[Congressional Record Volume 145, Number 82 (Thursday, June 10, 1999)]
[Senate]
[Pages S6844-S6849]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                Y2K ACT

  The Senate continued with the consideration of the bill.
  Mr. HOLLINGS. Mr. President, I just was trying my best to give 
colleagues a summary of State action on Y2K problems. This is pretty 
well up to date. Seven States have passed Y2K government immunity 
legislation; that is, Florida, Georgia, Hawaii, Nevada, Virginia, 
Oklahoma and Wyoming. Twelve States have killed Y2K government immunity 
problems: Colorado, Idaho, Illinois, Indiana, Louisiana, Kansas, 
Mississippi, Montana, New Hampshire, New Mexico, Utah, Washington, and 
West Virginia. One State has passed the Y2K business immunity bill; 
that is Texas. Whereas 10 States have killed Y2K business immunity 
bills: Arizona, Colorado, Connecticut, Florida, Indiana, Iowa, Kansas, 
Oklahoma, West Virginia and Washington. Two States have killed the 
bankers immunity bill, originally the year 2000 computer problem: 
Arizona and Indiana. Two States have killed the Computer Vendors 
Immunity Bill; that is California and Georgia. One State has killed the 
bill to limit class action suits; that is Illinois, the distinguished 
Presiding Officer's State. And 38 States have miscellaneous pending Y2K 
bills at this time.
  I think the distinguished Senator from California wanted to point out 
an interesting provision in the State of Arizona.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I thank my friend for yielding. I thank 
his staff for doing just a tremendous job of ferreting out all these 
various laws.
  I have something to tell the Senate that I hope will sway them in 
favor of the Boxer amendment. In the research that was done by Senator 
Hollings' staff, we find out that the law in Arizona, which was signed 
on April 26, Senate bill 1294, includes in it stronger language than 
the Boxer amendment. I repeat: The Senator from Arizona, whose bill we 
are debating, cannot agree to the Boxer amendment which simply says if 
you have a way to fix the problem for the consumer, be they individual 
or business, then do it. He can't accept that. But in his own State, 
the law says if you want to take advantage of a particular new set of 
laws that they have passed to protect these businesses, here is what 
you have to do. You have to unconditionally offer at no additional cost 
to the buyer either a repair or remedial measures. If you do not do 
that, you cannot take advantage of these new laws that will protect 
business.

  Let me put that in a more direct fashion. In the State of Arizona, 
the State of Senator McCain, who has the underlying bill, a company 
cannot take advantage of the new Y2K laws, which will help them, unless 
they have offered to fix the problem. They have to prove that they 
unconditionally offered at no additional cost to the buyer a repair or 
other remedial measures.
  I want to engage my friend from South Carolina in a little discussion 
here, ask him a question. Does it not astound the Senator that we have 
an amendment before us that will not be accepted by the Senator whose 
own State has a tougher provision than the Boxer provision, that we 
can't go even halfway toward the State of Arizona law which says in 
order to take advantage of the new legal system you have to 
unconditionally offer to fix the problem?
  I ask my friend, who is very knowledgeable in this, if this doesn't 
strike him as being very strange?
  Mr. HOLLINGS. This is astounding, because in getting this information 
up and looking at the glossary of State action, we all say: After all, 
don't you remember in 1994, the Contract with America, we got the tenth 
amendment, the best government is that government closest to the 
people, let us respect the States on down the line. They had all these 
particular provisions. Here comes an assault with respect to actually 
killing all the State action and everything else, when they probably 
had a more deliberate debate than we have had at the local level, and 
they have all acted.
  Here you put in a provision which responds, generally speaking, to 
the action taken by all the States, and yet they say, no, we know 
better than the States now and that we are not going to have a fix.
  It is astounding to this particular Senator the course this bill has 
taken. Here I am trying to get a vote. I know my distinguished 
chairman, Senator McCain, worked like a dog here in the

