[Congressional Record Volume 145, Number 60 (Thursday, April 29, 1999)]
[Senate]
[Pages S4405-S4413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        Y2K ACT--CLOTURE MOTION

  The PRESIDING OFFICER (Mr. Grams). The Senator from Oregon.
  Mr. WYDEN. I thank the Chair.
  To begin the hour of debate that we have on the Y2K measure, I would 
like to discuss the agreement entered into late yesterday, the special 
effort that was led by Senator Dodd of Connecticut. Senator Dodd has 
been the leader on our side on the Y2K issue. The agreement that was 
entered into last night involved Senator McCain, myself, Chairman 
Hatch, Senator Feinstein, Chairman Bennett; a number of colleagues were 
involved. It seems to me that this effort, which was led by Senator 
Dodd, has directly responded to a number of the concerns outlined by 
the White House in the statement that was delivered yesterday to the 
Senate. I would like to briefly outline the proposals which are going 
to be offered by the Senator from Connecticut in conjunction with the 
group of us that has been working on a bipartisan basis for this 
legislation.

[[Page S4406]]

  Under the changes made yesterday, there would be punitive damage caps 
for small businesses. We ensure that there is fairness to both sides. 
We would eliminate punitive damage caps for the large businesses, those 
over 50 employees. We would protect municipalities and governmental 
entities from punitive damages. And we would also ensure that State 
evidentiary standards for claims involving fraud were kept in place.
  The legislation would continue to do the following. There would have 
to be a 30-day notice. The plaintiff would have to submit a 30-day 
notice to the defendant on the plaintiff's intentions to sue, with a 
description of the Y2K problem. If the defendant responded with a plan 
to remediate, then an additional 60 days would be allowed to resolve 
the problem. If the defendant didn't agree to fix the problem, the 
plaintiff would be in a position to sue on the 31st day. We would 
establish--and this was of great concern to a number of Members of the 
Senate--liability proportionality. We would ensure that defendants 
don't pay more than the damage they are responsible for but exceptions 
would include plaintiffs with a modest net worth who were not able to 
collect from one or more defendants and defendants who had 
intentionally injured plaintiffs.
  I think this is especially important because, clearly, if you have a 
defendant who has engaged in intentionally abusive conduct, you want to 
send the strongest possible message, and we do establish liability 
proportionality under the agreement led by Senator Dodd.
  We would also preserve contract rights so as to not interfere with 
parties who have already agreed on Y2K terms and conditions. We would 
also confirm the duty to mitigate. This is an effort to essentially 
confirm existing law that plaintiffs have to limit damages and can't 
collect damages that could have been avoided. This is an opportunity 
for potential defendants to provide widespread information on Y2K 
solutions to assist potential plaintiffs.
  Finally, our proposal would encourage alternative dispute resolution, 
and it also keeps, as a number of Democrats have discussed with us, all 
personal injury and wrongful death claims with every opportunity to use 
existing law to ensure protection for the consumer and for injured 
parties.
  I commend my colleague from Connecticut, Senator Dodd. He is the 
Democratic leader on the Y2K issue. Let me also say that what Senator 
Dodd has done, in conjunction with myself and Senator McCain, is he has 
essentially taken a lot of what we have done in the securities 
litigation area, a lot of what we have done in the earlier Y2K 
legislation, and used that as a model. So Senator Dodd's proposal, in 
my view, is very constructive. We now have an agreement that has been 
entered into by Senator Dodd, Chairman McCain, myself, Chairman Hatch, 
who has been exceptionally helpful on this effort, our colleague from 
California, Senator Feinstein, and Senator Bennett, who chairs the Y2K 
committee.
  So I am very pleased about this effort that was entered into late 
yesterday. I say to my colleagues--especially Democrats who were 
concerned about the statement issued earlier by the White House--this 
compromise effort that I have outlined--and we also issued a statement 
on it--responds directly to a number of the concerns that were outlined 
by the White House, especially the two perhaps most important, which 
are protection for injured parties as it relates to the opportunity to 
seek punitive damages where appropriate, and also to ensure that with 
respect to evidentiary standards, no one could say that this was now 
raising somehow for all time a change through Federal law. We 
specifically preserve State evidentiary standards for important claims 
involving fraud.
  But I would say, Mr. President and colleagues, this legislation is 
not going to be a change for all time in our laws. It is essentially a 
bill, and it has a strong sunset provision that is going to last for 3 
years or so. We are trying to make sure, through that sunset provision, 
that we deal just with those concerns raised by Y2K. Y2K is not a 
partisan issue. It affects every computer system that uses date 
information. It was essentially an engineering tradeoff which brought 
us to this predicament; to get more space on a disk and in memory, the 
idea of century indicators was abandoned. It is hard for us to believe 
today that disk and memory space at a premium, but it was at one time. 
So in an effort to try to make sure during those earlier days there 
were standards by which programs and systems could exchange 
information, there was this engineering tradeoff.
  Now, some say you could just solve the Y2K problem by dumping all the 
old layers of computer code accumulated over the last few decades. That 
is not realistic. So what we ought to be trying to do is to make sure 
that information technology systems are brought into Y2K compliance as 
soon as possible. That is what the substitute that Senator McCain and I 
have offered seeks to do, and I believe that substitute has been vastly 
improved now by the leadership of the Senator from Connecticut, Mr. 
Dodd.
  I think as this discussion goes forward in the next hour, it is also 
important to recognize just how dramatic the implications are for this 
issue. I would like to cite one example which I know a number of my 
colleagues on the Democratic side can identify with very easily. A lot 
of my colleagues, led by Senator Kennedy, have been very concerned 
about making sure that there is a good prescription drug benefit for 
seniors under Medicare. It is the view of a lot of us that billions of 
dollars are wasted. Billions of dollars are wasted every single year as 
a result of seniors not taking prescriptions in a way so as to limit 
some adverse interaction. We waste billions of dollars and millions of 
seniors suffer as a result of not taking these prescriptions properly. 
And the best single antidotes that we have today are some of the new 
online computer systems which keep track of seniors' prescriptions and 
are in a position to help limit these adverse drug interactions.

