Senate Bill 0080c3
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Florida Senate - 1999 CS for CS for CS for SB 80
By the Committees on Fiscal Policy; Governmental Oversight and
Productivity; Commerce and Economic Opportunities; and
Senators Grant, Campbell, Klein, Brown-Waite and Bronson
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1 A bill to be entitled
2 An act relating to information technology
3 resources; creating the "Commerce Protection
4 Act"; defining terms; prescribing exclusive
5 remedies against persons, businesses, and
6 governmental agencies for damages caused by the
7 failure of their information technology
8 resources to function properly with respect to
9 date data; prescribing and limiting damages;
10 providing for mediation; barring certain class
11 actions; requiring that actions be brought
12 within a specified time; providing immunity
13 from personal liability for directors and
14 officers of businesses under specified
15 circumstances; exempting the exchange of
16 certain information among businesses from
17 action under the Florida Antitrust Act of 1980;
18 prescribing alternative dispute-resolution
19 procedures; providing for liability for costs
20 and attorney's fees under specified
21 circumstances; prescribing circumstances under
22 which the maker of a year-2000 statement is not
23 liable under state law with respect to that
24 statement; providing for construction of the
25 act; repealing s. 282.4045, F.S., which grants
26 immunity from liability to governmental
27 entities for certain computer calculation
28 failures; providing for severability; providing
29 an effective date.
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31 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Short title.--This act may be cited as the
2 "Commerce Protection Act."
3 Section 2. Definitions.--For the purposes of this act,
4 the following terms have the following meanings:
5 (1) BUSINESS.--The term "business" means a person or
6 an entity engaged in providing goods or services in this
7 state, but the term excludes any governmental agency or any
8 agency of the legislative or judicial branch of state
9 government.
10 (2) DATE DATA.--The term "date data" means data that
11 contain dates or that contain both dates and times.
12 (3) DIRECT ECONOMIC DAMAGES.--The term "direct
13 economic damages" includes only economic compensatory damages
14 that follow both immediately and necessarily from the failure
15 of the information technology products of a business or
16 governmental agency to be year-2000 compliant. The term
17 excludes special damages, incidental damages, and exemplary or
18 punitive damages.
19 (4) GOVERNMENTAL AGENCY.--The term "governmental
20 agency" includes any agency of the executive branch of state
21 government or any political subdivision of the state as
22 defined in section 1.01, Florida Statutes, or any agency of
23 such a political subdivision.
24 (5) INFORMATION TECHNOLOGY PRODUCT.--
25 (a) The term "information technology product" includes
26 software, firmware, microcode, hardware, and equipment
27 containing embedded chips or microprocessors that create,
28 read, write, calculate, compare, sequence, or otherwise
29 operate on date data.
30 (b) The "information technology products" of a
31 business or governmental agency are those that are owned,
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1 leased, or licensed by or under the exclusive control of the
2 business or governmental agency and are used by it in
3 providing its goods or services.
4 (6) YEAR-2000 COMPLIANT.--An information technology
5 product is "year-2000 compliant" if the product, when used in
6 accordance with its associated documentation or recommended
7 user intervention, is capable of correctly processing,
8 providing, and receiving date data, and will do so for all
9 dates occurring between February 28, 1996, and March 1, 2000,
10 when all other information technology products that are used
11 with the product properly exchange date data with it. An
12 information technology product does not fail to be year-2000
13 compliant merely because it contains a defect that is
14 unrelated to the manner in which the product processes,
15 provides, or receives date data and that only incidentally
16 causes the product to fail to properly process, provide, or
17 receive date data.
18 Section 3. Exclusive remedies for failure to be
19 year-2000 compliant.--The exclusive remedies in this state for
20 recovering from a business or governmental agency damages
21 resulting from the failure of its information technology
22 products to be year-2000 compliant are those available for
23 breach of a contract with or a tariff filed by the business or
24 governmental agency; and all terms of that contract or tariff,
25 including limitations on and exclusions of liability and
26 disclaimers of warranty, remain fully enforceable and are
27 unaffected by the provisions of this act. If there is no
28 contract or tariff, the exclusive remedies in this state for
29 recovering from a business or governmental agency damages
30 resulting from the failure of its information technology
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1 products to be year-2000 compliant are those provided in
2 section 4 of this act.
3 Section 4. Damages for failure to be year-2000
4 compliant; mediation; limitation on class actions; statute of
5 limitations.--
6 (1) Unless otherwise provided by a contract or tariff,
7 any business may be liable only for direct economic damages
8 caused by the failure of its information technology products
9 to be year-2000 compliant, as provided in this section.
