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S. 1139 (is) To amend title 49, United States Code, relating to civil penalties for unruly passengers of air carriers and to provide for the protection of employees providing air safety information, and for other purposes. [Introduced in Senate] %%Filenam...


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                                                       Calendar No. 125

106th CONGRESS

  1st Session

                                S. 1138



_______________________________________________________________________

                                 A BILL

 To regulate interstate commerce by making provision for dealing with 
losses arising from Year 2000 Problem-related failures that may disrupt 
communications, intermodal transportation, and other matters affecting 
                          interstate commerce.

_______________________________________________________________________

                              May 27, 1999

            Read the second time and placed on the calendar





                                                       Calendar No. 125
106th CONGRESS
  1st Session
                                S. 1138

 To regulate interstate commerce by making provision for dealing with 
losses arising from Year 2000 Problem-related failures that may disrupt 
communications, intermodal transportation, and other matters affecting 
                          interstate commerce.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 26, 1999

     Mr. McCain (for himself, Mr. Dodd, Mr. Wyden, Mr. Hatch, Mrs. 
 Feinstein, Mr. Gorton, Mr. Bennett, Mr. Lott, Mr. Abraham, Mr. Frist, 
   Mr. Burns, Mr. Santorum, Mr. Smith of Oregon, and Mr. Lieberman) 
      introduced the following bill; which was read the first time

                              May 27, 1999

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
 To regulate interstate commerce by making provision for dealing with 
losses arising from Year 2000 Problem-related failures that may disrupt 
communications, intermodal transportation, and other matters affecting 
                          interstate commerce.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF SECTIONS.

    (a) Short title.--This Act may be cited as the ``Y2K Act''.
    (b) Table of Sections.--The table of sections for this Act is as 
follows:

Sec. 1. Short title; table of sections.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Application of Act.
Sec. 5. Punitive damages limitations.
Sec. 6. Proportionate liability.
Sec. 7. Pre-litigation notice.
Sec. 8. Pleading requirements.
Sec. 9. Duty to mitigate.
Sec. 10. Application of existing impossibility or commercial 
                            impracticability doctrines.
Sec. 11. Damages limitation by contract.
Sec. 12. Damages in tort claims.
Sec. 13. State of mind; bystander liability; control.
Sec. 14. Appointment of special masters or magistrate judges for Y2K 
                            actions.
Sec. 15. Y2K actions as class actions.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds that:
            (1)(A) Many information technology systems, devices and 
        programs are not capable of recognizing certain dates in 1999 
        and after December 31, 1999, and will read dates in the year 
        2000 and thereafter as if those dates represent the year 1900 
        or thereafter or will fail to process dates after December 31, 
        1999.
            (B) If not corrected, the problem described in subparagraph 
        (A) and resulting failures could incapacitate systems that are 
        essential to the functioning of markets, commerce, consumer 
        products, utilities, Government, and safety and defense 
        systems, in the United States and throughout the world.
            (2) It is in the national interest that producers and users 
        of technology products concentrate their attention and 
        resources in the time remaining before January 1, 2000, on 
        assessing, fixing, testing, and developing contingency plans to 
        address any and all outstanding year 2000 computer date-change 
        problems, so as to minimize possible disruptions associated 
        with computer failures.
            (3)(A) Because year 2000 computer date-change problems may 
        affect virtually all businesses and others users of technology 
        products to some degree, there is a substantial likelihood that 
        actual or potential year 2000 failures will prompt a 
        significant volume of litigation, much of it insubstantial
            (B) The litigation described in subparagraph (A) would have 
        a range of undesirable effects, including the following:
                    (i) It would threaten to waste technical and 
                financial resources that are better devoted to curing 
                year 2000 computer date-change problems and ensuring 
                that systems remain or become operational.
                    (ii) It could threaten the network of valued and 
                trusted business and customer relationships that are 
important to the effective functioning of the national economy.
                    (iii) It would strain the Nation's legal system, 
                causing particular problems for the small businesses 
                and individuals who already find that system 
                inaccessible because of its complexity and expense.
                    (iv) The delays, expense, uncertainties, loss of 
                control, adverse publicity, and animosities that 
                frequently accompany litigation of business disputes 
                could exacerbate the difficulties associated with the 
                date change and work against the successful resolution 
                of those difficulties.
            (4) It is appropriate for the Congress to enact legislation 
        to assure that Y2K problems do not unnecessarily disrupt 
        interstate commerce or create unnecessary caseloads in Federal 
        courts and to provide initiatives to help businesses prepare 
        and be in a position to withstand the potentially devastating 
        economic impact of Y2K.
            (5) Resorting to the legal system for resolution of Y2K 
        problems is not feasible for many businesses and individuals 
        who already find the legal system inaccessible, particularly 
        small businesses and individuals who already find the legal 
        system inaccessible, because of its complexity and expense.
            (6) The delays, expense, uncertainties, loss of control, 
        adverse publicity, and animosities that frequently accompany 
        litigation of business disputes can only exacerbate the 
        difficulties associated with the Y2K date change, and work 
        against the successful resolution of those difficulties.
            (7) Concern about the potential for liability--in 
        particular, concern about the substantial litigation expense 
        associated with defending against even the most insubstantial 
        lawsuits--is prompting many persons and businesses with 
        technical expertise to avoid projects aimed at curing year 2000 
        computer date-change problems.
            (8) A proliferation of frivolous Y2K lawsuits by 
        opportunistic parties may further limit access to courts by 
        straining the resources of the legal system and depriving 
        deserving parties of their legitimate rights to relief.
            (9) Congress encourages businesses to approach their Y2K 
        disputes responsibly, and to avoid unnecessary, time-consuming 
        and costly litigation about Y2K failures, particularly those 
        that are not material. Congress supports good faith 
        negotiations between parties when there is a dispute over a Y2K 
        problem, and, if necessary, urges the parties to enter into 
        voluntary, non-binding mediation rather than litigation.
    (b) Purposes.--Based upon the power of the Congress under Article 
I, Section 8, Clause 3 of the Constitution of the United States, the 
purposes of this Act are--
            (1) to establish uniform legal standards that give all 
        businesses and users of technology products reasonable 
        incentives to solve Y2K computer date-change problems before 
        they develop;
            (2) to encourage continued Y2K remediation and testing 
        efforts by providers, suppliers, customers, and other 
        contracting partners;
            (3) to encourage private and public parties alike to 
        resolve Y2K disputes by alternative dispute mechanisms in order 
        to avoid costly and time-consuming litigation, to initiate 
        those mechanisms as early as possible, and to encourage the 
        prompt identification and correction of Y2K problems; and
            (4) to lessen the burdens on interstate commerce by 
        discouraging insubstantial lawsuits while preserving the 
        ability of individuals and businesses that have suffered real 
        injury to obtain complete relief.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Y2K action.--The term ``Y2K action''--
                    (A) means a civil action commenced in any Federal 
                or State court, or any agency board of contract appeal 
                proceeding, in which the plaintiff's alleged harm or 
                injury resulted from a Y2K failure;
                    (B) includes a civil action commenced in any 
                Federal or State court by a governmental entity when 
                acting in a commercial or contracting capacity; but
                    (C) does not include an action brought by a 
                governmental entity acting in a regulatory, 
                supervisory, or enforcement capacity.
            (2) Y2K failure.--The term ``Y2K failure'' means failure by 
        any 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, including failures--
                    (A) to deal with or account for transitions or 
                comparisons from, into, and between the years 1999 and 
                2000 accurately;
                    (B) to recognize or accurately to process any 
                specific date in 1999, 2000, or 2001; or
                    (C) accurately to account for the year 2000's 
                status as a leap year, including recognition and 
                processing of the correct date on February 29, 2000.
            (3) Government entity.--The term ``government entity'' 
        means an agency, instrumentality, or other entity of Federal, 
        State, or local government (including multijurisdictional 
        agencies, instrumentalities, and entities).
            (4) Material defect.--The term ``material defect'' means a 
        defect in any item, whether tangible or intangible, or in the 
        provision of a service, that substantially prevents the item or 
        service from operating or functioning as designed or according 
        to its specifications. The term ``material defect'' does not 
        include a defect that--
                    (A) has an insignificant or de minimis effect on 
                the operation or functioning of an item or computer 
                program;
                    (B) affects only a component of an item or program 
                that, as a whole, substantially operates or functions 
                as designed; or
                    (C) has an insignificant or de minimis effect on 
                the efficacy of the service provided.
            (5) Personal injury.--The term ``personal injury'' means 
        physical injury to a natural person, including--
                    (A) death as a result of a physical injury; and
                    (B) mental suffering, emotional distress, or 
                similar injuries suffered by that person in connection 
                with a physical injury.
            (6) State.--The term ``State'' means any State of the 
        United States, the District of Columbia, Commonwealth of Puerto 
        Rico, the Northern Mariana Islands, the United States Virgin 
        Islands, Guam, American Samoa, and any other territory or 
        possession of the United States, and any political subdivision 
        thereof.
            (7) Contract.--The term ``contract'' means a contract, 
        tariff, license, or warranty.
            (8) Alternative dispute resolution.--The term ``alternative 
        dispute resolution'' means any process or proceeding, other 
        than adjudication by a court or in an administrative 
        proceeding, to assist in the resolution of issues in 
        controversy, through processes such as early neutral 
        evaluation, mediation, minitrial, and arbitration.