  Well, the fact of the matter is, if we have, next January, chaos in 
the marketplace with our pharmacies and our health care systems and 
programs that help us limit these problems involving drug interactions, 
we are going to waste billions of dollars which could be used to get 
senior citizens decent prescription drug benefits, and we are going to 
hurt older people needlessly.
  Now, that has been a problem documented by the General Accounting 
Office. I raise it primarily because there has been a discussion in the 
Senate about how this legislation is just sort of a high-tech bill, and 
maybe some folks care about it in the State of Oregon where we care 
passionately about technology, or Silicon Valley, or another part of 
the country. I think we all know that technology is important in every 
State in our Nation. But I think it is very clear that these issues 
dramatically affect our entire Nation. It doesn't just involve a 
handful of high-tech companies; it involves millions and millions of 
Americans. The reason I have taken the Senate's time to discuss 
particularly how this would affect older people with their prescription 
drugs is that I think this is just a microcosm of this debate. I think 
this is just one small example of what this discussion is all about.
  Now, the Congressional Budget Office and other experts have estimated 
that Y2K-related litigation could cost consumers and businesses twice 
as much as fixing the Y2K problem itself. Now, I think those 
predictions may, in fact, be exaggerated; maybe they are wildly 
exaggerated. But I would much prefer to see the Senate craft 
responsible legislation now rather than to delay. And should the Senate 
not act on this legislation in an expeditious way, I believe there is a 
very real possibility that the Senate could be back here in January 
having a special session to deal with this issue.
  So I am very hopeful that we can go forward on it. I know that the 
minority leader, Senator Daschle, has worked very hard to be fair and 
to ensure that there is opportunity for colleagues to raise amendments. 
He has been working closely with the majority leader, Senator Lott. 
Those procedural issues are still to be resolved.
  I happen to agree with Senator Kennedy on this matter of raising the 
minimum wage. I think he is absolutely correct that we ought to raise 
the minimum wage. But I am very hopeful that we will not see these 
issues pitted against each other. It is extremely important to raise 
the minimum wage. I

[[Page S4407]]

also think it is extremely important to deal with this Y2K issue in a 
responsible fashion.
  I know there are other Members of the Senate who wish to speak on 
this issue. They haven't arrived on the floor quite yet. I think I will 
just take an additional couple of minutes, as we await them, to outline 
some of the changes that have been made since the legislation left the 
Commerce Committee. At that time, regrettably, it was a partisan bill 
and did not yet have the constructive changes made by the Senator from 
Connecticut, Mr. Dodd, and did not at that point include the eight 
major changes that Chairman McCain and I negotiated. I would like to 
wrap up my initial comments by taking a minute or two to talk about 
those changes that have been made in the legislation. For example, Mr. 
President and colleagues, early on none of the bills had a sunset 
provision in the legislation. There was a great concern that somehow 
some change in tort law and contract law would be for all time, 
establishing new Federal standards in this area. It was a feeling on my 
part and upon the part of other colleagues that it was absolutely 
critical to have a sunset provision to ensure that we were talking just 
about problems relating to the Y2K and not creating massive changes in 
Federal tort law or contract law that would last for all time.

  None of the original bills contained a sunset date. We now have a 3-
year sunset date making it very clear that any Y2K failure must occur 
before January 1, 2003, in order to be eligible to be covered by the 
legislation. Most industry analysts agree that Y2K failures are likely 
to follow a bell curve, a peaking on approximately January 1, 2000, and 
trailing off in 1 to 3 years. The sunset date that has been added 
tracks the very best professional analysis we have about the problem.
  I thank Chairman McCain for adding that in our initial negotiations. 
It is extremely important to me. I felt a lot of the Members of the 
Senate on the Democratic side felt that it was critical that this be a 
set of changes that was limited to a short period of time. That 3-year 
sunset addition, I think, sends a very powerful message that this is 
not changing tort and contract law for all time. I am very pleased that 
it has been added.
  Second, in the committee there were some vague, essentially new 
Federal defenses that I and others felt unfairly biased this process in 
favor of the defendant. Those were removed. Essentially what those 
original provisions said was that if defendants engaged in what was 
called a ``reasonable effort'' that they would be protected advocates. 
Consumers felt strongly that this language was mushy and vague.
  I agree completely with them on it. In fact, we originally had it in 
committee, and I opposed it at that time. But at the request of the 
consumer groups, this mushy, vague language that protects defendants 
who engaged in something called a ``reasonable effort'' was dropped.
  We also made changes to keep the principle of joint liability. After 
the legislation left the committee, we thought it was important to make 
sure that for cases involving fraud and egregious conduct we kept the 
traditional principle of joint and several liability. It was also 
extended to involve insolvent defendants.
  Senator Dodd has continued to help us in this area to ensure there is 
fairness for injured parties while at the same time making it clear 
that the defendants don't pay more than the damage for which they are 
responsible.
  The legislation continues to have in place what we negotiated after 
the legislation left the committee. This is incorporated into the 
announcements we made last night about the important efforts made by 
Senator Dodd.
  Finally, we thought it was important to make sure contract rights 
were paramount in this area. This legislation does not involve any 
changes whatever in personal injury rights. If, for example, an 
individual is in an elevator and that elevator falls 10 floors to the 
bottom of a building, and that individual is tragically injured, or 
dies, all of the personal injury remedies are kept in place. That is 
not something that would be affected by this legislation. This 
legislation involves contractual rights between private business 
parties. I and others felt that it was not adequately laid out in the 
committee legislation, that the contract rights were paramount in this 
area. As a result of the negotiations we had after the legislation left 
the committee, those rights were kept in place. I and others felt that 
was essential.
  I see my good friend from the State of Connecticut on the floor. I am 
going to yield in just one second. But first I want to take a minute 
and tell him how much I appreciate what he has done. He is, of course, 
the Democratic leader on the Y2K issue.