[[Page S6845]]

well. He said: I want to make sure we get rid of this thing, and I am 
working on Senator Sessions and Senator Gregg to get these amendments 
up and have them considered so we can dispose of the bill. So I know he 
is not the holdup.
  The press listens, and they are sending the word down to me that they 
have a computer software conference or something at the beginning of 
the week, and they would like to have this as sort of part of the 
computer software program. You cannot even intelligently debate the 
thing. It has gotten to be on message so that you have to have the 
message at the right time.
  This is disgraceful conduct on the part of the Senate, if that is the 
case. I like to cooperate. I went right over to my distinguished friend 
from Alaska and I said, look, I am trying to get a vote, but I know 
they are headed to the Paris airshow. If your plane is leaving or 
whatever it is, I understand. I will yield and let's go ahead then and 
we will have a Tuesday vote. I was trying to find a reason, a good 
logical reason. It was logical to me to indulge the needs of my friend 
from Alaska, because it is an important conference they are going to. 
He said, no, we don't leave until late this evening. So it wasn't that. 
Then I asked over here, and it isn't this. It isn't Senator McCain. I 
keep going around trying to find out, and here we are trying to agree 
in order to get the bill passed and they won't agree to agree.
  Mrs. BOXER. I say to my friend, I have been on my feet since I think 
12:30--about 12, I think.
  Mr. HOLLINGS. I asked the Senator to only take 10 minutes, does she 
remember that?
  Mrs. BOXER. Yes.
  Mr. HOLLINGS. When the Senator came to the floor, I said, ``Senator, 
Senator McCain wants to get rid of it, and I do. Will you agree to 20 
minutes, 10 to a side? Senator McCain is ready to yield back his 10 
minutes.''
  Now, that is the way it was at noontime today. Here now, at quarter 
past 3, we are running around like a dog chasing his tail trying to 
find out why in the world, when they are having an ice cream party all 
over the grounds around here, you and I are trying to get the work of 
the Senate done, and they can't give us a good excuse. When you say, 
``All right, I will amend it,'' and you are bound to agree, so we can 
move on, they say, ``No, no, we don't want to agree to agree.''
  Mrs. BOXER. Well, I remember that the Democrats were being criticized 
and they were saying: You are not letting us get this Y2K bill up for a 
vote, because we wanted to do--I remember this very clearly--some 
sensible gun amendment. We were told we were holding up Y2K. We said: 
We can get those things done. And, thanks to the majority leader, we 
moved to the juvenile justice bill, and with bipartisan help we got 
some good, sensible gun amendments through, and we went right to Y2K.
  I want to say to my friend, the ranking member on the committee, who 
has some real problems with the bill--more problems than this Senator 
has--didn't object to proceeding to the bill. He said: OK, we will 
proceed. He asked me to please make my case. I said: I will settle for 
any time agreement. I said I didn't need a vote. I said: Take my 
amendment. I agreed to the other side's recommendations. Then they 
said: Oh, we can't do it.
  I don't understand why they can't take this amendment. I keep coming 
back to that. Every time I work my way into my best closing argument, 
because I think there is going to be a vote--I had my best closing 
argument at 1:55, because I thought we were voting at 2. Then I had to 
rev up again at 2:30, and I got another good closing argument. Now they 
say we are going to have a vote at 3:30. I don't see anybody here yet. 
I hope they come here, because I think it is important.
  The amendment pending before the Senate is a consumer amendment, 
because it says fix the problem. It is weaker than the consumer 
amendment that is included in the Arizona law. This is incredible. In 
the Arizona law, which is a beautiful law, which passed overwhelmingly, 
they say--and this is important; it defines the affirmative defenses 
that will be established if you do certain things. You have to do 
certain things to help people. If you do these things in good faith, 
you get a little more protection at the courthouse. What are they?

       The defendant has to notify the buyer of the product that 
     the product may manifest a Y2K failure. And the notice shall 
     be supplied by the defendant explaining how the buyer may 
     obtain remedial measures, or providing information on how to 
     repair, replace, upgrade, or update the product. The 
     defendant [meaning the company] has to unconditionally offer, 
     at no additional cost to the buyer, to provide the buyer the 
     repair or the remedial measures.