SEC. 4. APPLICATION OF ACT.

    (a) General Rule.--This Act applies to any Y2K action brought in a 
State or Federal court after January 1, 1999, for a Y2K failure 
occurring before January 1, 2003, including any appeal, remand, stay, 
or other judicial, administrative, or alternative dispute resolution 
proceeding in such an action.
    (b) No New Cause of Action Created.--Nothing in this Act creates a 
new cause of action, and, except as otherwise explicitly provided in 
this Act, nothing in this Act expands any liability otherwise imposed 
or limits any defense otherwise available under Federal or State law.
    (c) Claims for Personal Injury or Wrongful Death Excluded.--This 
Act does not apply to a claim for personal injury or for wrongful 
death.
    (d) Contract Preservation.--
            (1) In general.--Subject to paragraph (2), in any Y2K 
        action any written contractual term, including a limitation or 
        an exclusion of liability, or a disclaimer of warranty, shall 
        be strictly enforced unless the enforcement of that term would 
        manifestly and directly contravene applicable State law 
        embodied in any statute in effect on January 1, 1999, 
        specifically addressing that term.
            (2) Interpretation of contract.--In any Y2K action in which 
        a contract to which paragraph (1) applies is silent as to a 
        particular issue, the interpretation of the contract as to that 
        issue shall be determined by applicable law in effect at the 
        time the contract was executed.
    (e) Preemption of State Law.--This Act supersedes State law to the 
extent that it establishes a rule of law applicable to a Y2K action 
that is inconsistent with State law, but nothing in this Act 
implicates, alters, or diminishes the ability of a State to defend 
itself against any claim on the basis of sovereign immunity.
    (f) Application With Year 2000 Information and Readiness Disclosure 
Act.--Nothing in this Act supersedes any provision of the Year 2000 
Information and Readiness Disclosure Act.

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