  I am essentially still a rookie in the Senate, and the Senator from 
Connecticut has been so helpful as we have tried to take this 
legislation that passed the committee unfortunately on a partisan vote 
and tried to make it responsive to the many legitimate issues that have 
been raised by our colleagues on this side of the aisle. The colleagues 
on this side of the aisle have been absolutely right about saying that 
the original bill was not adequate with respect to punitive damages. It 
wasn't adequate with respect to evidentiary standards. It didn't do 
enough to address the issues that we heard about from the White House 
late yesterday.
  As a result of an agreement led by the Senator from Connecticut, we 
have been responsive to those issues. We have essentially had nine 
major changes made after the bill came out of committee. The Senator 
from Connecticut has led the bipartisan effort. I discussed that 
bipartisan effort earlier involving Senator Feinstein, Senator Hatch, 
and Senator Bennett.
  I want to yield the floor now to the Senator from Connecticut, and 
thank him for all he has done to make this a bill that I believe can 
get the support of a significant number of Democrats, because it 
responds to what we heard from the White House. I thank him as well 
personally for all of the good counsel and help that he has given me. 
He is the leader on this issue. He is the one who navigated the 
securities litigation legislation. I pointed out how he took much of 
what the Senate learned on the securities litigation in the earlier Y2K 
bill and made that part of his compromise. I thank the Senator from 
Connecticut.
  Mr. President, I yield the floor. I look forward to hearing from the 
Senator from Connecticut.
  Mr. DODD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I will be very brief.
  Let me begin by thanking our colleague from Oregon. He is very 
effusive and gracious in his compliments. He describes himself as a 
rookie. But he is anything than a rookie when it comes to the 
legislative process. He served with great distinction in the other 
body, and has been here now several years proving the value of his 
experience as a seasoned legislator in the Senate.
  Let me just say I am very hopeful. I was very pleased yesterday that 
we were able to reach an agreement on three proposals that I felt, and 
many others felt, were essential if this Y2K litigation legislation was 
going to succeed. One of these proposals was to deal with the punitive 
damages cap issue with the exception of municipalities, government 
entities, and smaller businesses, which are described as businesses 
that employ 50 people or less. This number is more than the 25 
employees which usually defines a small business. I realize that one 
might make a very strong case that even more than 50 employees would 
still constitute a small business. But with a country that is growing 
all the time, I think most of us would agree that a small business 
today would still be one that employed 50 people or less.
  We also eliminated the caps on the director and officer liability 
because under the disclosure bill passed last year we crafted a safe 
harbor for forward-looking statements by directors and officers and 
managers. We felt that this safe harbor would suffice, along with the 
normal business judgment rule which protects managers to some degree. 
As a result, we didn't think a cap on director and officer liability 
was necessary.
  I am pleased that Senator McCain and Senator Hatch, as well as my 
good colleague and friend, Senator Bennett--who really has been the 
leader on the Y2K issue for so many years--agreed with both of those 
provisions, as well as with the state of mind provisions. It gets 
rather arcane when you

[[Page S4408]]

start talking about some of these legal terms, but they are important 
matters.
  What we are doing with the claims involving state of mind is leaving 
the status quo with respect to the evidentiary standard. That is, each 
State determines what that standard is, instead of having a national 
standard. There was some effort to have clear and convincing evidence 
be used as the evidentiary standard you would have to reach, but 34 
States already have that standard. Many other States do not have that 
standard, so we thought the best result on a compromise was to leave it 
to the States to decide what that standard ought to be, rather than 
incorporating it in this bill.
  Again, I thank Senator McCain, Senator Hatch, Senator Bennett, and 
others who have agreed to and supported these changes.
  As I understand it, there are other outstanding issues. The Senator 
from Oregon is absolutely correct. There are colleagues who have other 
amendments. They would not support this bill even with these additions. 
I know Senator Kerry of Massachusetts has a strong interest in 
proportional liability issues. I am confident that Senator Hollings and 
Senator Edwards have some suggestions they might want to make to this 
bill.
  My hope is that our leaders can work this out. I know Senator Daschle 
is more than prepared to sit down and work with our distinguished 
majority leader to allow for a series of amendments to be considered, 
as we normally do here, on this bill and to allow them to come up, to 
debate them, to vote on them, and to try and get this bill completed. I 
think we could complete it by this weekend, by tomorrow, if we began to 
work.
  I do not know what the schedule is. There may be other matters that 
are more pressing in the minds of the leadership. But it seems to me 
now that agreeing on a package of amendments that can be offered is the 
way to go. We are going to have a cloture vote here shortly. I am going 
to oppose invoking cloture because we have not yet agreed on a process 
and I do not want to deny an opportunity to any of my colleagues. I 
know there may be some on the majority side who do not yet agree with 
this bill. There are several who have strong reservations about this 
bill even with the additions we have made to it by this agreement, and 
they may have some amendments they may want to offer. That is how we do 
business in the Senate. The Presiding Officer knows of what I speak. We 
both served in the other body, the House of Representatives, where you 
have strict rules and whoever is in the majority controls this exactly, 
determining if any amendments are to be considered.
  In the Senate we are a different institution. Here we allow the free 
flow of debate and we do not deny Members the opportunity to bring up 
issues that they believe are critically important, even issues that are 
not germane to the matter before us. Although we do not encourage that 
in every instance, that can be done here. That is what makes the Senate 
of the United States different from the Chamber down the hall. We are, 
in a sense, counterweights to each other. In the House of 
Representatives the rule of the majority prevails, as it should. In a 
sense, in the Senate we protect the rights of a minority to be heard.
  That is what we are hoping the leaders will allow to happen today. We 
hope an agreement is reached on a series of amendments that will allow 
them to be debated and discussed and voted on. If that is the case, I 
am very confident that we will be able to pass this important piece of 
legislation and send it to the House, where they are considering 
similar legislation. I am also very confident that we can secure a 
signature from the President, who I know cares very much about this 
issue, as does the Vice President, and we can accomplish what many have 
sought here--to protect against the dangers of massive litigation over 
this year 2000 computer bug which is looming on the horizon.

  Two hundred and forty days from now, when the millenium clock turns, 
I do not think that any of us here wants to be looking back and saying 
we lost an opportunity here in April to try to at least limit the kind 
of financial hardship and economic disruption that could occur if we do 
not address the threat of a Y2K litigation explosion. So I am very 
hopeful that we can come together, as we have already come so far.
  Again, I express my thanks to the chairman of the committee who has 
the thankless job of trying to move a complicated bill along. Senator 
Hatch has also been tremendously helpful and supportive on this. Again, 
Senator Bennett of Utah, with whom I work on the Y2K committee, has 
done just an astounding job, I think, of bringing to the attention of 
all of us here, as well as to the people across this country, the 
importance of this issue. And, of course, the efforts of the 
distinguished Senator from Oregon and Senator Feinstein of California. 
My colleague from Connecticut, Senator Lieberman, who cares very much 
about litigation reform issues generally, has also been very helpful on 
this. I fear I am leaving some people out here. I hope I am not. But at 
this juncture I know these are people who have been involved in this 
issue and care about it. Again, my plea to the majority leader, and I 
know Senator Daschle cares about this, too, is to see if we can now 
come to some agreement.
  The PRESIDING OFFICER (Mr. Crapo). The time of the proponents has 
expired.
  Mr. DODD. I ask unanimous consent for an additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Will the Senator yield?
  Mr. DODD. I do.
  Mr. WYDEN. I will be brief. I concur completely with what the Senator 
from Connecticut has said. I want to ask him one question about the 
very helpful punitive damages agreement he negotiated with us last 
night.
  My understanding is, this agreement tracks very closely with what the 
Clinton administration has agreed to in the past with respect to 
product liability. In fact, our agreement seems to be more generous to 
plaintiffs than what the administration has agreed to in the past.
  In the past, they seemed to have said we ought to look at something 
that would have two times compensatory damages. This legislation has 
three times the damages, to make sure there is a fair shake for the 
consumer. Is that the understanding of the Senator from Connecticut? I 
ask because he has been involved in this issue involving punitive 
damage questions for quite some time. I think he has been very fair to 
plaintiffs in this area. It seems to me, actually, the Senator has gone 
beyond what has been talked about in various other discussions that we 
had.
  In just this minute I would like to take one more moment to hear the 
Senator's opinion on that issue which is a key issue for Democrats.
  Mr. DODD. I think I ought to ask unanimous consent for an additional 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. In response to my colleague--and I thank him for raising 
the issue--I do not claim great expertise in the product liability 
area. We have done some work, and I appreciate his comments, on the 
securities bill, the standards reform bill, and here on the Y2K area. 
So going back and revisiting this, while I do not recall the point the 
Senator raises, I do not question what he has said. I presume, in fact, 
that he is correct. I simply do not bring any personal recollection of 
how we crafted that.
  I know the administration cares about the Y2K issue. I negotiated 
with the White House on securities litigation, and there were some 
difficult issues to resolve. The Senator may recall that in that case 
the President vetoed the bill and the Congress overrode the veto. That 
is how that piece of legislation became law.