  All we say in the Boxer amendment is, you don't even have to do it 
for free--only for free if it is the last 5 years. Prior to that, from 
1990 to 1995, at cost; before that, you can charge whatever you can 
get. The Boxer amendment doesn't even say you have to do this to avail 
yourself of these new laws. It simply says if you don't do it, the 
judge--if there is a court case--has to take into consideration the 
fact of these cases. I cannot believe this wasn't accepted in a 
heartbeat. It is weaker than the Arizona law.
  What has become of us here? I don't know. I cannot figure it out. I 
love high-tech companies, software companies. They are the heart and 
soul of my State. They are good people. They are good corporate 
citizens. Most of them--the vast majority--are doing the right thing. 
They are doing these things already. So whom do we protect in this bill 
that was so important that we were supposed to rush to it, and now they 
are not going to vote on it until next week? What happened to all the 
rhetoric that this is an urgent problem? If we went to the 
Congressional Record, it would be embarrassing for people who were 
saying, ``Vote next week,'' just a couple of weeks ago, who said, 
``This is urgent.'' I heard one of my colleagues on the other side say 
this is an emergency. I am baffled by it.

  So I think what I will do is yield the floor, because I don't know 
what else I can say to convince my colleagues, who I am sure are 
listening to every word from their offices, that this amendment is the 
right thing to do for the people we represent, the people who vote for 
us.
  I am going to tell my friends in the Senate, if you don't vote for 
this amendment, the phone calls will start coming in on January 1, 2, 
3, 4, and 5, saying, ``I thought you took care of Y2K. You had so much 
fanfare about the bill. What can I do now?''
  There will be nothing they can do, because without this Boxer 
amendment there is no requirement to fix the problem during the 
remediation period, or ``cooling-off period.'' The only thing required, 
to repeat myself, is a letter: Oh, yes, I got your letter. I know you 
have a problem. I will get back to you. That is it. You don't have to 
do the fix. It doesn't have to be for free. You can do whatever the 
market will bear, and you get the protections of the bill.
  It is not right, my friends. It is not right. We can make it better.
  When I go back home and talk to my friends in Silicon Valley and they 
say, ``Senator why didn't you support the underlying bill?'' I am going 
to be honest and say, ``This bill is an insult to you; it is an insult 
to you. It is assuming you are too weak to do the right thing. It is 
assuming you are a bad corporate actor.''
  I can't do that to the people I represent. They are too good, too 
important, too successful to have this kind of treatment. That is how I 
see it.
  So, again, hope against hope that we will have a change of heart 
here, and maybe they will take this amendment or try to go back to the 
offer they gave us a little while ago. Otherwise, I guess we will just 
have to wait for the motion to table.
  I yield the floor.
  Mr. HOLLINGS. Mr. President, you learn to study these things. You 
look closely, and you finally realize what is happening.
  I remember an old-time story about the poll tax days and the literacy 
testing of minorities in order to vote. In South Carolina, a minority 
came to the poll prepared to vote, and a man presented him with a 
Chinese newspaper. He says, ``Here, read that.'' He takes the paper and 
turns it around all kinds of ways, and he says, ``I reads it.'' The man 
asks him, ``What does it say?'' The minority says, ``It says ain't no 
poor minority going to vote in South Carolina today.''
  They know how to get the message. In turn, I can get this message. 
This goes right to what is really abused as

[[Page S6846]]

