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| [ Introduced ] | [ Senate Amendment 002 ] |
91_SB0230sam001
LRB9102482DJcdam01
1 AMENDMENT TO SENATE BILL 230
2 AMENDMENT NO. . Amend Senate Bill 230 by replacing
3 the title with the following:
4 "AN ACT concerning year 2000 failure."; and
5 by replacing everything after the enacting clause with the
6 following:
7 "Section 1. Short title. This Act may be cited as the
8 Year 2000 Jobs Protection Act.
9 Section 5. Definitions. In this Act:
10 "Computer" means an electronic, magnetic, optical,
11 electrochemical, or other high-speed data processing device
12 that performs logical, arithmetic, or memory functions by the
13 manipulations of electronic or magnetic impulses and includes
14 all input, output, processing, storage, or communication
15 facilities that are connected or related to the device. The
16 term includes a component of a computer, such as a
17 microprocessor, embedded chip, memory chip, storage device,
18 or input/output device.
19 "Computer date statement" means a statement material to a
20 transaction made by a person about a computer product
21 manufactured or sold by the person or about a computer
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1 service provided or sold by the person regarding:
2 (1) the present or future ability of the product or
3 service to process correctly dates of calendar year 1999
4 or subsequent years; or
5 (2) the compatibility of the product or service
6 with other computer products, computer services, or
7 electronic data in any form, with respect to the
8 processing of dates of calendar year 1999 or subsequent
9 years.
10 "Computer network" means the interconnection of 2 or more
11 computers or computer systems by satellite, microwave, line,
12 or other communication medium with the capability to transmit
13 information among the computers.
14 "Computer product" includes a computer, a computer
15 network, a computer program, computer software, a computer
16 system, or any component of any of those items, or a product
17 that includes a component of any of those items as a
18 component of the product.
19 "Computer program" means an ordered set of data
20 representing coded instructions or statements that, when
21 executed by a computer, cause the computer to process data or
22 perform specific functions.
23 "Computer service" means the product of the use of a
24 computer, the information stored in the computer, or the
25 personnel supporting the computer, including computer time,
26 data processing, and storage functions.
27 "Computer software" means a set of computer programs,
28 procedures, and associated documentation related to the
29 operation of a computer, computer system, or computer
30 network.
31 "Computer system" means any combination of a computer or
32 computer network with the documentation, computer software,
33 or physical facilities supporting the computer or computer
34 network.
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1 "Economic loss" means any damages other than damages
2 arising out of personal injury, wrongful death, or damage to
3 tangible property. Economic loss includes, but is not
4 limited to, damages for lost profits or sales, for business
5 interruption, for losses indirectly suffered as a result of
6 the defendant's wrongful act or omission, for losses that
7 arise because of the claims of third parties, for losses that
8 must be pleaded as special damages, and for items defined as
9 consequential damages in the Uniform Commercial Code or an
10 analogous state commercial law.
11 "Year 2000 action" means any civil action of any kind
12 brought in any adjudicatory forum in which (i) a year 2000
13 claim is asserted or (ii) any claim or defense is related,
14 directly or indirectly, to an actual or potential year 2000
15 failure.
16 "Year 2000 claim" means any claim or cause of action of
17 any kind, whether asserted by way of claim, counterclaim,
18 cross-claim, third-party claim, or otherwise, in which the
19 plaintiff's alleged loss or harm resulted, directly or
20 indirectly, from an actual or potential year 2000 failure.
21 "Year 2000 failure" means any failure by any device or
22 system (including, without limitation, any computer system
23 and any microchip or integrated circuit embedded in another
24 device or product), or any software, firmware, or other set
25 or collection of processing instructions, however
26 constructed, in processing, calculating, comparing,
27 sequencing, displaying, storing, transmitting, or receiving
28 date-related data, including, without limitation, (i) failure
29 in accurately dealing with or failure in accurately
30 accounting for transitions or comparisons from, into, and
31 between the 20th and 21st centuries, or during the years 1999
32 and 2000, (ii) failure to recognize or accurately process any
33 specific date, and (iii) failure accurately to account for
34 the year 2000's status as a leap year.