  On uniform standards, President Clinton and Vice President Gore were 
tremendously helpful and supportive, and I suspect they will be here as 
well. I want to be careful. I think it is fine to go back and use 
previous examples on punitive damages and on director and officer 
liability and on state of mind issues. However, there are differences 
in the application of law when you are dealing with bodily injury and 
other questions where product liability issues can come in, and even 
more differences when contract law comes into play. Contract law is 
basically what we are talking about here.
  Let me just say this, because the Senator has raised a very important 
point. I know there are going to be

[[Page S4409]]

Members--there always are--who think that we are going too far in the 
punitive damage area and with director and officer liability, and who 
think we are giving away too much. I think there are people who care 
about the trial bar and think we have not done enough in this area and 
that there is too much here against the trial bar.
  This bill really does provide a balance at this point. We have not 
adopted this amendment, but on the assumption it is adopted, we have 
removed the caps on punitive damages in most instances, removed the 
caps on director and officer liability, and kept the status quo on 
state of mind issues. Those are issues the trial bar said were very 
important to them.
  Is it everything they want? No. Does it give away more than some who 
care about these issues want? It does. But traditionally, when you are 
trying to craft a piece of legislation with as many different points of 
view as 100 Senators can bring to the debate, clearly no side is going 
to prevail with everything it would like. What we have done here, I 
think, is struck a sound, good balance that is a good bill and one I 
hope will attract the broad support of Republicans and Democrats, and 
to move on.
  I see the chairman of the committee has arrived on the floor here. In 
his absence I was praising him. I would do so in his presence as well, 
but I realize he may want to go on to other matters here. I have 
already been taking advantage of the Presiding Officer's presence here 
by extending the time by unanimous consent, and I do not want to abuse 
the graciousness he has already demonstrated to me any more than that, 
so I yield the floor.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to speak for an 
additional 7 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, before the Senator from Connecticut leaves 
the floor, I thank him for all of his efforts. We have engaged in 
intensive and sometimes emotional negotiation, and we have had a long 
relationship for many years. His contribution, no matter how this 
cloture vote comes out today, has been critical in moving this process 
forward. It has given me optimism that we will be able to resolve this 
issue. Without his involvement, we would not have the opportunities 
that I believe we will have in the future.
  In my prepared statement, which I will make in just a minute, this 
issue is too important to just go away. I think the Senator from 
Connecticut knows that and the Senator from Oregon, who has played such 
a critical role, along with Senator Feinstein, Senator Hatch, and 
others on this issue, know that. It is not going to go away.
  What the Senator from Connecticut has done and the Senator from 
Oregon has done is move this process forward to where I believe we will 
be able to get it done, because it is too important for us to just say 
we cannot agree on it. I thank both my colleagues for all their 
efforts.
  Mr. President, we are now at a critical time if we are to pass this 
bill. We have been attempting to debate and act on this matter for a 
week. We are about to have our second cloture vote as we crawl through 
the morass of Senate procedure. We have endured hours of quorum calls 
waiting for substantive discussion. We have heard at length the views 
of the ranking member, Senator Hollings, in opposition to this bill. We 
have detoured from the bill to hear the minority's complaints about 
scheduling unrelated matters of interest to them. But now, Mr. 
President, we are about to have a critical vote.
  This is a vote to allow us to complete action on this critical bill. 
This is a vote to cast aside the partisan procedural games and get on 
with the business of the nation. Important business, as the thousands 
of CEO's and business people from all segments of industry: high tech, 
accounting, insurance, retail, wholesale, large and small, who are 
actively supporting this bill will attest. The Y2K problem is not going 
away, nor is it going to be postponed by petty, partisan procedural 
wrangling.
  The cost of solving the Y2K problem is staggering. Experts have 
estimated that the businesses in the United States alone will spend $50 
billion in fixing affected computers, products and systems. But experts 
have also predicted that the potential litigation costs could reach $1 
trillion--more than the legal costs associated with asbestos, breast 
implants, tobacco, and Superfund litigation combined--more than three 
times the total annual estimated cost of all civil litigation in the 
United States. This is not just my opinion, but are facts supported by 
a panel of experts on an American Bar Association panel last August. 
These costs represent resources and energy that will not be directed 
toward innovation, new technology, or new productivity for our nation's 
economy. This litigation could overwhelm and paralyze the industries 
driving the best economy in our history.
  The Y2K phenomenon, while anticipated for years, presents 
nevertheless, a one-time, unique problem. Our legal system is neither 
designed, nor adequately equipped, to handle the flood of litigation 
which we can expect when law firms across the country are laying in 
wait, in eager anticipation of a golden opportunity. More to the point, 
the vast majority of our Nation's citizens do not want to sue. They 
want their computers, their equipment, their systems to work. They want 
solutions to problems, and a healthy economy, not a trial lawyers' full 
employment act.

  S. 96 presents a solution, a reasonable practical, balanced, and most 
important, bi-partisan solution. Since it passed out of committee, with 
the help of my colleagues especially Senator Wyden, Senator Dodd, 
Senator Feinstein, and others it has been improved, narrowed, and more 
carefully crafted to ensure a fair and practical result to the Y2K 
situation.
  The Public Policy Institute of the Democratic Leadership Council 
published a Y2K background paper in March which has been widely 
circulated and quoted on the Senate floor in the past several days. The 
authors state:

       In order to diminish the threat of burdensome and 
     unwarranted litigation, it is essential that any legislation 
     addressing Y2K liability:
       Encourage remediation over litigation and the assignment of 
     blame;
       Enact fair rules that reassure businesses that honest 
     efforts at remediation will be rewarded by limiting 
     liability, while enforcing contracts and punishing 
     negligence;
       Promote Alternative Dispute Resolution; and
       Discourage frivolous lawsuits while protecting avenues of 
     redress for parties that suffer real injuries.

