Clerk session vote number: 165
Description: A bill to establish certain procedures for civil actions brought for damages relating to the failure of any device or system to process or otherwise deal with the transition from the year 1999 to the year 2000, and for other purposes.
Bill summary: Y2K Act - Makes this Act: (1) applicable to any Y2K action (defined as a civil action commenced in Federal or State court, or an agency board of contract appeal proceeding, in which the plaintiff's alleged harm or injury arises from or is related to an actual or potential Y2K failure, or a claim or defense from or related to an actual or potential Y2K failure (i.e., failure by any device or system, or any software, firmware, or other set or collection of processing instructions to process,
calculate, compare, sequence, display, store, transmit, or receive year 2000 date-related data) occurring before January 1, 2003, or for a potential Y2K failure that could occur or has allegedly caused harm or injury before that date, including any appeal, remand, stay, or other judicial, administrative, or alternative dispute resolution (ADR) proceeding in such action; and (2) inapplicable to a claim for personal injury or wrongful death.
Requires that any written contractual term in a Y2K action, including a limitation or exclusion of liability, or a disclaimer of warranty, be strictly enforced unless its enforcement would manifestly and directly contravene applicable State law embodied in any statute in effect on January 1, 1999, specifically addressing that term (but where the contract is silent as to a particular issue, its interpretation shall be determined by applicable law in effect at the time the contract was executed). Allows enforcement of State law doctrines of unconscionability.
Preempts inconsistent State law, but nothing in this Act implicates, alters, or diminishes the ability of a State to defend itself against a claim based on sovereign immunity.
Specifies that nothing in this Act supersedes any provision of the Year 2000 Information and Readiness Disclosure Act.
Establishes an affirmative defense of "Y2K upset," i.e., an exceptional incident involving temporary noncompliance with applicable federally enforceable measurement or reporting requirements because of factors related to a Y2K failure that are beyond the reasonable control of the defendant charged with compliance, but excluding: (1) noncompliance with applicable enforceable requirements that constitute or would create an imminent threat to public health, safety, or the environment; (2) noncompliance with applicable federally enforceable measurement, monitoring, or reporting requirements that provide for the safety and soundness of the banking or monetary system, or for the integrity of the national securities markets, including the protection of depositors and investors; (3) noncompliance with such requirements to the extent caused by operational error or negligence; (4) lack of reasonable preventative maintenance;(5) lack of preparedness for a Y2K failure; or (6) noncompliance with the underlying federally enforceable requirements to which the applicable federally enforceable measurement, monitoring, or reporting requirement relates.
Requires a defendant who wishes to establish such affirmative defense to demonstrate that: (1) the defendant previously made a reasonable good faith effort to anticipate, prevent, and effectively remediate a potential Y2K failure; (2) a Y2K upset occurred as a result of a Y2K failure or other emergency directly related to a Y2K failure; (3) noncompliance with the applicable federally enforceable measurement, monitoring, or reporting requirement was unavoidable in the face of an emergency directly related to a Y2K failure and was necessary to prevent the disruption of critical functions or services that could result in the harm of life or property; (4) upon identification of noncompliance the defendant invoking the defense began immediate actions to correct any violation of federally enforceable measurement, monitoring, or reporting requirements; and (5) the defendant submitted notice to the appropriate Federal regulatory authority of a Y2K upset within 72 hours from the time that the defendant became aware of the upset.
Makes the Y2K upset defense a complete defense to the imposition of a penalty in any action brought as a result of noncompliance with federally enforceable measurement, monitoring, or reporting requirements for any defendant who establishes by a preponderance of the evidence that such conditions are met, but limits its length to 15 days unless granted specific relief by the appropriate regulatory authority. Sets penalties for fraudulent use of the defense. Sunsets the defense after June 30, 2000. Specifies that nothing herein shall affect the authority of a government entity to seek injunctive relief or require a defendant to correct a violation of a federally enforceable measurement, monitoring, or reporting requirement.
