II

106TH CONGRESS

1ST SESSION S. 738

To assure that innocent users and businesses gain access to solutions to

the year 2000 problem-related failures through fostering an incentive

to settle year 2000 lawsuits that may disrupt significant sectors of

the American economy.

IN THE SENATE OF THE UNITED STATES

MARCH 25, 1999

Mr. DODD introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

A BILL

To assure that innocent users and businesses gain access

to solutions to the year 2000 problem-related failures

through fostering an incentive to settle year 2000 lawsuits that may disrupt significant sectors of the American economy.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Y2K Fairness in Litigation Act’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:
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Sec. 1. Short title and table of contents.

Sec. 2. Findings, purposes, and scope.

Sec. 3. Definitions.

TITLE I—PRELITIGATION PROCEDURES FOR YEAR 2000 CIVIL

ACTIONS

Sec. 101. Pre-trial notice.

Sec. 102. Alternative dispute resolution.

Sec. 103. Pleading requirements.

Sec. 104. Duty to mitigate.

TITLE II—YEAR 2000 CIVIL ACTIONS INVOLVING CONTRACTS

Sec. 201. Contract preservation.

Sec. 202. Evidence of reasonable efforts.

TITLE III—YEAR 2000 CIVIL ACTIONS INVOLVING TORT AND

OTHER NONCONTRACTUAL CLAIMS

Sec. 301. Proportionate liability.

Sec. 302. State of mind and foreseeability.

Sec. 303. Reasonable efforts defense.

Sec. 304. Economic losses.

TITLE IV—CLASS ACTIONS INVOLVING YEAR 2000 CLAIMS

Sec. 401. Minimum injury requirement.

TITLE V—EFFECTIVE DATE

Sec. 501. Effective date.

1 SEC. 2. FINDINGS, PURPOSES, AND SCOPE.

2 (a) FINDINGS.—Congress finds the following:

3 (1)(A) Many information technology systems,

4 devices, and programs are not capable of recognizing

5 certain dates in 1999 and after December 31, 1999,

6 and will read dates in the year 2000 and thereafter

7 as if those dates represent the year 1900 or there8 after or will fail to process those dates.

9 (B) If not corrected, the problem described in

10 subparagraph (A) and resulting failures could inca11 pacitate systems that are essential to the functioning
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1 of markets, commerce, consumer products, utilities,

2 Government, and safety and defense systems, in the

3 United States and throughout the world.

4 (2) It is in the national interest that producers

5 and users of technology products concentrate their

6 attention and resources in the time remaining before

7 January 1, 2000, on assessing, fixing, testing, and

8 developing contingency plans to address any and all

9 outstanding year 2000 computer date-change prob10 lems, so as to minimize possible disruptions associ11 ated with computer failures.

12 (3)(A) Because year 2000 computer date13 change problems may affect virtually all businesses

14 and other users of technology products to some de15 gree, there is a substantial likelihood that actual or

16 potential year 2000 failures will prompt a significant

17 volume of litigation, much of it insubstantial.

18 (B) The litigation described in subparagraph

19 (A) would have a range of undesirable effects includ20 ing the following:

21 (i) It would threaten to waste technical

22 and financial resources that are better devoted

23 to curing year 2000 computer date-change

24 problems and ensuring that systems remain or

25 become operational.
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1 (ii) It could threaten the network of valued

2 and trusted business and customer relationships

3 that are important to the effective functioning

4 of the national economy.

5 (iii) It would strain the Nation’s legal sys6 tem, causing particular problems for the small

7 businesses and individuals who already find

8 that system inaccessible because of its com9 plexity and expense.

10 (iv) The delays, expense, uncertainties, loss

11 of control, adverse publicity, and animosities

12 that frequently accompany litigation of business

13 disputes could exacerbate the difficulties associ14 ated with the date change and work against the

15 successful resolution of those difficulties.

16 (v) Concern about the potential for liabil17 ity—in particular, concern about the substan18 tial litigation expense associated with defending

19 against even the most insubstantial lawsuits—

20 is prompting many persons and businesses with

21 technical expertise to avoid projects aimed at

22 curing year 2000 computer date-change prob23 lems.
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1 (b) PURPOSES.—Based upon the power contained in

2 article I, section 8, clause 3 of the Constitution of the

3 United States, the purposes of this Act are—

4 (1) to establish uniform legal standards that

5 give all businesses and users of technology products

6 reasonable incentives to solve year 2000 computer

7 date-change problems before they develop;

8 (2) to encourage the resolution of year 2000

9 computer date-change disputes involving economic

10 damages without recourse to unnecessary, time con11 suming, and wasteful litigation; and

12 (3) to lessen burdens on interstate commerce by

13 discouraging insubstantial lawsuits, while also pre14 serving the ability of individuals and businesses that

15 have suffered real injury to obtain complete relief.

