precedent as of January 1, 1999, permits the recovery of such
losses.
SEC. 306. LIABILITY OF OFFICERS AND DIRECTORS.
(a) In General.--A director, officer, or trustee of a business or
other organization (including a corporation, unincorporated
association, partnership, or nonprofit organization) shall not be
personally liable with respect to any year 2000 claim in his or her
capacity as a director or officer of the business or organization for
an aggregate amount that exceeds the greater of--
(1) $100,000; or
(2) the amount of cash compensation received by the
director or officer from the business or organization during
the 12-month period immediately preceding the act or omission
for which liability was imposed.
(b) Rule of Construction.--Nothing in this section shall be deemed
to impose, or to permit the imposition of, personal liability on any
director, officer, or trustee in excess of the aggregate amount of
liability to which such director, officer, or trustee would be subject
under applicable State law in existence on January 1, 1999 (including
any charter or bylaw authorized by such State law).
TITLE IV--YEAR 2000 CLASS ACTIONS
SEC. 401. MINIMUM INJURY REQUIREMENT.
(a) In General.--In any year 2000 action involving a year 2000
claim that a product or service is defective, the action may be
maintained as a class action in Federal or State court as to that claim
only if it satisfies all other prerequisites established by applicable
Federal or State law and the court also finds that the alleged defect
in the product or service was a material defect as to a majority of the
members of the class.
(b) Determination by Court.--As soon as practicable after the
commencement of a year 2000 action involving a year 2000 claim that a
product or service is defective and that is brought as a class action,
the court shall determine by order whether the requirement set forth in
subsection (a) is satisfied. An order under this subsection may be
conditional, and may be altered or amended before the decision on the
merits.
SEC. 402. NOTIFICATION.
(a) Notice by Mail.--In any year 2000 action that is maintained as
a class action, the court, in addition to any other notice required by
applicable Federal or State law, shall direct notice of the action to
each member of the class by United States mail, return receipt
requested. Persons whose actual receipt of the notice is not verified
by the court or by counsel for one of the parties shall be excluded
from the class unless those persons inform the court in writing, on a
date no later than the commencement of trial or entry of judgment, that
they wish to join the class.
(b) Contents of Notice.--In addition to any information required by
applicable Federal or State law, the notice described in this
subsection shall--
(1) concisely and clearly describe the nature of the
action;
(2) identify the jurisdiction whose law will govern the
action and where the action is pending;
(3) identify any potential claims that class counsel chose
not to pursue so that the action would satisfy class
certification requirements;
(4) describe the fee arrangements with class counsel,
including the hourly fee being charged, or, if it is a
contingency fee, the percentage of the final award which will
be paid, including an estimate of the total amount that would
be paid if the requested damages were to be granted; and
(5) describe the procedure for opting out of the class.
(c) Settlement.--The parties to a year 2000 action that is brought
as a class action may not enter into, nor request court approval of,
any settlement or compromise before the class has been certified.
SEC. 403. DISMISSAL PRIOR TO CERTIFICATION.
Before determining whether to certify a class in a year 2000
action, the court may decide a motion to dismiss or for summary
judgment made by any party if the court concludes that decision will
promote the fair and efficient adjudication of the controversy and will
not cause undue delay.
SEC. 404. FEDERAL JURISDICTION IN YEAR 2000 CLASS ACTIONS.
(a) Jurisdiction.--Except as provided in subsection (b), a year
2000 action may be brought as a class action in the United States
district court or removed to the appropriate United States district
court if the amount in controversy is greater than the sum or value of
$1,000,000 (exclusive of interest and costs), computed on the basis of
all claims to be determined in the action.
(b) Exception.--A year 2000 action shall not be brought or removed
as a class action under this section if--
(1)(A) the substantial majority of the members of the
proposed plaintiff class are citizens of a single State of
which the primary defendants are also citizens; and
(B) the claims asserted will be governed primarily by the
laws of that State; or
(2) the primary defendants are States, State officials, or
other governmental entities against whom the United States
district court may be foreclosed from ordering relief.
TITLE V--CLIENT PROTECTION IN CONNECTION WITH YEAR 2000 ACTIONS
SEC. 501. SCOPE.
This title applies to any year 2000 action asserted or brought in
Federal or State court.