Sets forth provisions regarding consumer protection from Y2K failures. Prohibits any person who transacts business on matters directly or indirectly affecting residential mortgages from causing or permitting a foreclosure on any such mortgage against a consumer as a result of an actual Y2K failure that results in an inability to accurately or timely process any mortgage payment transaction. Requires a consumer who is affected by such inability to: (1) notify the servicer for the mortgage in writing and within seven business days from the time that the consumer becomes aware of the Y2K failure and the consumer's inability to accurately or timely fulfill his or her obligation to pay; and (2) provide to the servicer any available documentation regarding the failure.
Permits a prohibited action to resume if the consumer's mortgage obligation has not been paid and the servicer of the mortgage has not expressly and in writing granted the consumer an extension of time during which to pay the obligation, but only after the later of fours weeks after January 1, 2000, or four weeks after the required notification is made, with an exception.
Specifies that these provisions: (1) do not apply to transactions upon which a default has occurred before December 15, 1999, or with respect to which an imminent default was foreseeable before that date; and (2) delay but do not prevent the enforcement of financial obligations and do not otherwise affect or extinguish the obligation to pay.
Makes provisions of this Act inapplicable to any Y2K action in which the underlying claim arises under the securities laws.
(Sec. 5) Provides that in any Y2K action in which punitive damages are permitted by applicable law, the defendant shall not be liable for such damages unless the plaintiff proves by clear and convincing evidence that the applicable standard for awarding damages has been met. Provides that, subject to such evidentiary standard, punitive damages permitted under applicable law against a defendant who is sued as an individual and whose net worth does not exceed $500,000, or that is an unincorporated business, a partnership, corporation, association, or organization with fewer than 50 full-time employees, in a Y2K action may not exceed the lesser of three times the amount awarded for compensatory damages or $250,000. Makes this limitation inapplicable if the plaintiff establishes by clear and convincing evidence that the defendant acted with specific intent to injure the plaintiff. Prohibits the award of punitive damages in a Y2K action against a government entity.
(Sec. 6) Provides that a person against whom a final judgment is entered in a Y2K non-contract action shall be liable solely for the portion of the judgment that corresponds to the relative and proportional responsibility of that person, with exceptions. Directs the trier of fact, in determining the percentage of responsibility of any defendant, to determine that percentage as a percentage of the total fault of all persons, including the plaintiff, who caused or contributed to the total loss incurred by the plaintiff.
Directs the court, in any Y2K non-contract action, to instruct the jury to answer special interrogatories or, if there is no jury, the court to make findings with respect to each defendant, including defendants who have entered into settlements with the plaintiff or plaintiffs, concerning: (1) the percentage of responsibility, if any, of each defendant, measured as a percentage of the total fault of all persons who caused or contributed to the loss incurred by the plaintiff; and (2) if alleged by the plaintiff, whether the defendant (other than a defendant who has entered into a settlement agreement with the plaintiff) acted with specific intent to injure the plaintiff or knowingly committed fraud.
Requires that : (1) the responses to interrogatories or findings specify the total amount of damages that the plaintiff is entitled to recover and the percentage of responsibility of each defendant found to have caused or contributed to the loss incurred by the plaintiff; and (2) the trier of fact, in determining the percentage of responsibility, consider the nature of the conduct of each person found to have caused or contributed to the loss incurred by the plaintiff, and the nature and extent of the causal relationship between the conduct of each such person and the damages incurred by the plaintiff.
Specifies that the liability of a defendant in a Y2K action is joint and several if the trier of fact specifically determines that the defendant acted with specific intent to injure the plaintiff or knowingly committed fraud (i.e., the defendant made an untrue statement of a material fact with actual knowledge that the statement was false, omitted a fact necessary to make the statement not be misleading with actual knowledge that as a result of the omission the statement was false, and knew that the plaintiff was reasonably likely to rely on the false statement). States that reckless conduct by the defendant does not constitute either a specific intent to injure, or the knowing commission of fraud, by the defendant.