  S. 96 does all of those things.
  It provides time for plaintiffs and defendants to resolve Y2K 
problems without litigation;
  It reiterates the plaintiff's duty to mitigate damages, and 
highlights the defendant's opportunity to assist plaintiffs in doing 
that by providing information and resources;
  It provides for proportional liability in most cases, with exceptions 
for fraudulent or intentional conduct, or where the plaintiff has 
limited assets;
  It protects governmental entities including municipalities, school, 
fire, water and sanitation districts from punitive damages;
  It eliminates punitive damage limits for egregious conduct, while 
providing some protection against runaway punitive damage awards; and
  It provides protection for those not directly involved in a Y2K 
failure;
  It is a temporary measure. It sunsets January 1, 2003;
  And it does not deny the right of anyone to redress their legitimate 
grievances in court.
  I have spent hours working with several of my colleagues, including 
the distinguished Senator from Connecticut, Mr. Dodd, to resolve 
specific concerns. We have arrived at an agreement to further modify 
the substitute amendment my friend Mr. Wyden and I earlier agreed upon. 
There may still be others, such as Mr. Kerry of Massachusetts, with 
ideas, suggestions, or a different perspective on solving the problem.
  I welcome hearing other ideas. My colleagues may want to offer 
amendments. I am willing to enter into consent agreements to allow the 
opportunity for debate on other ideas. We can then vote and the best 
idea will win. That is the way of the Senate. But, that cannot take 
place unless we vote yes now on cloture.
  The clock is ticking. Mr. President, 246 days plus a few hours remain 
until

[[Page S4410]]

January 1. This bill cannot wait. Its purpose is to provide incentives 
for proaction--to encourage remediation and solution and to prevent Y2K 
problems from occurring. It will not serve its purpose unless it passes 
now.
  This vote is a simple vote. It is a critical vote. This is a vote as 
to whether we want to solve and prevent the Y2K litigation problem, 
which has already begun, or whether we will let partisan ``politics as 
usual'' be an obstacle to our nation's well-being. It is a vote to 
either help the American economy or to show your willingness to do the 
bidding of the Trial Lawyers Association. Make no mistake, I hope 
companies across America are paying attention. Senators will vote to 
help protect small and large business, the high tech industry, and 
others, or they will choose to protect the trial lawyers' stream of 
income. That is the choice. I ask my colleagues to consider carefully 
the message they send with their vote today. Are you part of the 
solution? Or part of the problem?
  Mr. President, I believe it is time for the vote. I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina has 22 minutes 
remaining.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Mr. President, we have a cloture vote set at a specific 
time; is that correct?
  The PRESIDING OFFICER. The cloture motion vote was scheduled to occur 
at the end of 1 hour of debate. We have had unanimous consent 
agreements extending the time. There are 22 minutes remaining in the 
debate. This time is under the control of the Senator from South 
Carolina.
  Mr. HOLLINGS. I yield whatever time the Senator needs.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KERRY. Mr. President, I will address the question of the Y2K for 
just a moment, if I may, and then I was going to ask unanimous consent 
just to make a couple comments as in morning business for the purpose 
of introducing a bill.
  Prior to doing that--do I understand the Senator from Arizona would 
object to that taking place at this point?
  Mr. McCAIN. I would object to going to morning business at this time. 
The Senator from South Carolina has 22 minutes left, and I am glad to 
listen on that time, but it is getting time for us to vote on cloture.
  Mr. KERRY. All right.
  Mr. President, let me just say a few words on the issue of the Y2K. I 
have been working quietly with a number of colleagues in order to try 
to see if we cannot come to some sort of compromise.
  I heard the Senator from Arizona assert that the principal reason 
that we are where we are right now is because the revenue stream for 
lawyers, for trial counsel, might be somehow impacted, and that is the 
sort of overbearing consideration that has brought us to this point of 
impasse. Let me just say as directly and as forcefully as I possibly 
can that there really are public policy considerations that extend 
beyond that.
  I have tried cases previously as a trial attorney. I understand the 
motivations and needs to certainly have a client base which allows you 
to survive. I have seen some ugly practices out there, and I have 
joined in condemning them as a Member of the Senate and also as a 
member of the bar.
  I do not think any of us who are members of the bar take pride in the 
practices of some attorneys who have obviously given the profession a 
bad name at times and have abused what ought to be a more respected and 
sacrosanct relationship in the country.

  But at the same time, just as with any business--whether it is Wall 
Street and brokers or businesspeople who are manufacturers who somehow 
put a product on the marketplace that cost lives--there are always 
exceptions to fundamental rules. There are also a lot of lawyers out 
there who work for nothing, who do pro bono work, who give their 
energies to fighting for the environment or for civil rights or a whole 
lot of other things. I think it is a mistake to sweep everybody into 
one basket and suggest that that is all this issue is about.
  We have some time-honored traditions in this country about access to 
our court system. We have some deep-rooted principles which allow 
victims of certain kinds of abuses, and sometimes even arrogance, to be 
able to get redress for that. That is one of the beauties of the 
American judicial system. And I could show--and I do not have time 
now--countless examples of life being made better for millions of 
Americans because some lawyer took a case to court and was willing to 
fight for a particular principle.
  I happened to bump into Ralph Nader a little while ago going into a 
Banking hearing related to an issue on privacy on the House side. I 
recall, obviously, his landmark efforts with respect to automobiles and 
safety, and millions of American lives have been saved because of those 
kinds of challenges.
  Sometimes the pendulum sweeps too far, and I well recognize that. In 
fact, there is a great tendency within the Congress for us to react to 
a particular problem, and, kaboom, we wind up with unintended 
consequences, and then we sort of have to pull the pendulum back. I 
have done that.
  I have joined with colleagues here to change the law on liability 
with respect to aircraft manufacturing because we found that there was 
a particular problem for small, light plane manufacturing in the 
country. We also changed the law with respect to securities reform, and 
I joined in that effort. And I joined in overriding the veto of a 
President with respect to those things because I thought the reform was 
important and legitimate. No one here ought to condone the capacity of 
individual lawyers to simply trigger a lawsuit with the hopes of 
walking into a company and then holding them up for settlement because 
it is too expensive to litigate.
  I believe that in the compromise we have on the table, as well as in 
other efforts that have been offered, there are legitimate restraints 
on the capacity of lawyers to abuse the system. There are increased 
specificity requirements with respect to the pleadings so that you 
cannot just go in on a fishing expedition. There is a 90-day period for 
cure; i.e., once a company is noticed that they are in fact in a 
particular possible breach with respect to the contract that extends 
for the sale of a particular computer or software program, they are 
given 90 days within which time they can cure the problem and there is 
no lawsuit. In addition to that, there are a series of other restraints 
which I think are entirely appropriate, and I would vote for those.
  Let's say somebody's mother or father is at home and you have a bank 
account and a bank loses your entire bank account, for whatever reason, 
or there is some doctor's appointment that is lost by somebody that was 
critical to the provision of some serum or antibiotic. Who knows what 
might be occurring that has been computerized and expected on a 
particular schedule that might be affected. There is a requirement in 
their legislation, the legislation currently about to be voted on, 
which would deny any consumer access to remedy for 90 days.