an expression, ``Kill all the lawyers.'' To Henry VI, Dick Butcher 
said, ``We have to kill all the lawyers.'' What they were trying to do 
was foster tyranny, and they knew they could not do it as long as they 
had lawyers available to look out for the individual and individual 
rights.
  Say I am the lawyer and I have a lot of work. Generally speaking, I 
am a successful lawyer. And someone comes to me in January or February 
with a Y2K problem, and I am saying I am not handling those cases, you 
ought to try to see so-and-so, wherever we can find somebody, because 
the entire thrust is in order to really get anything done and get a 
result I know that I am limited. I can't take care of the poor small 
businessman and the lost customers. I can't take that small businessman 
and his employees that have had to take temporary leave because his 
business is down. I can't take care of the other economic damage like 
the lost advertising which has come about while his competition takes 
over. I have to tell him it is the crazy law that they passed up there 
in Washington. But that is how things are getting controlled whereby 
you just come in.
  So I have to write a letter on your behalf, and after I write that 
letter, 30 days, then another 60 days is the so-called cooling-off 
period. Then, if nothing happens, which apparently you tried to get it 
fixed and nothing has happened, I have to draw pleadings and file and 
everything else. It all comes down to $5,000 or $10,000 for a computer. 
I have spent $5,000 of my time and costs, unless you are rich enough to 
start paying me billable hours. I spend $5,000 for much of my costs and 
staff and hours of work myself. The most I can do is get you back half 
of a computer.
  It is a no-win situation. They have passed a law in essence not just 
for rushing to the courtroom or courthouse, as they talk about, but to 
make sure that nobody wants to handle a case of that kind because there 
is no way to make an honest recovery to make it partially whole. You 
just totally lose out.
  They know what they are doing when they oppose the bill to get the 
thing fixed.
  That is what I was thinking.
  I know with all the State action and the moving forces behind it 
because I saw it last year. All you have to do is run for reelection 
and go from town to town and meeting to meeting all over your State. 
You learn your State. You learn the issues. You learn the opposition. 
You learn the movements afoot --or the NRA with respect to rifles. You 
learn about the abortion crowd. You learn about the other groups that 
have come in now with respect to any and every phase of lawyers.
  It is sort of ``kill all the lawyers''--take away, holding up the 
lawyers for everybody to vote against. But the consumers are the ones 
who suffer.
  The distinguished Senator from California ought to really be 
commended for finally bringing--after 3 days of debate--this into sharp 
focus. Lawyers, one way or the other, are not going to be handling 
these cases. Trial lawyers have bigger cases to handle.
  But I can tell you here and now that consumers and small business are 
going to suffer tremendously.
  Almost since I opposed the bill I have felt that it serves them 
right. Maybe I will prove I was right in the first instance, and maybe 
they will start sobering up with this intense messianic drive that they 
have on foot to ``kill all the lawyers.''
  That looks good in the polls. That is why we don't do anything about 
Social Security or campaign finance or budgets or deficits or Patients' 
Bill of Rights and the important things. But if we can get that poll--
and if that poll will show something about the lawyers--then we can get 
a bill up here, take the time to amend it, and then when we want to cut 
it off and argue everybody into doing so, and then finally agree that 
we can all agree and get rid of it, they say no way.
  Mrs. BOXER. Will my friend yield for just a moment?
  Mr. HOLLINGS. I am glad to yield.
  Mrs. BOXER. I appreciate it. I wanted to talk to him about it.
  Mr. President, I wonder if I can now send a modified amendment to the 
desk.
  Mr. HOLLINGS. I yield the floor.


                     Amendment No. 621, As Modified

  Mrs. BOXER. Mr. President, I send a modified amendment to the desk to 
replace my own amendment.
  The PRESIDING OFFICER. Is there objection to the modification?
  The amendment is so modified.
  The amendment (No. 621), as modified, is as follows:
       In section 7(e) insert at the end the following:
       (5) Special rule.--
       (A) In general.--With respect to a defendant that is a 
     manufacturer of a device or system (including 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 to 
     process, to calculate, to compare, to sequence, to display, 
     to store, to transmit, or to receive year-2000 date-related 
     data that experienced a Y2K failure, the defendant shall, 
     during the remediation period provided in this subsection--
       (i) make a reasonable effort to make available to the 
     plaintiff a repair or replacement, if available, at the 
     actual cost to the manufacturer, for a material defect in a 
     device or other product that was first introduced for sale 
     after January 1, 1990 and before January 1, 1997; and
       (ii) make a reasonable effort to make available at no 
     charge to the plaintiff a repair or replacement, if 
     available, for a material defect in a device or other product 
     that was first introduced for sale after December 31, 1996.
       (B) Damages.--If a defendant knowingly and purposefully 
     fails to comply with this paragraph, the court shall consider 
     that failure in the award of any damages, including economic 
     loss and punitive damages.