Sets forth special rules: (1) where the court determines that all or part of the share of the judgment against a defendant for compensatory damages is not collectable against that defendant; and (2) regarding a defendant's right of contribution, to the extent that such defendant is required to make an additional payment. Specifies that the other defendants are jointly and severally liable for the uncollectible share if the plaintiff is a consumer whose suit alleges or arises out of a defect in a consumer product, and is suing as an individual and not as part of a class action. Defines "class action" to mean: (1) a single lawsuit in which damages are sought on behalf of more than ten persons or prospective class members or in which one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated; or (2) any group of lawsuits filed in or pending in the same court in which damages are sought on behalf of more than ten persons, and the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose. Prohibits the disclosure to members of the jury of the standard for allocation of damages and the procedure for reallocation of uncollectible shares.
Directs that: (1) a defendant who settles a Y2K non-contract action at any time before final verdict or judgment be discharged from all claims for contribution brought by other persons; (2) the court, upon entry of the settlement, enter a bar order constituting the final discharge of all obligations to the plaintiff of the settling defendant arising out of the action, which shall bar all future claims for contribution arising out of the action by any person against the settling defendant and by the settling defendant against any person other than one whose liability has been extinguished by the settlement of the settling defendant; and (3) if a defendant enters into a settlement with the plaintiff before the final verdict or judgment, the verdict or judgment be reduced by the greater of an amount that corresponds to the percentage of responsibility of that defendant or the amount paid to the plaintiff by that defendant.
Authorizes a defendant who is jointly and severally liable for damages in any Y2K non-contract action to recover contribution from any other person who, if joined in the original action, would have been liable for the same damages. Directs that: (1) a claim for contribution be determined based on the percentage of responsibility of the claimant and of each person against whom a claim for contribution is made; and (2) an action for contribution in connection with a Y2K non-contract action be brought within six months after the entry of a final, nonappealable judgment in the Y2K action, with an exception.
Specifies that nothing herein preempts or supersedes any provision of State statutory law that: (1) limits the liability of a defendant in a Y2K action to a lesser amount than the amount determined under this section; or (2) otherwise affords a greater degree of protection from joint or several liability than is afforded by this section.
(Sec. 7) Requires a prospective plaintiff with a Y2K claim, before commencing a Y2K action (except one that seeks only injunctive relief), to send a written notice by certified mail (with either return receipt requested or other means of verification that the notice was sent) to each prospective defendant, with specific and detailed information about: (1) the manifestations of any material defect alleged to have caused harm or loss; (2) the harm or loss allegedly suffered by the prospective plaintiff; (3) how the prospective plaintiff would like the prospective defendant to remedy the problem; (4) the basis upon which the prospective plaintiff seeks that remedy; and (5) the name, title, address, and telephone number of any individual who has authority to negotiate a resolution of the dispute on behalf of the prospective plaintiff. Sets forth provisions regarding persons to whom notice shall be sent.
Requires each prospective defendant, within 30 days after receipt of notice, to send by certified mail with return receipt requested to each prospective plaintiff a written statement acknowledging receipt, describing the actions it has taken or will take to address the problem identified, and stating whether the prospective defendant is willing to engage in ADR. Makes such statement inadmissible in evidence in any proceeding to prove liability for, or the invalidity of, a claim or its amount, or otherwise as evidence of conduct or statements made in compromise negotiations. Presumes notice to be received seven days after it was sent. Allows a prospective defendant receiving more than once notice to give priority to notices regarding a product or service that involves a health or safety related Y2K failure.
Sets forth provisions regarding failure to respond, failure to provide notice, and the effect of contractual or statutory waiting periods. Provides that State law controls regarding the use of ADR. Makes requirements of this section applicable only to named plaintiffs in a Y2K class action.
(Sec. 8) Applies this section exclusively to Y2K actions and, to the extent that this section requires additional information to be contained in or attached to pleadings, nothing herein is intended to amend or supersede applicable rules of Federal or State civil procedure.