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1 Section 10. Notice of year 2000 failure.
2 (a) Except as provided in subsection (b), as a
3 prerequisite to commencing an action against a person for
4 harm caused by a year 2000 failure, the claimant must give
5 written notice to the person at least 90 days before
6 commencing the action. The written notice must identify the
7 claimant and describe in reasonable detail (i) any symptoms
8 of material defect alleged to have caused a year 2000
9 failure, (ii) the alleged harm caused by the failure, and
10 (iii) the relief or action sought by the person giving
11 notice.
12 (b) If giving at least 90 days written notice is
13 rendered impossible by the necessity to commence the action
14 before the expiration of the period of limitations or repose,
15 or if the claimant's claim is asserted against a person by
16 way of a counterclaim or cross-claim, the claimant must give
17 the written notice described in subsection (a) to the person
18 within 30 days after the date the action, counterclaim, or
19 cross-claim was served on the person. The court may not
20 enter a judgment against the person on the claimant's claim
21 for at least 90 days following the date the person received
22 the written notice. The claimant may not request discovery
23 against the person for at least 90 days following the date
24 the person received the written notice.
25 (c) If the claimant fails to give written notice
26 required by subsection (a) or (b), the court, on motion of
27 the party from whom the claimant seeks damages, shall dismiss
28 the claimant's action against that party.
29 (d) If a prospective defendant fails to respond to a
30 notice provided pursuant to subsection (a) within the 30 days
31 specified in subsection (b) or does not describe the action,
32 if any, that the prospective defendant will take to address
33 the problem identified by the prospective plaintiff, the
34 90-day waiting period identified in subsection (a) will
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1 terminate at the expiration of the 30-day period as to that
2 prospective defendant, and the prospective plaintiff may
3 commence its action against that prospective defendant
4 immediately.
5 Section 15. Inspection. Within 60 days after the date a
6 person receives a written notice under Section 10, the person
7 may request in writing to inspect the computer product or the
8 product of the computer service, if it is subject to the
9 claimant's control or supervision, to assess the nature,
10 scope, and consequences of the year 2000 failure. The
11 inspection must be conducted in a reasonable manner at a
12 reasonable time and place.
13 Section 20. Offer to remedy. During the period of at
14 least 90 days beginning on the date a person receives a
15 written notice under Section 10, the person may offer to
16 remedy the year 2000 failure that is the subject of the
17 claimant's claim, including any remedial measure to correct
18 the year 2000 failure or to mitigate harm caused by the year
19 2000 failure.
20 Section 25. Effect of inspection or offer to remedy.
21 (a) The inspection, and the results of the inspection,
22 as described in Section 15, may be offered as evidence or
23 admitted into evidence.
24 (b) An offer to remedy a year 2000 failure, and the
25 remedy itself, as described in Section 20, may be offered as
26 evidence or admitted into evidence.
27 (c) A claimant's decision to accept or to reject an
28 offer to remedy a year 2000 failure is not an election of
29 remedies and does not affect the claimant's ability to
30 maintain the action unless the claimant agrees otherwise in
31 writing.
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1 Section 30. Action for year 2000 failure.
2 (a) A person must bring an action for harm caused by a
3 year 2000 failure no later than 2 years from the earlier of:
4 (1) the date the person discovered that the
5 computer product or computer service processed dates
6 incorrectly or was incompatible with a product, service,
7 or electronic data with respect to processing dates; or
8 (2) the date the year 2000 failure first caused the
9 person's harm.
10 (b) This Section does not extend the limitations period
11 within which an action for harm caused by a year 2000 failure
12 may be commenced under any other law.
13 Section 35. Contract preservation. In any year 2000
14 action, all written contractual terms, including limitations
15 or exclusions of liability or disclaimers of warranty, shall
16 be enforceable. If the contract is silent or ambiguous as to
17 a particular issue, however, the interpretation of the
18 contract as to that issue shall be determined by applicable
19 law in force at the time that the contract was entered into,
20 provided that the court does not determine that the contract
21 as a whole is unenforceable.