SEC. 502. DEFINITIONS.
In this title:
(1) Attorney.--the term ``attorney'' means any natural
person, professional law association, corporation, or
partnership authorized under applicable State law to practice
law.
(2) Attorney's services.--The term ``attorney's services''
means the professional advice or counseling of or
representation by an attorney, but such term shall not include
other assistance incurred, directly or indirectly, in
connection with an attorney's services, such as administrative
or secretarial assistance, overhead, travel expenses, witness
fees, or preparation by a person other than the attorney of any
study, analysis, report, or test.
(3) Contingent fee.--The term ``contingent fee'' means the
cost or price of an attorney's services determined by applying
a specified percentage, which may be a firm fixed percentage, a
graduated or sliding percentage, or any combination thereof, to
the amount of the settlement or judgment obtained.
(4) Hourly fee.--The term ``hourly fee'' means the cost or
price per hour of an attorney's services.
(5) Retain.--The term ``retain'' means the act of a client
in engaging an attorney's services, whether by express or
implied agreement, by seeking and obtaining the attorney's
services.
SEC. 503. CONSUMER'S RIGHT TO UP-FRONT DISCLOSURE OF INFORMATION
REGARDING FEES AND SETTLEMENT PROPOSALS.
Before being retained by a client with respect to a year 2000 claim
or a year 2000 action, an attorney shall disclose to the client the
client's rights under this title and the client's right to receive a
written statement of the information described under sections 504 and
505.
SEC. 504. INFORMATION AFTER INITIAL MEETING.
(a) Written Disclosure of Fees.--Within 30 days after the
disclosure described under section 503, an attorney retained by a
client with respect to a year 2000 claim or a year 2000 action shall
provide a written statement to the client setting forth--
(1) in the case of an attorney retained on an hourly basis,
the attorney's hourly fee for services in pursuing the year
2000 claim or year 2000 action and any conditions, limitations,
restrictions, or other qualifications on the fee, including
likely expenses and the client's obligation for those expenses;
and
(2) in the case of an attorney retained on a contingent fee
basis, the attorney's contingent fee for services in pursuing
the year 2000 claim or year 2000 action and any conditions,
limitations, restrictions, or other qualifications on the fee,
including likely expenses and the client's obligation for those
expenses.
(b) Consumer's Right to Timely Updated Information About Fees.--In
addition to the requirements contained in subsection (a), in the case
of an attorney retained on an hourly basis, the attorney shall also
render regular statements (at least once each 90 days) to the client
containing a description of hourly charges and expenses incurred in the
pursuit of the client's year 2000 claim or year 2000 action by each
attorney assigned to the client's matter.
SEC. 505. CONSUMER'S RIGHT TO TIMELY UPDATED INFORMATION ABOUT
SETTLEMENT PROPOSALS AND DETAILED STATEMENT OF HOURS AND
FEES.
An attorney retained by a client with respect to a year 2000 claim
or a year 2000 action shall advise the client of all written settlement
offers to the client and of the attorney's estimate of the likelihood
of achieving a more or less favorable resolution to the year 2000 claim
or year 2000 action, the likely timing of such resolution, and the
likely attorney's fees and expenses required to obtain such a
resolution. An attorney retained by a client with respect to a year
2000 claim or a year 2000 action shall, within a reasonable time not
later than 60 days after the date on which the year 2000 claim or year
2000 action is finally settled or adjudicated, provide a written
statement to the client containing--
(1) in the case of an attorney retained on an hourly basis,
the actual number of hours expended by each attorney on behalf
of the client in connection with the year 2000 claim or year
2000 action, the attorney's hourly rate, and the total amount
of hourly fees; and
(2) in the case of an attorney retained on a contingent fee
basis, the total contingent fee for the attorney's services in
connection with the year 2000 claim or year 2000 action.
SEC. 506. CLASS ACTIONS.
An attorney representing a class or a defendant in a year 2000
action maintained as a class action shall make the disclosures required
under this title to the presiding judge, in addition to making such
disclosures to each named representative of the class. The presiding
judge shall, at the outset of the year 2000 action, determine a
reasonable attorney's fee by determining the appropriate hourly rate
and the maximum percentage of the recovery to be paid in attorney's
fees. Notwithstanding any other provision of law or agreement to the
contrary, the presiding judge shall award attorney's fees only pursuant
to this title.