Requires that there be filed with the complaint in any Y2K action in which: (1) damages are requested, a statement of specific information as to the nature and amount of each element of damages and the factual basis for the damages calculation; (2) the plaintiff alleges that there is a material defect in a product or service, a statement of specific information regarding the manifestations of the material defects and the facts supporting a conclusion that the defects are material; and (3) a claim is asserted on which the plaintiff may prevail only on proof that the defendant acted with a particular state of mind, with respect to each element of that claim, a statement of the facts giving rise to a strong inference that the defendant acted with the required state of mind.
(Sec. 9) Directs that damages awarded in any Y2K action exclude compensation for damages that the plaintiff could reasonably have avoided in light of any disclosure or other information of which the plaintiff was, or reasonably should have been, aware, including information made available by the defendant to purchasers or users of the defendant's product or services concerning means of remedying or avoiding the Y2K failure involved in the action.
Specifies that: (1) the duty imposed by this section is in addition to any duty to mitigate imposed by State law; and (2) this section does not apply to damages suffered by reason of the plaintiff's justifiable reliance upon an affirmative material misrepresentation by the defendant, made by the defendant with actual knowledge of its falsity, concerning the potential for Y2K failure of the device or system used or sold by the defendant that experienced the Y2K failure alleged to have caused the plaintiff's harm.
(Sec. 10) Mandates that, in any Y2K action for breach or repudiation of contract, the applicability of the doctrines of impossibility and commercial impracticability be determined by the law in existence on January 1, 1999.
(Sec. 11) Prohibits any party in a Y2K action for breach or repudiation of contract from claiming, or being awarded, any category of damages unless such damages are allowed: (1) by the express terms of the contract; or (2) if the contract is silent on such damages, by operation of State law at the time the contract was effective or by operation of Federal law.
(Sec. 12) Bars recovery of damages for economic loss to a party to a Y2K action making a tort claim (other than a claim of intentional tort arising independent of a contract) unless: (1) the recovery of such losses is provided for in a contract to which the party seeking to recover is a party; or (2) such losses result directly from damage to tangible personal or real property caused by the Y2K failure (other than damage to property that is the subject of the contract between the parties to the Y2K action or, if there is no contract between the parties, other than damage caused only to the property that experienced the Y2K failure), and such damages are permitted under applicable Federal or State law.
(Sec. 13) Provides that, in a Y2K action other than a claim for breach or repudiation of contract in which the defendant's actual or constructive awareness of an actual or potential Y2K failure is an element of the claim, the defendant is not liable unless the plaintiff establishes that element of the claim by the standard of evidence under applicable State law in effect before January 1, 1999.
Provides that, with respect to any Y2K action for money damages in which the defendant is not the manufacturer, seller, or distributor of a product, or the provider of a service, that suffers or causes the Y2K failure at issue, the plaintiff is not in substantial privity with the defendant, and the defendant's actual or constructive awareness of an actual or potential Y2K failure is an element of the claim under applicable law, the defendant shall not be liable unless the plaintiff, in addition to establishing all other requisite elements of the claim, proves, by the standard of evidence under applicable State law in effect before January 1, 1999, that the defendant actually knew, or recklessly disregarded a known and substantial risk, that such failure would occur.
Specifies that: (1) the fact that a Y2K failure occurred in an entity, facility, system, product, or component that was sold, leased, rented, or otherwise within the control of the party against whom a claim is asserted in a Y2K action shall not constitute the sole basis for recovery of damages in that action; and (2) a claim in a Y2K action for breach or repudiation of contract for such a failure is governed by the terms of the contract.
Makes the protections for the exchanges of information provided in the Year 2000 Information and Readiness Disclosure Act applicable to any Y2K action.
(Sec. 14) Authorizes any U.S. district court in which a Y2K action is pending to appoint a special master or magistrate judge to hear the matter and to make findings of fact and conclusions of law in accordance with rule 53 of the Federal Rules of Civil Procedure.
(Sec. 15) Allows a Y2K action involving a claim that a product or service is defective to be maintained as a class action in Federal or State court as to that claim only if: (1) it satisfies all other prerequisites established by applicable Federal or State law, including applicable rules of civil procedure; and (2) the court finds that the defect in a product or service as alleged would be a material defect for the majority of the class members.