  You get a 90-day stay period. What is the rationale for that? That 
was supposed to apply to the companies, not to individuals. But we 
don't have a legitimate carve-out for consumers, for the average 
consumer, for Joe ``Six-Pack'' who might be affected by this. They are 
somehow going to be plunked into a basket with all of the other 
companies.
  In addition to that, there is a legitimate problem with respect to 
access to the system. If you have a company that does business abroad, 
does not have a home base here, you have no capacity to reach them with 
respect to service of process. We are going to say that we are going to 
deny somebody the capacity to have full redress or remedy, and they are 
going to have to go chase that other person somehow, no matter what the 
level of that person's responsibility is. To do that is effectively to 
say to people, Sorry, folks. No lawyer in the country is going to take 
that case. We're effectively stripping you of the rights to be able to 
have access to the court system.
  I am for a fair balance here. I have a lot of companies in 
Massachusetts that are high-tech companies, a lot of companies that are 
impacted by this. I know a lot of people in the industry whom I respect 
enormously who deserve to be protected against greedy, voracious sorts 
of wrongful, totally

[[Page S4411]]

predatory efforts to try to hold them up in the system. I am for 
stopping that.
  I would, in our effort, put restraints on the capacity to bring class 
actions wrongly. And I think we have an increased standard with respect 
to materiality that would make it much tougher for people to put a 
class together without a showing of injury.
  So the real issue here before us in the Senate is, What is really 
trying to be achieved here? If we are trying to simply achieve a 
balanced, fair approach to protecting companies from unfair lawsuits 
and being balanced about the average citizen's approach to the court 
system there is a way to do that. But if what we are doing is a larger 
tort reform agenda, because of the bad name that lawyers in general 
have, and some lawyers in particular have earned for them, if that is 
the effort, in order to seek some broader change in the legal system 
that denies people access to the courts, then I think we have a 
different kind of problem.
  There are many people in this Chamber who have practiced law before, 
some on the other side of the fence, on the Republican side, who do not 
believe any legislation is necessary, that this is a one-time problem, 
that the greatest incentive you can have to avoid a problem is for 
people to fix it ahead of time, and the greatest way in which you will 
get the best and biggest and fastest fix ahead of time is to have 
people required to be open to the possibilities of redress if they did 
not do that.
  But if we limit people's potential liability, there is a great 
likelihood that a lot of people will say, Well, I'm not going to fix 
this. I'm not liable. I don't need to do anything about it. They can't 
bring suit against me. And you may, in fact, have taken away the very 
incentive you are trying to create.
  Mr. President, there are very real and legitimate substantive 
arguments: Access to our court system. What is the best incentive? How 
do you approach this fairly? How are you going to wind up with a system 
that is balanced? All of those issues are really at stake in this. I 
hope colleagues will remember that as they approach the question of 
what is the best compromise here which would give us the kind of 
balance that we need.
  Mr. President, I yield the remainder of my time to the Senator from 
South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina has 11 minutes 
remaining.
  Mr. HOLLINGS. Mr. President, I thank my distinguished friend from 
Massachusetts. He has summed it up.
  I will only point out again this morning's news, the Wall Street 
Journal. I quote from page B4:

       [By now] the year 2000 bug was supposed to have played 
     havoc with corporate computer spending, with companies 
     supposedly too worried about their mainframes to think of 
     anything else. A cautious attitude about the issue was the 
     theme in comments by big technology companies that released 
     first-quarter results in the past few weeks.
       But with one notable exception, the technology industry has 
     so far escaped any broad year 2000 slowdown.

  Mr. President, I ask unanimous consent to print in the Record an 
editorial from this morning's Washington Post about Y2K liability.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Apr. 29, 1999]

                             Y2K Liability

       The Senate is considering a bill to limit litigation 
     stemming from the Year 2000 computer problem. The current 
     version, a compromise reached by Sens. John McCain (R-Ariz.) 
     and Ron Wyden (D-Ore.), would cap punitive damages for Y2K-
     related lawsuits and require that they be preceded by a 
     period during which defendants could fix the problems that 
     otherwise would give rise to the litigation. Cutting down on 
     frivolous lawsuits is certainly a worthy goal, and we are 
     sympathetic to litigation reform proposals. But this bill, 
     though better than earlier versions, still has fundamental 
     flaws. Specifically, it removes a key incentive for companies 
     to fix problems before the turn of the year, and it also 
     responds to a problem whose scope is at this stage unknown.
       Nobody knows just how bad the Y2K problem is going to be or 
     how many suits it will provoke. Also unclear is to what 
     extent these suits will be merely high-tech ambulance chasing 
     or, conversely, how many will respond to serious failures by 
     businesses to ensure their own readiness. In light of all 
     this uncertainty, it seems premature to give relief to 
     potential defendants.
       The bill is partly intended to prevent resources that 
     should be used to cure Y2K problems from being diverted to 
     litigation. But giving companies prospective relief could end 
     up discouraging them from fixing those problems. The fear of 
     significant liability is a powerful incentive for companies 
     to make sure that their products are Y2K compliant and that 
     they can meet the terms of the contracts they have entered. 
     To cap damages in this one area would encourage risk-taking, 
     rather than costly remedial work, buy companies that might or 
     might not be vulnerable to suits. The better approach would 
     be to wait until the implications of the problem for the 
     legal system are better understood. Liability legislation for 
     the Y2K problem can await the Y2K.