22 Section 40. Defenses.
23 (a) Reasonable efforts. In any year 2000 action in which
24 breach of contract is alleged, in addition to any other
25 rights provided by applicable law, the party against whom the
26 claim of breach of contract is asserted shall be allowed to
27 offer evidence that its implementation of the contract, or
28 its efforts to implement the contract, were reasonable in
29 light of the circumstances for the purpose of limiting or
30 eliminating the defendant's liability.
31 (b) Impossibility or commercial impracticability. In any
32 year 2000 action in which breach of contract is alleged,
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1 applicability of the doctrines of impossibility and
2 commercial impracticability shall be determined by applicable
3 law in effect on January 1, 1999, and nothing in this Act
4 shall be construed as limiting or impairing a party's right
5 to assert defenses based on those doctrines.
6 Section 45. Affirmative defense; notice and repair.
7 (a) It is an affirmative defense to liability for harm
8 caused by a year 2000 failure if the court determines that:
9 (1) the defendant timely notified buyers of the
10 computer product or computer service that the product or
11 service may manifest the year 2000 failure; and
12 (2) the defendant offered to correct the year 2000
13 failure in the product or service (such as an offer to
14 repair, replace, upgrade, or update the product or
15 service or the component that would manifest the year
16 2000 failure or to provide a substitute product or
17 service) at no additional charge by the defendant other
18 than reasonable and customary charges for delivering the
19 product or items needed to make the correction; and
20 (3) the offered correction would have avoided the
21 harm caused by the year 2000 failure.
22 (b) The notice issued under subsection (a) must:
23 (1) identify the product or service supplied by the
24 defendant that manifests or may manifest the year 2000
25 failure;
26 (2) explain how the buyer may obtain a correction
27 to the product or service; and
28 (3) state the cost the buyer must pay to the
29 defendant to obtain the correction.
30 (c) The notice issued under subsection (a) is timely if
31 it is sent or published before the longer of the following
32 periods:
33 (1) three months before the date the claimant
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1 suffers harm from the year 2000 failure; or
2 (2) the time needed to order, deliver, and install
3 the correction to the product or service before the
4 claimant suffers harm from the year 2000 failure.
5 (d) A defendant satisfies the requirement of subdivision
6 (a)(1) if the defendant:
7 (1) timely delivers the notice to the claimant;
8 (2) timely sends the notice to all buyers known to
9 the defendant, such as registered buyers, by mail,
10 courier, electronic mail, or telephonic document transfer
11 to the last address or telecopier number provided by the
12 buyer to the defendant; or
13 (3) timely publishes an advertisement that:
14 (A) discloses a toll-free telephone number,
15 and, if the defendant has an Internet site, the
16 address of the defendant's internet site, through
17 which consumers of the defendant's product or
18 service may obtain the information described in
19 subsection (b); and
20 (B) is published in at least 2 newspapers of
21 general, statewide circulation or is published in at
22 least one newspaper of general circulation in each of the
23 regions in this State where the defendant sold the
24 product or service.
25 Section 50. Affirmative defense; reliance.
26 (a) In an action for fraud, misrepresentation,
27 disparagement, libel, or other similar action based on the
28 alleged falsity or misleading character of a computer date
29 statement or an express warranty, it is an affirmative
30 defense to liability for harm caused by a year 2000 failure
31 if the court determines that the defendant:
32 (1) reasonably relied on the computer date
33 statement or express warranty of an independent, upstream
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1 vendor or supplier of the computer product or computer
2 service that the product or service would not manifest
3 the year 2000 failure; and
4 (2) the defendant did not have actual knowledge
5 that the statement or warranty was not true.
6 (b) In this Section, a statement that a computer product
7 or computer service is "Year 2000 Compliant", complies with a
8 computer date standard established by a State or federal
9 regulatory agency or by a national or international service
10 organization, or a similar representation constitutes a
11 computer date statement.