16 (c) SCOPE.—Nothing in this Act affects claims for

17 personal injury.

18 SEC. 3. DEFINITIONS.

19 In this Act:

20 (1) ACTUAL DAMAGES.—The term ‘‘actual

21 damages’’—

22 (A) means damages for physical injury to

23 any person or property; and

24 (B) includes the cost of repairing or re25 placing a product that has a material defect.
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1 (2) CONTRACT.—The term ‘‘contract’’ means a

2 contract, tariff, license, or warranty.

3 (3) DEFENDANT.—The term ‘‘defendant’’

4 means any person against whom a year 2000 claim

5 is asserted.

6 (4) ECONOMIC LOSS.—The term ‘‘economic

7 loss’’—

8 (A) means any damages other than dam9 ages arising out of personal injury or damage

10 to tangible property; and

11 (B) includes damages for—

12 (i) lost profits or sales;

13 (ii) business interruption;

14 (iii) losses indirectly suffered as a re15 sult of the defendant’s wrongful act or

16 omission;

17 (iv) losses that arise because of the

18 claims of third parties;

19 (v) losses that are required to be

20 pleaded as special damages; or

21 (vi) items defined as consequential

22 damages in the Uniform Commercial Code

23 or an analogous State commercial law.

24 (5) MATERIAL DEFECT.—
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1 (A) IN GENERAL.—The term ‘‘material de2 fect’’ means a defect in any item, whether tan3 gible or intangible, or in the provision of a serv4 ice, that substantially prevents the item or serv5 ice from operating or functioning as designed or

6 intended.

7 (B) EXCLUSIONS.—The term does not in8 clude any defects that—

9 (i) has an insignificant or de minimis

10 effect on the operation or functioning of an

11 item;

12 (ii) affects only a component of an

13 item that, as a whole, substantially oper14 ates or functions as designed; or

15 (ii) has an insignificant or de minimis

16 effect on the efficacy of the service pro17 vided.

18 (6) PERSON.—The term ‘‘person’’ means any

19 natural person and any entity, organization, or en20 terprise, including any corporation, company (includ21 ing any joint stock company), association, partner22 ship, trust, or government entity.

23 (7) PLAINTIFF.—The term ‘‘plaintiff’’ means

24 any person who asserts a year 2000 claim.
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1 (8) STATE.—The Term ‘‘State’’ means any

2 State of the United States, the District of Columbia,

3 the Commonwealth of Puerto Rico, the Northern

4 Mariana Islands, the U.S. Virgin Islands, Guam,

5 American Samoa, and any other territory or posses6 sion of the United States, and any political subdivi7 sion thereof.

8 (9) YEAR 2000 CIVIL ACTION.—The term ‘‘year

9 2000 civil action’’—

10 (A) means any civil action of any kind

11 brought in any court under Federal, State, or

12 foreign law, in which—

13 (i) a year 2000 claim is asserted; and

14 (ii) any claim or defense is related, di15 rectly or indirectly, to an actual or poten16 tial year 2000 failure; and

17 (B) does not include any action brought by

18 a Federal, State, or other public entity, agency,

19 or authority acting in a regulatory, supervisory,

20 or enforcement capacity.

21 (10) YEAR 2000 CLAIM.—The term ‘‘year 2000

22 claim’’ means any claim or cause of action of any

23 kind, whether asserted by way of claim, counter24 claim, cross-claim, third-party claim, or otherwise, in

25 which the plaintiff’s alleged loss or harm resulted,
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1 directly or indirectly, from an actual or potential

2 year 2000 failure.

3 (11) YEAR 2000 FAILURE.—The term ‘‘year

4 2000 failure’’ means any failure by any device or

5 system (including any computer system and any

6 microchip or integrated circuit embedded in another

7 device or product), or any software, firmware, or

8 other set or collection of processing instructions,

9 however constructed, in processing, calculating, com10 paring, sequencing, displaying, storing, transmitting,

11 or receiving date-related data, including—

12 (A) the failure to accurately administer or

13 account for transitions or comparisons from,

14 into, and between the 20th and 21st centuries,

15 and between 1999 and 2000; or

16 (B) the failure to recognize or accurately

17 process any specific date, and the failure accu18 rately to account for the status of the year

19 2000 as a leap year.