  Mrs. BOXER. Is it necessary that the clerk read it, or can I just 
proceed to explain it?
  The PRESIDING OFFICER. It is not necessary to have the clerk report.
  Mrs. BOXER. Thank you very much.
  I wanted to explain to my friend what I have done to make this even 
more palatable to the Senate. We are now saying the fix only has to be 
made to small businesses and individuals.
  So we have narrowed the scope of the repair. Now it becomes even 
easier for the companies to make these repairs. I say to my friend when 
he talks about this attack on lawyers that I find it very interesting, 
because I read when Newt Gingrich was in power on the other side of the 
aisle that they had a poll done. They had a document prepared which 
everyone was able to see at some point or other. Their pollsters said 
in order to divert attention from an issue, attack the lawyers. Just 
take the attention away from what it is about.
  In other words, if there is a dangerous product--let's say a crib--we 
had these before where the slats in the cribs are made in such a way 
that a child could die because they could fit their head through those 
cracks and choke to death--divert attention from the product, and say 
look at that greedy lawyer, he made X million dollars.
  What they do not understand is that all of these kinds of cases--we 
are not talking about personal injuries, because this bill doesn't 
involve personal injuries. But I am just making the point here that 
when a lawyer takes on such a case--I want to ask my friend to talk 
about this because he knows this for a fact--they don't get paid unless 
there is a recovery in the suit. They put out maybe sometimes years of 
work and much expense, and they take a chance because they know the 
company is powerful and big and strong, and by the way, it has many 
lawyers. So they go to the people to divert attention from the tragedy 
that occurred. This is what a lot of politicians do, and they say it is 
all about the lawyers in Washington.
  I hope the people of the United States of America know that there is 
a rule against frivolous lawsuits and that you can't bring a frivolous 
lawsuit because a judge can throw it out.
  In addition, what lawyer would bring a frivolous lawsuit knowing that 
he or she is going to be out of pocket for all of these expenses and 
know that they only get paid if it was really an important lawsuit?
  There are many lawyers out there who are not good citizens, who are 
not good corporate citizens, who do not have social conscience, because 
it is just like any other profession--just like we are talking about 
the software industry, or in the computer hardware industry. Most of 
the people are wonderful, and there are some bad actors.
  But let us not get to the floor of the Senate and turn these debates 
into lawyers versus everybody else, because that is not what it is 
about. It is about making sure that people have their

[[Page S6847]]

problems resolved. If we start talking about lawyers, it isn't really 
relevant to real people who are going to deal with this real problem on 
January 1; they wake up, go to their computer and try to conduct 
business, and find themselves in deep trouble.
  I ask my friend if he would comment.
  Mr. HOLLINGS. Mr. President, commenting with respect to the attention 
that the Senator from California gives to consumers, and the comments 
made about frivolous lawsuits, I am an expert witness on frivolous 
lawsuits. I can tell you categorically that the courts will take care 
of frivolous lawsuits quickly. You can see it. I could mention some 
that have been in the news with respect to the computer people very 
recently.
  But the reason I say an expert witness is because I used to bring 
individual injury suits with respect to the citizenry around my 
hometown and sometimes in bus cases. I had a good friend who was a 
professor at the law school when I was there, and thereupon the 
chairman of the board of the South Carolina Electric and Gas, which 
operated the city bus transit system, an event I said I had not been 
involved with, but that is wrong.

  These corporate lawyers get really lazy. They get too used to the 
mahogany walls, the oriental rugs, somebody with a silver pitcher and 
some young lady to run in and give them a drink of water.
  Rushing to the courtroom and trying cases is work. I remember saying 
to a man named Arthur Williams: I could save you at least $1 million if 
I were your lawyer. Later on he retained me.
  Right to the point: The first or middle of the month of November, 
what I call the Christmas Club started to develop. Nobody could get on 
the transit bus who didn't slip on a green pea, get their arm caught on 
a door, or the door didn't jerk open and they fell and hurt their back.
  This is back in the late 1950s when we were trying these cases.
  I said we should try these cases. The claims were around $5,000 to 
$10,000. The settlements were half, $2,500 or $5,000. The lawyers 
thought they were too important to go to court to try cases.
  Let me tell about a lawyer who was willing to try cases. His name was 
Judge Sirica. He wrote a book. While he was writing that book, he was 
being driven around Hilton Head by myself.
  He looked at me and said: Senator, don't ever appoint a district 
judge to the Federal bench who hasn't been in the pitch.
  I said: Judge, you mean trying cases?
  He said: That is right.
  He said when he got out of law school he flunked the bar exam three 
times. When he finally passed that bar exam, he didn't have any 
clients, he had to go to magistrate court and take what trials he could 
pick up. He said he got pretty good at it. He said after a few years, 
Hogan and Hartson asked: Will you come on board and start trying our 
cases?
  It is work. Frivolous cases--they are small cases, some of them 
without foundation, a lot of them with foundation--but lawyers with 
this billable hour nonsense have gotten awfully lazy as a profession.
  Talk about delays. When lawyers have billable hours, the opposition 
wants to play golf in the afternoon. We don't have to go to the judge, 
I will give you a continuance.
  You agree, and the poor client is sitting there paying for the 
billable hours.
  In any event, Judge Sirica said when he walked in the first day and 
listened to the witness, he told counsel to meet him in chambers. This 
is the first day of trial. When he got them back in chambers, he said: 
You are lying, and I'm not going to put up with this nonsense in my 
courtroom. He said: I could tell it from my trial experience. You are 
starting tomorrow morning, and you are going to bring out the truth, 
and you are not going to put up with these kinds of witnesses. It is 
not going to be just a citation and dock your pay. I will put you in 
jail if you all don't straighten up and start trying the cases in the 
proper manner.
  He said that broke Watergate. To this practitioner, that goes right 
around to the so-called frivolous cases that all the politicians are 
running around about. It is work. You don't run to the courthouse.
  As I pointed out earlier today, if you filed a case this afternoon, 
you would be lucky to get a trial in that courtroom in the year 1999, I 
can tell you that. The civil docket is backed up that much. I don't 
know of any court that can actually get to trial.