12 Section 55. Affirmative defense; compliance testing.
13 (a) It is an affirmative defense to liability for harm
14 allegedly caused by a year 2000 failure if the court
15 determines that before the claimant suffered harm as a result
16 of the year 2000 failure:
17 (1) the defendant examined the product or service
18 to determine whether it would manifest a year 2000
19 failure; and
20 (2) if the product or service manifested a year
21 2000 failure, the defendant corrected the product or
22 service or the component of the product or service
23 identified in the examination as manifesting the year
24 2000 failure (such as by repairing, replacing, upgrading,
25 or updating the produce or service or providing a
26 substitute product or service); and
27 (3) the defendant tested the product or service or
28 the component of the product or service after necessary
29 corrections, to determine whether it would manifest the
30 year 2000 failure, and the product or service
31 successfully passed the test; and
32 (4) the product or service that allegedly harmed
33 the claimant was materially the same as the product or
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1 service that successfully passed the year 2000 failure
2 test or examination.
3 (b) A defendant performs any task described in
4 subdivisions (a) (1) through (a) (3) if the task is performed
5 by the defendant, by an agent of the defendant, or by an
6 independent contractor hired by the defendant to perform the
7 task.
8 Section 60. Offset.
9 (a) If the defendant provided a remedy for the year 2000
10 failure, as described in Section 20, the court shall deduct
11 from the damages recoverable by the claimant an amount equal
12 to the value the claimant received from the remedy.
13 (b) If the claimant unreasonably refused the defendant's
14 offer to remedy the year 2000 failure, the court shall deduct
15 from the damages recoverable by the claimant an amount equal
16 to the value the claimant would have received from the
17 remedy.
18 (c) The defendant bears the burden of proving by a
19 preponderance of the evidence the value the claimant received
20 or would have received from the remedy.
21 Section 65. Duty to mitigate damages. In an action to
22 recover damages for harm caused by a year 2000 failure, a
23 claimant may not recover damages for harm the claimant, in
24 the exercise of reasonable care, could have avoided or
25 mitigated.
26 Section 70. Punitive damages.
27 (a) In any year 2000 action in which punitive damages may
28 be awarded under applicable law, except as to a claim for
29 personal injury or wrongful death, the defendant shall not be
30 liable for punitive damages unless the plaintiff proves by
31 clear and convincing evidence that the defendant acted with
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1 fraud or malice with respect to the plaintiff.
2 (b) In any year 2000 action, except with respect to a
3 claim for personal injury or wrongful death, if a defendant
4 is found liable for punitive damages, the amount of punitive
5 damages that may be awarded to a claimant may not exceed the
6 greater of:
7 (1) 3 times the amount awarded to the claimant for
8 actual damages; or
9 (2) $250,000.
10 (c) Notwithstanding subsection (b), in any year 2000
11 action, except with respect to a claim for personal injury or
12 wrongful death, if the defendant is found liable for punitive
13 damages and the defendant is an individual whose net worth
14 does not exceed $500,000, is an owner of an unincorporated
15 business that has fewer than 25 full-time employees, or is
16 any partnership, corporation, association, unit of local
17 government, or organization that has fewer than 25 full-time
18 employees, the amount of punitive damages may not exceed the
19 lesser of:
20 (1) 3 times the amount awarded to the claimant for
21 actual damages; or
22 (2) $250,000.
23 For purposes of determining the applicability of this
24 subsection (c) to a corporation, the number of employees of a
25 subsidiary of a wholly owned corporation shall include all
26 employees of a parent corporation or any subsidiary of that
27 parent corporation.
28 (d) The limitations contained in subsections (b) and (c)
29 shall be applied by the court and shall not be disclosed to
30 the jury.
31 Section 75. Attorney's fees. In any year 2000 action in
32 which attorney's fees are awarded to a party, those fees may
33 not be awarded at a rate greater than $500 per hour.