20 TITLE I—PRELITIGATION PRO21 CEDURES FOR YEAR 2000

22 CIVIL ACTIONS

23 SEC. 101. PRE-TRIAL NOTICE.

24 (a) NOTIFICATION PERIOD.—
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1 (1) IN GENERAL.—Before filing a year 2000

2 claim, except an action for a claim that seeks only

3 injunctive relief, a prospective plaintiff shall be re4 quired to provide to each prospective defendant a

5 written notice that identifies and describes with

6 particularity—

7 (A) any manifestation of a material defect

8 alleged to have caused injury;

9 (B) the injury allegedly suffered or reason10 ably risked by the prospective plaintiff; and

11 (C) the relief or action sought by the pro12 spective plaintiff.

13 (2) COMMENCEMENT OF ACTION.—Except as

14 provided in subsections (c) and (e), a prospective

15 plaintiff shall not file a year 2000 claim in Federal

16 or State court until the expiration of the 90-day pe17 riod beginning on the date on which the prospective

18 plaintiff provides notice under paragraph (1).

19 (b) RESPONSE TO NOTICE.—Not later than 30 days

20 after receipt of the notice specified in subsection (a), each

21 prospective defendant shall provide each prospective plain22 tiff a written statement that—

23 (1) acknowledges receipt of the notice; and
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1 (2) describes any actions that the defendant will

2 take, or has taken, to address the defect or injury

3 identified by the prospective plaintiff in the notice.

4 (c) FAILURE TO RESPOND.—If a prospective defend5 ant fails to respond to a notice provided under subsection

6 (a)(1) during the 30-day period prescribed in subsection

7 (b) or does not include in the response a description of

8 actions referred to in subsection (b)(2)—

9 (1) the 90-day waiting period identified in sub10 section (a) shall terminate at the expiration of the

11 30-day period specified in subsection (b) with re12 spect to that prospective defendant; and

13 (2) the prospective plaintiff may commence a

14 year 2000 civil action against such prospective de15 fendant immediately upon the termination of that

16 waiting period.

17 (d) FAILURE TO PROVIDE NOTICE.—

18 (1) IN GENERAL.—Subject to subsections (c)

19 and (e), a defendant may treat a complaint filed by

20 the plaintiff as a notice required under subsection

21 (a) by so informing the court and the plaintiff if the

22 defendant determines that a plaintiff has com23 menced a year 2000 civil action—

24 (A) without providing the notice specified

25 in subsection (a); or
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1 (B) before the expiration of the waiting pe2 riod specified in subsection (a).

3 (2) STAY.—If a defendant elects under para4 graph (1) to treat a complaint as a notice—

5 (A) the court shall stay all discovery and

6 other proceedings in the action for the period

7 specified in subsection (a) beginning on the

8 date of filing of the complaint; and

9 (B) the time for filing answers and all

10 other pleadings shall be tolled during this 90-

11 day period.

12 (e) EFFECT OF CONTRACTUAL WAITING PERIODS.—

13 In any case in which a contract requires notice of non14 performance and provides for a period of delay before the

15 initiation of suit for breach or repudiation of contract, the

16 contractual period of delay controls and shall apply in lieu

17 of the waiting period specified in subsections (a) and (d).

18 (f) SANCTION FOR FRIVOLOUS INVOCATION OF THE

19 STAY PROVISION.—If a defendant acts under subsection

20 (d) to stay an action, and the court subsequently finds

21 that the assertion by the defendant that the action is a

22 year 2000 civil action was frivolous and made for the pur23 pose of causing unnecessary delay, the court may impose

24 a sanction, including an order to make payments to oppos-
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1 ing parties in accordance with Rule 11 of the Federal

2 Rules of Civil Procedure.

3 (g) COMPUTATION OF TIME.—For purposes of this

4 section, the rules regarding computation of time shall be

5 governed by the applicable Federal or State rules of civil

6 procedure.

7 SEC. 102. ALTERNATIVE DISPUTE RESOLUTION.

8 (a) REQUESTS MADE DURING NOTIFICATION PE9 RIOD.—At any time during the 90-day notification period

10 under section 101(a), either party may request the other

11 party to use alternative dispute resolution. If, based upon

12 that request, the parties enter into an agreement to use

13 alternative dispute resolution, the parties may also agree

14 to an extension of that 90-day period.

15 (b) REQUEST MADE AFTER NOTIFICATION PE16 RIOD.—At any time after expiration of the 90-day notifi17 cation period under section 101(a), whether before or after

18 the filing of a complaint, either party may request the

19 other party to use alternative dispute resolution.