10 (2) Unless otherwise provided by a contract or tariff,
11 any governmental agency may be liable only for direct economic
12 damages caused by the failure of its information technology
13 products to be year-2000 compliant, and only within the limits
14 on the waiver of sovereign immunity established in section
15 768.28, Florida Statutes.
16 (3) The provisions of section 768.81, Florida
17 Statutes, apply to the award of damages under this section.
18 (4) Damages awarded under this section shall exclude
19 any damages that the plaintiff:
20 (a) Could have avoided or mitigated with the exercise
21 of reasonable care; or
22 (b) Could have reasonably avoided or mitigated as a
23 result of any written or otherwise communicated disclosure
24 actually made by the defendant before December 1, 1999, in a
25 manner consistent with that used in the past to give
26 notifications to the plaintiff or persons similarly situated,
27 concerning whether any of the information technology products
28 of the business or governmental agency was year-2000
29 compliant.
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1 (5)(a) A business or governmental agency is not liable
2 for direct economic damages if it proves by a preponderance of
3 the evidence that it has:
4 1. Secured an assessment, by a person who possesses
5 the technical skills, experience, or competence with respect
6 to information technology resources to evaluate information
7 technology products for year-2000 compliance, to determine
8 actions necessary to make the information technology products
9 of the business or governmental agency year-2000 compliant
10 and, based on that assessment, holds before December 1, 1999,
11 a reasonable good-faith belief that those products are
12 year-2000 compliant;
13 2. Before December 1, 1999, conducted a date-data test
14 of its information technology products and as a result of such
15 test has a reasonable good-faith belief that they are
16 year-2000 compliant; or
17 3. Made reasonable efforts to assess whether the
18 entities on whose goods or services it relies and with whom it
19 is in privity have provided information technology products
20 that are year-2000 compliant and, with respect to each such
21 entity, either:
22 a. Holds before December 1, 1999, a reasonable
23 good-faith belief, based on the response to inquiries or on
24 research, that the entity has provided information technology
25 products that are year-2000 compliant; or
26 b. Discloses in writing to the other party before
27 December 1, 1999, in a manner consistent with that used in the
28 past to give written notifications to that party, that the
29 entity has provided information technology products that are
30 presumed not to be year-2000 compliant or that, based on the
31 response to inquiries, the entity is making reasonable
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1 good-faith efforts to make its information technology products
2 become year-2000 compliant.
3 (b) All defenses that would otherwise be available to
4 a business or governmental agency in any other action,
5 including an action based on negligence, remain available with
6 respect to an action under this section. Moreover, the failure
7 of a business or governmental agency to comply with paragraph
8 (a) shall not create a presumption of liability and no
9 inference may be drawn from such failure.
10 (6) Beginning January 1, 2000, upon the filing of any
11 lawsuit or the presentation of a claim for arbitration under
12 section 7 of this act seeking damages under this section, and
13 prior to the filing of an answer or response, the court having
14 jurisdiction shall refer the claim to mediation under section
15 44.102, Florida Statutes, unless the court determines that the
16 interests of justice would not be served. The time to file the
17 answer or response shall be tolled for up to 60 days after
18 service of process on the defendant or until the conclusion of
19 the mediation, whichever is earlier.
20 (7) A class action may not be maintained in this
21 state:
22 (a) Against a governmental agency for damages caused
23 by the failure of its information technology products to be
24 year-2000 compliant.
25 (b) Against a business for damages caused by the
26 failure of its information technology products to be year-2000
27 compliant, unless each member of the class has suffered direct
28 economic damages in excess of $50,000.
29 (8) Any action for damages under this section must be
30 commenced on or before March 1, 2002, but the running of this
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1 time is tolled from the date any offer is made to submit the
2 claim to mediation until the conclusion of mediation.
3 Section 5. Immunity from liability for directors and
4 officers of businesses.--
5 (1) A director or officer of a business has absolute
6 and complete immunity from personal liability for any damages
7 resulting from the failure of the information technology
8 products of the business to be year-2000 compliant if the
9 officer or director has either instructed the business or
10 received written assurance from another officer or director
11 that the business has been instructed to:
12 (a) Take steps to determine whether those products are
13 year-2000 compliant;
14 (b) Develop and implement a plan to take actions
15 necessary to make those products year-2000 compliant; and
16 (c) Inquire whether the information technology
17 products of the entities on whose goods or services the
18 business relies are year-2000 compliant.
19 (2) A director or officer who does not have absolute
20 and complete immunity from personal liability under subsection
21 (1) nevertheless has immunity from personal liability to the
22 extent provided in chapter 607, Florida Statutes, or chapter
23 617, Florida Statutes.