  Who uses that? Not the fellow making the motions and paying the 
expenses and time and the depositions and interrogatories. The 
corporate billable hour lawyer, he likes that. He keeps a backup. It is 
to his interest you don't dispose of justice too quickly. All during 
the year, he has money coming in. He knows he is a winner regardless of 
what happens to his client.
  They are engaged in predatory practices, frivolous lawsuits, and are 
running to the courthouse.
  The Senator from California is rendering a wonderful service. This is 
about consumers. The amendment of the Senator from California seeks to 
get us away from the courthouse, get us away from lawyers, get us away 
from law, get away from legal loopholes, hurdles, and jumps.
  The businesses say: Just give me a fix. I have to do business, and I 
don't want to lose my customers, service, and reputation. So she 
requires a fix--all for the consumer.
  That is what the Senate and the entire Congress has heard.
  There is no question, looking at the results at the State level, how 
they have turned back all of these things, that is why they are coming 
to Washington after the ``turn backs.'' Look at all of the States that 
have debated this issue. The only State in the glossary of State action 
that passed a Y2K business immunities bill, the only State, is the 
State of Texas.
  Mrs. BOXER. Will the Senator yield?
  Mr. HOLLINGS. I yield the floor.
  Mrs. BOXER. Mr. President, I seek recognition at this time.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Mr. President, it is 3:50. The Senator from Washington 
was on the floor and said he would be here at 3:30 to table this 
amendment.
  I wonder if the ranking member knows what is going on around here. I 
was told originally, when I offered my amendment at around the noon 
hour, we would have a vote at 2 o'clock. Then it was 2:30. Then my 
friend from Washington State gave me the courtesy of announcing he was 
not going to allow an up-or-down vote on my amendment; he was going to 
move to table at 3:30. It is 10 to 4. Have they sent my friend any 
word?
  Mr. HOLLINGS. They have not sent me any word. The press sent me word 
about the software alliance.
  I know the Senator from Arizona, the chairman of our committee, that 
distinguished Senator, was intent on getting rid of this bill. He told 
me that early this morning. We got the witnesses lined up, we talked 
down the witnesses, we made them get the time agreements, and he had an 
important commitment he made to leave around 12. He tried to extend it 
to 12:30.
  During that half hour he said: I got us down to two amendments. I 
said: All I know of is the Boxer amendment.
  I have now talked Senator Torricelli into not presenting his. I 
hasten to add, I am glad I did not talk Senator Boxer out of her 
amendment, because it is the only amendment that really brings into 
issue the matter of consumers we are trying to defend today.
  He said: Don't worry. He came back to me twice and said: I have it; I 
think I worked that out; you go right ahead.
  I said: I don't want to vote with you not here.
  He said: Go ahead; these commitments have been made.
  Everybody knows Senator McCain's position on the bill. We will have 
to have a conference when it passes. There will be a conference report.
  I pressured Senator Boxer and told my colleagues we can vote. Several 
said: No; we have a lunch hour; let's vote at 2 o'clock. And then 2 
o'clock became 2:30, and 2:30 became 3 o'clock, and 3 o'clock became 
3:30. Now it is 10 minutes to 4.
  I have tried to be diligent in managing the bill and moving the 
business of the Senate. There is nothing more I can say. I am waiting 
on the leadership. This is above my pay grade.
  We can go ahead and call the roll. I am sure the distinguished 
staffer on the other side of the aisle is ready to