Directs the court in any Y2K action that is maintained as a class action, in addition to any other notice required by applicable Federal or State law, to direct notice of the action to each class member, including: (1) a concise, clear description of the nature of the action; and (2) the jurisdiction where the case is pending, and the fee arrangements with class counsel, including the hourly fee charged, or, if it is a contingency fee, the percentage of the final award which will be paid, including an estimate of the total amount that would be paid if the requested damages were to be granted.
Grants the U.S. district courts original jurisdiction of any Y2K action brought as a class action, except where: (1) a substantial majority of the members of the proposed plaintiff class are citizens of a single State, the primary defendants are citizens of that State, and the claims asserted will be governed primarily by the law of that State;(2) the primary defendants are States, State officials, or other governmental entities against whom the U.S. district court may be foreclosed from ordering relief; (3) the plaintiff class does not seek an award of punitive damages and the amount in controversy is less than $10 million (exclusive of interest and costs), computed on the basis of all claims to be determined in the action; or (4) there are less than 100 members of the proposed plaintiff class.
Requires a U.S. district court to dismiss, or if after removal, strike the class allegations and remand any Y2K action brought or removed under this section as a class action if: (1) the action is subject to the jurisdiction of the court solely under this section; and (2) the court determines that the action may not proceed as a class action based on a failure to satisfy the conditions of rule 23 of the Federal Rules of Civil Procedure. Sets forth provisions regarding filing an amended class action, tolling of the period of limitations, and dismissal without prejudice.
(Sec. 16) Allows: (1) States to provide stricter limits on damages and liabilities than are provided in this Act; and (2) any party to a Y2K action in a State court in a State that has not adopted a rule of evidence substantially similar to rule 704 of the Federal Rules of Evidence to introduce in such action evidence that would be admissible if rule 704 applied in that jurisdiction.
(Sec. 18) Directs each executive agency that has the authority to impose civil penalties on small business concerns to: (1) establish a point of contact within the agency to act as a liaison between the agency and such concerns regarding problems arising out of Y2K failures and compliance with Federal rules or regulations; and (2) publish the name and phone number of the point of contact for the agency in the Federal Register.
Prohibits such an agency from imposing any civil money penalty on a small business concern for a "first-time violation," defined as a violation by a small business concern of a Federal rule or regulation (other than one relating to the safety and soundness of the banking or monetary system or for the integrity of the National Securities market, including protection of depositors and investors) caused by a Y2K failure if that rule or regulation had not been violated by that concern within the preceding three years.
Requires an agency to provide a waiver of civil money penalties for a first-time violation, provided that a small business concern demonstrates, and the agency determines, that: (1) the small business concern previously made a reasonable good faith effort to anticipate, prevent, and effectively remediate a potential Y2K failure; (2) a first-time violation occurred as a result of the Y2K system failure of the concern or other entity, which affected the concern's ability to comply with a Federal rule or regulation; (3) the first-time violation was unavoidable in the face of a Y2K system failure or occurred as a result of efforts to prevent the disruption of critical functions or services that could result in harm to life or property; (4) upon identification of a first-time violation, the concern initiated reasonable and prompt measures to correct the violation; and (5) the concern submitted notice to the appropriate agency of the first-time violation within a reasonable time not to exceed five business days from the time that the concern became aware that a first-time violation had occurred.
Allows an agency to impose civil money penalties authorized under Federal law on a small business concern for a first-time violation if: (1) the concern's failure to comply with Federal rules or regulations resulted in actual harm, or constitutes or creates an imminent threat to public health, safety, or the environment; or (2) the concern fails to correct the violation not later than one month after initial notification to the agency.
Makes this section inapplicable to first-time violations caused by a Y2K failure occurring after December 31, 2000.
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Bill titles: To establish certain procedures for civil actions brought for damages relating to the failure of any device or system to process or otherwise deal with the transition from the year 1999 to the year 2000, and for other purposes.
Links for more info on the vote: congress.gov