20 (c) PAYMENT DATE.—If a dispute that is the subject

21 of the complaint or responsive pleading is resolved through

22 alternative dispute resolution as provided in subsection (a)

23 or (b), the defendant shall pay any amount of funds that

24 the defendant is required to pay the plaintiff under the

25 settlement not later than 30 days after the date on which
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1 the parties settle the dispute, and all other terms shall

2 be implemented as promptly as possible based upon the

3 agreement of the parties, unless another period of time

4 is agreed to by the parties or established by contract be5 tween the parties.

6 SEC. 103. PLEADING REQUIREMENTS.

7 (a) NATURE AND AMOUNT OF DAMAGES.—In any

8 year 2000 civil action in which a plaintiff seeks an award

9 of money damages, the complaint shall state with particu10 larity with regard to each year 2000 claim—

11 (1) the nature and amount of each element of

12 damages; and

13 (2) the factual basis for the calculation of the

14 damages.

15 (b) MATERIAL DEFECTS.—In any year 2000 civil ac16 tion in which the plaintiff alleges that a product or service

17 was defective, the complaint shall, with respect to each

18 year 2000 claim—

19 (1) identify with particularity the manifesta20 tions of the material defects; and

21 (2) state with particularity the facts supporting

22 the conclusion that the defects were material.

23 (c) REQUIRED STATE OF MIND.—In any year 2000

24 civil action in which a year 2000 claim is asserted with

25 respect to which the plaintiff may prevail only on proof
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1 that the defendant acted with a particular state of mind,

2 the complaint shall, with respect to each element of the

3 claim, state in detail the facts giving rise to a strong infer4 ence that the defendant acted with the required state of

5 mind.

6 (d) MOTION TO DISMISS; STAY OF DISCOVERY.—

7 (1) DISMISSAL FOR FAILURE TO MEET PLEAD8 ING REQUIREMENTS.—In any year 2000 civil action,

9 the court shall, on the motion of any defendant, dis10 miss without prejudice any year 2000 claim asserted

11 in the complaint if any of the requirements under

12 subsection (a), (b), or (c) is not met with respect to

13 the claim.

14 (2) STAY OF DISCOVERY.—In any year 2000

15 civil action, all discovery and other proceedings shall

16 be stayed during the pendency of any motion pursu17 ant to this subsection to dismiss, unless the court

18 finds upon the motion of any party that particular19 ized discovery is necessary to preserve evidence or

20 prevent undue prejudice to that party.

21 (3) PRESERVATION OF EVIDENCE.—

22 (A) IN GENERAL.—

23 (i) TREATMENT OF EVIDENCE.—Dur24 ing the pendency of any stay of discovery

25 entered under this paragraph, unless oth-
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1 erwise ordered by the court, any party to

2 the action shall treat the items described

3 in clause (ii) as if they were a subject of

4 a continuing request for production of doc5 uments from an opposing party under ap6 plicable Federal or State rules of civil pro7 cedure.

8 (ii) ITEMS.—The items described in

9 this clause are all documents, data com10 pilations (including electronically stored or

11 recorded data), and tangible objects that—

12 (I) are in the custody or control

13 of the party described in clause (i);

14 and

15 (II) relevant to the allegations.

16 (B) SANCTION FOR WILLFUL VIOLA17 TION.—A party aggrieved by the willful failure

18 of an opposing party to comply with clause (A)

19 may apply to the court for an order awarding

20 appropriate sanctions.

21 SEC. 104. DUTY TO MITIGATE DAMAGES.

22 Damages awarded for any year 2000 claim shall ex23 clude any amount that the plaintiff reasonably should have

24 avoided in light of any disclosure or information with re-
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1 spect to which the plaintiff was, or reasonably should have

2 been, aware.

3 TITLE II—YEAR 2000 CIVIL AC4 TIONS INVOLVING CON5 TRACTS

6 SEC. 201. CONTRACT PRESERVATION.

7 (a) IN GENERAL.—Subject to subsections (b) and (c),

8 notwithstanding any other provision of Federal or State

9 statutory or case law, in any action in which a year 2000

10 claim is advanced, in resolving that claim all written con11 tractual terms, including limitations or exclusions of liabil12 ity or disclaimers of warranty, shall be fully enforceable.

13 (b) INTERPRETATION OF CONTRACT.—In any case in

14 which a contract is silent as to a particular issue, the in15 terpretation of the contract as to that issue shall be deter16 mined by applicable law in effect at the time that the con17 tract was entered into.