[[Page S6848]]

call the roll. He has worked hard. We are all ready.
  This is above our pay grade.
  Mrs. BOXER. Mr. President, if it is against the pay grade of one of 
the most senior respected Members in the Senate, the ranking member on 
the committee of jurisdiction, clearly it is way above my pay grade.
  I get paid to do a job here, and the job is to represent the people 
of California. Make life better for them, make life easier for them, 
give them a chance at the American dream, keep their environment 
beautiful and clean, give them opportunity, fairness. What I am trying 
to do is take that set of values and apply it to this bill. I do not 
want them waking up on the morning of January 1, 2000, and finding that 
their small business just crashed before them and they have no remedy 
when, in fact, a remedy exists and the manufacturer simply has to make 
a simple fix.

  Again, my breath is taken away when I read the law in Arizona--I 
might say a Republican State--which says that before any manufacturer 
could take advantage of the easier rules of the law to defend himself 
or herself against a claim, they have to do certain things 
affirmatively, including offering to fix at no cost. In other words, 
what you say in Arizona is: We are happy to help you, Mr. and Mrs. 
Businessperson, but it has to be after you have affirmatively tried to 
fix the Y2K problem.
  In the underlying bill, we require very little of a business before 
they can get to the ``safe harbor,'' if I might use that term broadly, 
of this bill. What do they have to do? Write a letter:

       Dear Friend: I got your letter. I know you have a Y2K 
     problem. I am studying it. I'll get back to you.

  Then they qualify for the rest of the benefits of this law. Who does 
it help? It helps the bad actors. Who does it hurt? The consumers. Why 
are we doing it? God knows.
  We could have done a good bill on this. The amendment I put before 
you comes from a House bill that was proposed in 1998 by David Dreier 
and Chris Cox. This is not some provision written by a liberal Member 
of Congress. It was written by two Members with 100 percent business 
records. Why did they put it in the bill? Because I think when they sat 
down to write the bill that was the object of the original Y2K 
proposal--a cooling off period, remediation period, get the fix done, 
stay out of court. I think, if this amendment is taken, if it is 
approved, I think that will be a good step forward for consumers. If it 
is not, there is nothing in this bill, in my opinion, that does one 
thing to cure the problem.
  So, it is now 5 minutes to 4. Senator Gorton said he would be back at 
3:30 to table the Boxer amendment. I am perplexed at what our plans are 
here, whether we are just going to not have any more votes today or 
whether we are just whiling away the time or some Members had to go to 
some other obligation. I do not know what is happening because I do not 
have word. All I know is I have been here since 12 o'clock on this 
amendment. It is a good amendment. I am hoping perhaps no news is good 
news, I say to my friend. Maybe they are so excited about this 
amendment they are trying to work it out somehow.
  I see Senator Lieberman is here to make some remarks. I am happy to 
yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.


                Amendment (No. 621) As Further Modified

  Mrs. BOXER. Mr. President, if my colleague will yield for just one 
more minute, I send a modification to the desk to replace the other one 
that was sent in error.
  The PRESIDING OFFICER. Without objection, the amendment is further 
modified.
  The amendment (No. 621), as further modified, is as follows:

       In section 7(e) insert at the end the following:
       (5) Special rule.--
       (A) In general.--With respect to a defendant that is a 
     manufacturer of a device or system (including 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 to 
     process, to calculate, to compare, to sequence, to display, 
     to store, to transmit, or to receive year-2000 date-related 
     data that experienced a Y2K failure, the defendant shall, 
     during the remediation period provided in this subsection--
       (i) make available to any small business or noncommercial 
     consumer plaintiff a repair or replacement, if available, at 
     the actual cost to the manufacturer, for a device or other 
     product that was first introduced for sale after January 1, 
     1990 and before January 1, 1995; and
       (ii) make available at no charge to the plaintiff a repair 
     or replacement, if available, for a device or other product 
     that was first introduced for sale after December 31, 1994.
       (B) Damages.--If a defendant fails to comply with this 
     paragraph, the court shall consider that failure in the award 
     of any damages, including economic loss and punitive damages.
       (C) With respect to this section, a small business is 
     defined as any person whose net worth does not exceed 
     $500,000, or that is an unincorporated business, a 
     partnership, corporation, association, unit of local 
     government, or organization with fewer than 25 full-time 
     employees.