  Mr. HOLLINGS. I thank the distinguished Chair.
  ``Liability legislation for the Y2K problem can await the Y2K.'' What 
we are talking about is an instrument, a computer. The average cost for 
a small business and otherwise is $2,000. They are not going to buy a 
$2,000 instrument in 1999 that is not going to last past January 1.
  It is quite obvious that it is not the poor, but it is the 
economically advantaged, the small businesses, and the doctors in 
America that use this instrument now. And all they have to do is go 
into Circuit City and say: Now, put it up, let me see that it works, 
that it is Y2K compliant.
  Why do away with the entire law system, the 10th amendment to the 
Constitution, the habitual and constitutional control of torts at the 
State level under article 10 over the 200 years of history? Do you know 
why? Because they put in this amendment to amendment to amendment. When 
they put in the first one, even chambers of commerce objected to it. 
What you had in the McCain bill was still a bad bill. The McCain-Wyden 
bill is still a bad bill. The McCain-Wyden amendment to the McCain-
Wyden amendment is still bad, as evidenced by this editorial here this 
morning.
  Again, Mr. President, I ask unanimous consent to have printed in the 
Record a letter from Kaiser Permanente Executive Offices, dated April 
27.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                            Kaiser Permanente,

                                      Oakland, CA, April 27, 1999.
     Hon. Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: On behalf of Kaiser Permanente, we 
     would like to address a number of serious concerns regarding 
     S. 96, a bill introduced by Senator John McCain, which 
     addresses disputes arising out of year 2000 computer based 
     problems (Y2K).
       In brief, S. 96 as currently drafted:
       Threatens the ability of the health care industry to 
     maintain rates;
       Severely limits the rights of small businesses, consumers 
     and non-profit organizations like ours to recover the often 
     excessive costs of Y2K fixes, purchases and upgrades;
       Unfairly prejudices (or completely bars) the ability of the 
     health care community to recover the costs associated with 
     any potential personal injury or wrongful death award from 
     the entity primarily at fault for the defect that caused the 
     injury. S. 96 permits the manufacturers, vendors and sellers 
     of non-compliant Y2K equipment and products to profit at the 
     expense of their customers and leaves the health care 
     industry (and ultimately our employer groups and patients) 
     responsible to bear the costs of their negligence.
       The four provisions in S. 96 that cause us the most concern 
     are as follows:
       The Act would not prohibit a patient injured in a hospital 
     by a Y2K defective product from suing the hospital or health 
     plan providing the medical service in which the defect arose. 
     The Act would, however, limit or bar a claim brought by the 
     hospital or health plan against the manufacturer or vendor of 
     the defective product, leaving the health care providers 
     solely responsible for the damages.
       The 90 day waiting period requirement will impair the 
     ability of the health care industry to complete its Y2K 
     compliance efforts. The health care providers must remedy 
     their Y2K problems quickly to be compliant with internal and 
     external (including state and federal regulatory) timeliness. 
     For a considerable length of time, Kaiser Permanente has been 
     diligently identifying, mediating, validating, and testing 
     equipment and software with respect to Y2K issues. A key 
     component of this process has been demanding information, 
     assistance, and corrective action from manufacturers and 
     vendors, who often have control of the source codes and 
     other information that is necessary to achieve compliance. 
     Vendors who at this late date have still not adequately 
     addressed their Y2K defects in their products, despite 
     repeated requests by us, should not be afforded a 90 day 
     period in which to respond to such requests. Such a delay 
     in pursuing legal remedies could prejudice our ability to 
     complete our Y2K efforts by the year 2000.

[[Page S4412]]

       While the Act limits the liability of manufacturers and 
     sellers of defective equipment and software, it does not 
     require that they fix the problems that they created for a 
     reasonable price. Some manufacturers and vendors sold Y2K 
     defective products in recent years knowing that their 
     products would not be usable past the year 2000. Yet S.96 
     would allow such tortfeasors to charge exorbitant rates for 
     fixes which should be provided at a discounted or nominal 
     fee. In other words, the Act allows tortfeasors to increase 
     their ill-gained profits at the health care purchaser's 
     expense.
       The Act does not carefully limit the use of the powerful 
     defenses it creates. Rather, it permits a defendant to assert 
     defenses in any action related ``directly or indirectly to an 
     actual or potential Y2K failure''. Manufacturers and vendors 
     will find it useful to assert that there are Y2K issues in 
     cases where a Y2K problem is not alleged, lengthening and 
     confusing litigation and potentially barring claims for other 
     defects.
       The above provisions in S.96 are of the greatest concern to 
     us. However, there are other unfair provisions in the Act 
     which inequitably limit liability, including the abrogation 
     of joint liability, the mandate of proportionate liability, 
     the limitation to economic loss, the increase in the standard 
     of proof for the plaintiff, and the addition of new defenses 
     for the defendant. Please carefully review S.96 again in 
     light of our concerns. We would be happy to discuss this with 
     you further, please do not hesitate to call Wendy Weil at 
     510-271-2630 or Laird Burnett at 202-296-1314.
           Sincerely,

                                               Mary Ann Thode,

                                            Senior Vice President,
                                          Chief Operating Officer.

  Mr. HOLLINGS. Quoting from the letter:

       In brief, S. 96 [as currently drafted] threatens the 
     ability of the health care industry to maintain rates; 
     severely limits the rights of small businesses, consumers and 
     non-profit organizations like ours to recover the often 
     excessive costs of Y2K fixes, purchases and upgrades; 
     unfairly prejudices (or completely bars) the ability of the 
     health care community to recover the costs associated with 
     any personal injury or wrongful death award from the entity 
     primarily at fault for the defect that caused the injury. S. 
     96 permits the manufacturers, vendors and sellers of non-
     compliant Y2K equipment and products to profit at the expense 
     of their customers and leaves the health care industry (and 
     ultimately our employer groups and patients) responsible to 
     bear the costs of their negligence.