24 Section 6. Antitrust exemption with respect to
25 exchanges of information.--The exchange of information among
26 businesses concerning measures that have been taken or are to
27 be taken in order for a business to make its information
28 technology products year-2000 compliant does not constitute an
29 activity or conduct in restraint of trade or commerce under
30 chapter 542, Florida Statutes.
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1 Section 7. Alternative dispute-resolution
2 procedures.--
3 (1) VOLUNTARY BINDING ARBITRATION.--
4 (a) Any party to a dispute under this act for which
5 there is no prior arbitration agreement may, before a lawsuit
6 has been filed, make an offer to the other party to submit the
7 dispute to voluntary binding arbitration under section 44.104,
8 Florida Statutes. An offer made under this paragraph must set
9 out the maximum amount of damages that may be imposed pursuant
10 to arbitration.
11 (b) If at trial, the court finds that an offer was
12 made under paragraph (a) and was rejected, the court shall
13 award attorney's fees and costs in accordance with this
14 paragraph.
15 1. If the offer was made by the plaintiff and rejected
16 by the defendant, and if the defendant is ultimately found to
17 be liable for damages in an amount equal to or exceeding that
18 specified in the plaintiff's highest offer, the defendant must
19 pay the plaintiff's costs and reasonable attorney's fees.
20 2. If the offer was made by the defendant and rejected
21 by the plaintiff, and if the plaintiff is not ultimately
22 awarded damages in an amount exceeding that specified in the
23 defendant's highest offer, the plaintiff must pay the
24 defendant's costs and reasonable attorney's fees.
25 (2) MEDIATION.--
26 (a) The court may submit a claim for damages under
27 this act to mediation pursuant to section 44.102, Florida
28 Statutes.
29 (b) A party may serve its last best offer made in
30 mediation upon another party as an offer of judgment under
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1 section 678.79, Florida Statutes, and may make use of all the
2 rights and remedies provided by this section.
3 (c) The court shall have discretion to require that
4 the costs of mediation be shared equally by the parties.
5 Section 8. Securities actions.--If an action based on
6 a year-2000 statement is brought under the securities laws, as
7 that term is defined in Section 3(a)(47) of the Securities
8 Exchange Act of 1934, 15 U.S.C. 78c(a)(47), or based on any
9 document or material filed with the Securities and Exchange
10 Commission, or with federal banking regulators, pursuant to
11 Section 12(i) of the Securities Exchange Act of 1934, 15
12 U.S.C. 781(i), or any disclosure or writing that when made
13 accompanied the solicitation of an offer or sale of
14 securities, the maker of that year-2000 statement is not
15 liable under state law with respect to that statement unless
16 the claimant establishes, in addition to all other requisite
17 elements of the applicable action, that the statement was
18 material and:
19 (1) To the extent that the statement was not a
20 republication of a year-2000 statement originally made by a
21 third party, that the maker made the statement:
22 (a) With actual knowledge that it was false,
23 inaccurate, or misleading;
24 (b) With intent to deceive or mislead; or
25 (c) With a reckless disregard as to its accuracy; or
26 (2) To the extent that the statement was a
27 republication of the year-2000 statement originally made by a
28 third party, that the maker of the republication made the
29 statement:
30 (a) With actual knowledge that it was false,
31 inaccurate, or misleading;
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1 (b) With intent to deceive or mislead; or
2 (c) Without notice because:
3 1. The maker has not verified the contents of the
4 republication; or
5 2. The maker is not the source of the republished
6 statement, the republished statement is based on information
7 supplied by another person or entity, and the notice or
8 republished statement identifies the source of the republished
9 statement.
10 Section 9. Construction of act.--This act shall not be
11 construed to create a new cause of action or a duty to provide
12 notice concerning year-2000 compliance nor be construed to
13 mandate the content or timing of any notice concerning
14 year-2000 compliance.
15 Section 10. Section 282.4045, Florida Statutes, as
16 created by section 4 of chapter 98-331, Laws of Florida, is
17 repealed.
18 Section 11. If any provision of this act or the
19 application thereof to any person or circumstance is held
20 invalid, the invalidity does not affect other provisions or
21 applications of the act which can be given effect without the
22 invalid provision or application, and to this end the
23 provisions of this act are declared severable.
24 Section 12. This act shall take effect upon becoming a
25 law.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS/CS/SB 0080
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4 Adds language specifying that a business or governmental
entity may not be liable for direct economic damages if, among
5 other things, they hold a reasonable good-faith belief that
the information technology products they rely upon are
6 year-2000 complaint.
7 Eliminates the section on confidentiality of information
provided to solution providers and the remedies available for
8 the unlawful use of and disclosure of such confidential
information.
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