§ 6612. — State of mind; bystander liability; control.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC6612]
TITLE 15--COMMERCE AND TRADE
CHAPTER 92--YEAR 2000 COMPUTER DATE CHANGE
Sec. 6612. State of mind; bystander liability; control
(a) Defendant's state of mind
In a Y2K action other than a claim for breach or repudiation of
contract, and 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 on the day before January 1, 1999.
(b) Limitation on bystander liability for Y2K failures
(1) In general
With respect to any Y2K action for money damages in which--
(A) 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;
(B) the plaintiff is not in substantial privity with the
defendant; and
(C) 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 on
the day before January 1, 1999, that the defendant actually knew, or
recklessly disregarded a known and substantial risk, that such
failure would occur.
(2) Substantial privity
For purposes of paragraph (1)(B), a plaintiff and a defendant
are in substantial privity when, in a Y2K action arising out of the
performance of professional services, the plaintiff and the
defendant either have contractual relations with one another or the
plaintiff is a person who, prior to the defendant's performance of
such services, was specifically identified to and acknowledged by
the defendant as a person for whose special benefit the services
were being performed.
(3) Certain claims excluded
For purposes of paragraph (1)(C), claims in which the
defendant's actual or constructive awareness of an actual or
potential Y2K failure is an element of the claim under applicable
law do not include claims for negligence but do include claims such
as fraud, constructive fraud, breach of fiduciary duty, negligent
misrepresentation, and interference with contract or economic
advantage.
(c) Control not determinative of liability
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. A claim in a Y2K action for breach or repudiation of
contract for such a failure is governed by the terms of the contract.
(d) Protections of the Year 2000 Information and Readiness Disclosure
Act apply
The protections for the exchanges of information provided by section
4 of the Year 2000 Information and Readiness Disclosure Act (Public Law
105-271) shall apply to any Y2K action.
(Pub. L. 106-37, Sec. 13, July 20, 1999, 113 Stat. 200.)
References in Text
Section 4 of the Year 2000 Information and Readiness Disclosure Act,
referred to in subsec. (d), is section 4 of Pub. L. 105-271, which is
set out in a note under section 1 of this title.
Section Referred to in Other Sections
This section is referred to in section 6603 of this title.