  Mr. LIEBERMAN. Mr. President, I see an opportunity here to make a few 
general comments about the bill as we await the next procedural step. 
With the Chair's permission, I will proceed with that, which is to say 
to add my strong support to the underlying bill.
  Mr. President, Congress really needs to act to address the probable 
explosion of litigation over the Y2K problem. It needs to act quickly. 
This is a problem that has an activating date. It is nothing that will 
wait for Congress to act. It will be self-starting, self-arriving. 
Therefore, we must act in preparation for it.
  Obviously we are now familiar, if we had not been before this 
extended debate, with the problem caused by the Y2K bug. Although no 
one can predict with certainty what will happen at the turning of the 
year into the new century and the new millennium, there is little doubt 
that there will be Y2K-caused 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 problem 
for our economy, and if there are widespread failures, it will surely 
be in all of our interests for American businesses to focus on how they 
can continue providing the goods and services we all rely on in the 
face of those disruptions rather than fretting over and financing 
defense of lawsuits.
  Perhaps just as important as the challenge to our economy, the Y2K 
problem will present a unique challenge to our court system, unique 
because of the possible volume of litigation throughout the country 
that will likely result and because that litigation will commence 
within a span of a few months, potentially flooding the courts with 
cases and inundating American companies with lawsuits at precisely the 
time they need to devote their resources to fixing the problem.
  So I think it is appropriate for Congress to act now to ensure that 
our legal system is prepared to deal fairly, efficiently, and 
effectively with the Y2K problem, to make sure those problems that can 
be solved short of litigation will be solved that way, 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 
what is ultimately frivolous litigation, unfairly wasting the resources 
of companies that have done nothing wrong, companies large and small, 
or diverting the resources of companies that should be devoting 
themselves to keeping our economy going to fixing the problem.
  To that end, I was privileged to work with the leadership of the 
Commerce Committee and the sponsors of this legislation, particularly 
Senators McCain, Wyden and Dodd, to try to craft a more targeted 
response to this Y2K problem.
  Like many others here, I was actually uncomfortable with the scope, 
the breadth, and the contents of the initial draft of this legislation 
because I thought it went beyond dealing with our concerns about the 
Y2K potential litigation explosion and became a general effort to adopt 
tort reform. I took those concerns to the bill's sponsors, as others 
did. Together I found them to be responsive and we worked out those 
concerns. I am very grateful to them for that.
  With the addition of the amendments offered by Senators Dodd, Wyden 
and others, we have a package now before us that I think we can really 
be proud of and with which we can be comfortable because it is one that 
will help

[[Page S6849]]

us fairly manage the Y2K litigation while protecting legal rights and 
due process.
  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 costs 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 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 in this bill keeping plaintiffs with contractual 
relationships with defendants from seeking, through tort actions, 
damages that their contracts do not allow them to get, will make sure 
that settled business expectations, as expressed in duly negotiated and 
executed contracts, are honored and that plaintiffs get precisely but 
not more than the damages they are entitled to under those contracts.
  I also think it is important for everyone to recognize that the bill 
we have before us today is not the bill that was originally introduced, 
not even the bill that was reported out of the Commerce Committee. 
Because of the cooperative efforts of Senators McCain, Dodd, Wyden, 
Gorton, and so many others who are interested in seeing this 
legislation move forward, this bill has been significantly tailored to 
meet the urgent problems we may face.
  I will conclude by saying that this legislation will not protect 
wrongdoers or deprive those deserving of compensation. What it will do 
is make sure that what we have in place is a fair and effective way to 
resolve Y2K disputes, one that will help make sure we do not compound 
any problems caused by the Y2K bug, even larger problems caused by 
unnecessary litigation.
  This is good legislation, and I am optimistic that it will soon pass 
the Senate and that we will, thereby, have dealt with a problem which 
otherwise would be much larger than it should be.
  I thank the Chair, and I yield the floor.
  Mr. KERREY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. KERREY. Mr. President, I have come to the floor to make a brief 
statement about the Kosovo situation. I ask unanimous consent that the 
pending amendment be laid aside so I can speak as in morning business 
for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________