SEC. 507. AWARD OF REASONABLE COSTS AND ATTORNEY'S FEES AFTER AN OFFER
OF SETTLEMENT.
(a) Offer of Settlement.--With respect to any year 2000 claim, any
party may, at any time not less than 10 days before trial, serve upon
any adverse party a written offer to settle the year 2000 claim for
money or property, including a motion to dismiss the claim, and to
enter into a stipulation dismissing the claim or allowing judgment to
be entered according to the terms of the offer. Any such offer,
together with proof of service thereof, shall be filed with the clerk
of the court.
(b) Acceptance of Offer.--If the party receiving an offer under
subsection (a) serves written notice on the offeror that the offer is
accepted, either party may then file with the clerk of the court the
notice of acceptance, together with proof of service thereof.
(c) Further Offers Not Precluded.--The fact that an offer under
subsection (a) is made but not accepted does not preclude a subsequent
offer under subsection (a). Evidence of an offer is not admissible for
any purpose except in proceedings to enforce a settlement, or to
determine costs and expenses under this section.
(d) Exemption of Claims.--At any time before judgment is entered,
the court, upon its own motion or upon the motion of any party, may
exempt from this section any year 2000 claim that the court finds
presents a question of law or fact that is novel and important and that
substantially affects nonparties. If a claim is exempted from this
section, all offers made by any party under subsection (a) with respect
to that claim shall be void and have no effect.
(e) Petition for Payment of Costs, Etc.--If all offers made by a
party under subsection (a) with respect to a year 2000 claim, including
any motion to dismiss the claim, are not accepted and the dollar amount
of the judgment, verdict, or order that is finally issued (exclusive of
costs, expenses, and attorneys' fees incurred after judgment or trial)
with respect to the year 2000 claim is not more favorable to the
offeree with respect to the year 2000 claim than the last such offer,
the offeror may file with the court, within 10 days after the final
judgment, verdict, or order is issued, a petition for payment of costs
and expenses, including attorneys' fees, incurred with respect to the
year 2000 claim from the date the last such offer was made or, if the
offeree made an offer under this section, from the date the last such
offer by the offeree was made.
(f) Order To Pay Costs, Etc.--If the court finds, pursuant to a
petition filed under subsection (e) with respect to a year 2000 claim,
that the dollar amount of the judgment, verdict, or order that is
finally issued is not more favorable to the offeree with respect to the
year 2000 claim than the last such offer, the court shall order the
offeree to pay the offeror's costs and expenses, including attorneys'
fees, incurred with respect to the year 2000 claim from the date the
last offer was made or, if the offeree made an offer under this
section, from the date the last such offer by the offeree was made,
unless the court finds that requiring the payment of such costs and
expenses would be manifestly unjust.
(g) Amount of Attorney's Fees.--Attorney's fees under subsection
(f) shall be a reasonable attorney's fee attributable to the year 2000
claim involved, calculated on the basis of an hourly rate which may not
exceed that which the court considers acceptable in the community in
which the attorney practices law, taking into account the attorney's
qualifications and experience and the complexity of the case, except
that the attorney's fees under subsection (f) may not exceed--
(A) the actual cost incurred by the offeree for an
attorney's fee payable to an attorney for services in
connection with the year 2000 claim; or
(B) if no such cost was incurred by the offeree due to a
contingency fee agreement, a reasonable cost that would have
been incurred by the offeree for an attorney's noncontingent
fee payable to an attorney for services in connection with the
year 2000 claim.
(h) Inapplicability to Equitable Remedies.--This section does not
apply to any claim seeking an equitable remedy.
(i) Inapplicability to Class Actions.--This section does not apply
with respect to a year 2000 action brought as a class action.
SEC. 508. ENFORCEMENT OF CONSUMER PROTECTION RULES IN YEAR 2000 CLAIMS
AND ACTIONS.
A client whose attorney fails to comply with this title may file a
civil action for damages in the court in which the year 2000 claim or
year 2000 action was filed or could have been filed or other court of
competent jurisdiction. The remedy provided by this section is in
addition to any other available remedy or penalty.
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