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1 Section 80. Exclusivity of contract remedies. A party to
2 a year 2000 action making a tort claim may not recover
3 economic losses unless the party is able to show that at
4 least one of the following circumstances exists:
5 (1) The recovery of the losses is provided for in a
6 contract to which the party seeking to recover the losses
7 is a party.
8 (2) The losses are incidental to a claim in the year
9 2000 action based on personal injury or wrongful death
10 caused by a year 2000 failure.
11 (3) The losses are incidental to a claim in the year
12 2000 action based on damage to tangible property caused
13 by a year 2000 failure (other than damage to property
14 that is the subject of the contract). Economic losses
15 shall be recoverable in a year 2000 action, however, only
16 if applicable federal law, or applicable State law
17 embodied in statute or controlling judicial precedent in
18 effect on January 1, 1999, permits the recovery of the
19 losses in the action.
20 Section 85. Liability of officers and directors.
21 (a) A director, officer, or trustee of a business or
22 other organization (including a corporation, unincorporated
23 association, partnership, or nonprofit organization) shall
24 not be personally liable in any year 2000 action in his or
25 her capacity as a director or officer of the business or
26 organization for an aggregate amount greater than the greater
27 of (i) $100,000 or (ii) the amount of cash compensation
28 received by the director or officer from the business or
29 organization during the 12 months immediately preceding the
30 act or omission for which liability was imposed.
31 (b) Nothing in this Section shall be deemed to impose, or
32 to permit the imposition of, personal liability on any
33 director, officer, or trustee in excess of the aggregate
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1 amount of liability to which the director, officer, or
2 trustee would be subject under applicable State law in effect
3 on January 1, 1999 (including any bylaw authorized by that
4 State law).
5 Section 97. Application and effect of Act.
6 (a) Except as provided in this Section, this Act applies
7 to any action in which a claimant seeks recovery of damages
8 for harm caused by a year 2000 failure, regardless of the
9 legal theory or statute on which the action is based,
10 including an action based in tort, contract, or breach of an
11 express or implied warranty. It applies also to any action
12 based on an alleged failure to properly detect, disclose,
13 prevent, report, or remediate a year 2000 failure.
14 (b) This Act does not apply to an action to collect
15 workers' compensation benefits under the Workers'
16 Compensation Act.
17 (c) This Act does not create a duty. This Act does not
18 create a cause of action.
19 (d) This Act does not limit a person's right to enter
20 into written agreements on the issues of liability and
21 damages for a year 2000 failure. This Act does not limit the
22 right of parties to those written agreements to enforce the
23 terms of those written agreements.
24 (e) This Act does not affect the rights or obligations
25 of parties under a contract of insurance.
26 (f) This Act does not waive sovereign immunity of the
27 State or of a political subdivision of the State.
28 (g) This Act does not expand or limit the immunity of a
29 person under any other law or statute providing immunity.
30 Section 98. Application to pending matters. This Act
31 applies only to actions commenced and complaints filed on or
32 after its effective date.
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1 Section 900. The Illinois Income Tax Act is amended by
2 adding Section 211 as follows:
3 (35 ILCS 5/211 new)
4 Sec. 211. Year 2000 failure tax credit. A taxpayer who
5 is (i) a self-employed taxpayer and employs 25 or fewer
6 employees, (ii) a corporation that employs 25 or fewer
7 employees, or (iii) a partnership that employs 25 or fewer
8 employees is entitled to a credit against the tax imposed by
9 subsections (a) and (b) of Section 201, for taxable year 1999
10 only, in an amount equal to 25% of the total, cumulative cost
11 paid by the taxpayer to remedy an actual or potential year
12 2000 failure as that term is defined in the Year 2000 Jobs
13 Protection Act. A taxpayer claiming the credit provided by
14 this Section shall maintain and record the information
15 required by the Department by rule concerning amounts paid by
16 the taxpayer to remedy the actual or potential year 2000
17 failure.
18 Section 999. Effective date. This Act takes effect upon
19 becoming law.".