  Mr. President, I could read on and on, but when different 
industries--the automobile industry, the grocer industry, and 
otherwise--come to the attention of this 36-page document to change 
around the 200-year experience of the enforcement of torts, the Uniform 
Commercial Code nationally, and do away with it and the so-called 
privilege it required. To come in here and cap punitive damages, 
describe a small business as any 50 or less--I notice in this most 
recent amendment, Mr. President, on page 2, a defendant is described as 
an unincorporated business, a partnership, corporation, association, or 
organization with fewer than 50 full-time employees. It used to be 
smaller, 25. But they are going in the wrong direction, all with this 
so reasonable, so bipartisan, so studied, so compromising, so 
interested--come on. Give me a break.
  Look at the next sentence: ``No cap with injury specifically 
intended.'' Paragraph 1 does not apply if the plaintiff establishes by 
clear and convincing evidence that the defendant acted with specific 
intent to injure the plaintiff. So there go the class actions. Each 
plaintiff has got to come in and prove by clear and convincing, not by 
the greater weight of the preponderance of evidence, but by clear and 
convincing, that it is specifically intended for that particular 
plaintiff to be injured.
  Mr. President, what we really have is a fixed jury. We could talk 
sense, but I notice in the morning paper that Kenneth Starr, the 
independent prosecutor, is asking the judge down there in Arkansas to 
go and interview the jurors after the verdict. He ought to come to 
Washington where they interview the jurors before the verdict.
  That is my problem on the floor of the Senate here this morning; I 
can tell you that right now. They run around this Chamber, the Chamber 
of Commerce is in here, the Business Roundtable, this conference board, 
get all those organizations going. I am tending to my business down 
home. And you are for tort reform. You know this Y2K liability, $1 
trillion for the trial lawyers and all that.
  Yes, I am against that. I am against a trillion dollars for the trial 
lawyers. Everybody says that, running for office. Sure, the idea of 
tort reform.
  So they have Kosovo, they have the balanced budget, and the lockbox 
charade going on, and right in the middle of this they come with all 
the fixed votes, the jurors, before we even get to debate and show that 
there is a nonproblem.
  I am getting there. I can see the Parliamentarian blinking his eyes, 
so I am running out of time here. We are going to have to vote. But 
here is the biggest fix I have ever seen. We had a difficult time 
trying to get the truth around to our colleagues about S. 96 here this 
morning, but I hope we can withhold and get some time to vote against 
this cloture motion so we will have time to really show what is going 
on.
  We have problems in this country, but I can tell Senators, it is not 
the tort system. It is not how the tort system affects business. 
Business is going through the roof financially in New York. Everybody 
is making money, particularly in the computer business. Of all the 
people to ask for special legislation here in the Congress as well as 
special protections and the revision of all the tort practices, is the 
computer industry, the richest in the entire world.
  I appreciate the indulgence of the Chair, and I yield the floor.
  Mr. LIEBERMAN. Mr. President, I would like to add my strong support 
to the bill we are currently considering, the Y2K Act. Although I plan 
to join my colleagues on this side of the aisle in voting against 
cloture, I don't want anyone to construe that vote as an indication 
that I have any doubts about the need for, and the wisdom of, this 
legislation.
  Congress needs to act to address the probable explosion of litigation 
over the Y2K problem, and it needs to act now. We are all familiar with 
the problem caused by the Y2K bug. Although no one can predict with 
certainty what will happen next year, there is little doubt that there 
will be computer program failures, possibly on a large scale, and that 
those failures could bring both minor inconveniences and significant 
disruptions in our lives. This could pose a serious challenge to our 
economy, and if there are wide spread failures, American businesses 
will need to focus on how they can continue providing the goods and 
services we all rely on in the face of disruptions.
  Just as importantly, the Y2K problem will present a unique challenge 
to our court system--unique because of the likely massive volume of 
litigation that will result and because of the fact that that 
litigation will commence within a span of a few months, potentially 
flooding the courts with cases and inundating American companies with 
lawsuits at the precise time they need to devote their resources to 
fixing the problem. I think it is appropriate for Congress to act now 
to ensure that our legal system is prepared to deal efficiently, fairly 
and effectively with the Y2K problem--to make sure that those problems 
that can be solved short of litigation will be, to make sure that 
companies that should be held liable for their actions will be held 
liable, but to also make sure that the Y2K problem does not just become 
an opportunity for a few enterprising individuals to profit from 
frivolous litigation, unfairly wasting the resources of companies that 
have done nothing wrong or diverting the resources of companies that 
should be devoting themselves to fixing the problem.
  To that end, I have worked extensively with the sponsors of this 
legislation--with Senators McCain, Gorton, Wyden, Dodd, Hatch, 
Feinstein and others--to try to craft targeted legislation that will 
address the Y2K problem. Like many others here, I was uncomfortable 
with the breadth of the initial draft of this legislation. I took those 
concerns to the bill's sponsors, and together, we worked out my 
concerns. I thank them for that. With the addition of the amendment 
just agreed to by Senators Dodd, McCain and others, I think we have a 
package of which we all can be proud, one which will help us fairly 
manage Y2K litigation. Provisions like the one requiring notice before 
filing a lawsuit will help save the resources of our court system while 
giving parties the opportunity to work out their problems before 
incurring the cost of litigation and the hardening of positions the 
filing of a lawsuit often brings. The requirement that defects be 
material for a class action to be brought will allow recovery for those

[[Page S4413]]

defects that are of consequence while keeping those with no real injury 
from using the court system to extort settlements out of companies that 
have done them no real harm. And the provision keeping plaintiffs with 
contractual relationships with defendants from seeking through tort 
actions damages that their contracts don't allow them to get will make 
sure that settled business expectations are honored and that plaintiffs 
get precisely--but not more than--the damages they are entitled to.
  I think it is critical for everyone to recognize that the bill we 
have before us today is not the bill that Senator McCain first 
introduced or that was reported out of the Commerce Committee. Because 
of the efforts of the many of us interested in seeing legislation move, 
the bill has been significantly narrowed. For example, a number of the 
provisions changing substantive state tort law have been dropped. 
Provisions offering a new ``reasonable efforts'' defense have been 
dropped. The punitive damages section has been altered. And, instead of 
a complete elimination of joint liability, we now have a bill that 
holds those who committed intentional fraud fully jointly liable, that 
offers full compensation to plaintiffs with small net worths and that 
allows partial joint liability against a defendant when its co-
defendants are judgment proof--precisely what most of us voted for in 
the context of securities litigation reform.
  I understand that there are those who still have concerns about some 
of the remaining provisions in the bill. To them and to the bill's 
supporters, I offer what has become a cliche around here, but has done 
so because it is truly a wise piece of advice: let us not make the 
perfect the enemy of the good. Y2K liability reform is necessary--in 
fact critical--legislation that we must enact. Those of us supporting 
the legislation must be open to reasonable changes necessary to make 
the bill move, and those with legitimate concerns about the bill need 
to work with us to help address them. I hope we can all work together 
to get this done.


                             Cloture Motion

  The PRESIDING OFFICER. All time for debate has expired. Under the 
previous order, the clerk will report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the pending 
     amendment to Calendar No. 34, S. 96, the Y2K legislation:
         Senators Trent Lott, John McCain, Rick Santorum, Spence 
           Abraham, Judd Gregg, Pat Roberts, Wayne Allard, Rod 
           Grams, Jon Kyl, Larry Craig, Bob Smith, Craig Thomas, 
           Paul Coverdell, Pete Domenici, Don Nickles, and Phil 
           Gramm.

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on amendment No. 267 to S. 96, the Y2K legislation, shall 
be brought to a close?
  The yeas and nays are required under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New York (Mr. Moynihan) is 
absent due to surgery.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Moynihan), would vote ``no.''
  The PRESIDING OFFICER (Mr. Allard). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 52, nays 47, as follows:

                      [Rollcall Vote No. 95 Leg.]

                                YEAS--52

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--47

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Cochran
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Specter
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Moynihan
       
  The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are 
47. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader.

                          ____________________