18 (c) UNENFORCEABLE CONTRACTS.—Subsection (a)

19 does not apply in any case in which a court determines

20 that the contract as a whole is unenforceable due to an

21 infirmity in the formation of the contract under applicable

22 law in effect at the time the contract was entered into.

23 SEC. 202. EVIDENCE OF REASONABLE EFFORTS.

24 (a) REASONABLE EFFORTS.—In any action in which

25 a year 2000 claim is advanced and in which a breach of
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1 contract or related claim is alleged, in the resolution of

2 that claim, in addition to any other rights provided by ap3 plicable law, the party against whom the claim of breach

4 is asserted shall be allowed, for the purpose of limiting

5 the award of damages, to offer evidence that the imple6 mentation of the contract by that party, or the efforts

7 made by that party to implement the contract, were rea8 sonable in light of the circumstances.

9 (b) IMPOSSIBILITY OR COMMERCIAL IMPRAC10 TICABILITY.—

11 (1) IN GENERAL.—In any action in which a

12 year 2000 claim is advanced and in which a breach

13 of contract or related claim is alleged, in resolving

14 that claim applicability of the doctrines of impos15 sibility and commercial impracticability shall be de16 termined by applicable law in existence on January

17 1, 1999.

18 (2) RULE OF CONSTRUCTION.—Nothing in this

19 Act shall be construed as limiting or impairing a

20 party’s right to assert defenses based upon the doc21 trines referred to in paragraph (1).
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1 TITLE III—YEAR 2000 CIVIL AC2 TIONS INVOLVING TORT AND

3 OTHER NONCONTRACTUAL

4 CLAIMS

5 SEC. 301. PROPORTIONATE LIABILITY.

6 (a) IN GENERAL.—

7 (1) IN GENERAL.—Except as provided in para8 graph (2), a person against whom a final judgment

9 is entered on a year 2000 claim shall be liable solely

10 for the portion of the judgment that corresponds to

11 the percentage of responsibility of that person, as

12 determined under subsection (b).

13 (2) EXCEPTION.—Paragraph (1) does not

14 apply—

15 (A) if the plaintiff is an individual whose net

16 worth is less than $200,000 and the plaintiffs

17 damages were more than 10 percent of his or

18 her net worth, the proportionately liable defend19 ants are jointly and severally liable for any un20 collectable amount; or

21 (B) if the defendant acted knowlingly.

22 (b) DETERMINATION OF RESPONSIBILITY.—

23 (1) IN GENERAL.—As to any year 2000 claim,

24 the court shall instruct the jury to answer special in25 terrogatories, or if there is no jury, make findings,
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1 with respect to each defendant and plaintiff, and

2 each of the other persons claimed by any of the par3 ties to have caused or contributed to the loss in4 curred by the plaintiff, including persons who have

5 entered into settlements with the plaintiff or plain6 tiffs, concerning the percentage of responsibility of

7 that person, measured as a percentage of the total

8 fault of all persons who caused or contributed to the

9 total loss incurred by the plaintiff.

10 (2) CONTENTS OF SPECIAL INTERROGATORIES

11 OR FINDINGS.—The responses to interrogatories, or

12 findings, as appropriate, under paragraph (1) shall

13 specify—

14 (A) the total amount of damages that the

15 plaintiff is entitled to recover; and

16 (B) the percentage of responsibility of each

17 person found to have caused or contributed to

18 the loss incurred by the plaintiff or plaintiffs.

19 (3) FACTORS FOR CONSIDERATION.—In deter20 mining the percentage of responsibility under this

21 paragraph, the trier of fact shall consider—

22 (A) the nature of the conduct of each per23 son alleged to have caused or contributed to the

24 loss incurred by the plaintiff; and
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1 (B) the nature and extent of the causal re2 lationship between the conduct of each such

3 person and the damages incurred by the plain4 tiff or plaintiffs.

5 (4) NONDISCLOSURE TO JURY.—The standard

6 for allocation of damages under paragraph (1) shall

7 not be disclosed to members of the jury.

8 SEC. 302. STATE OF MIND AND FORESEEABILITY.

9 (a) NEGLIGENCE.—With respect to any year 2000

10 claim for money damages, the defendant shall not be liable

11 unless the plaintiff establishes, in addition to all other req12 uisite elements of the claim, that the actions of the defend13 ant created an unreasonable risk of harm to the plaintiff.

14 (b) PRESERVATION OF EXISTING LAW.—Nothing in

15 subsection (a) shall be deemed to create any year 2000

16 claim or to relieve the plaintiff in any year 2000 civil ac17 tion of the obligation of that plaintiff to establish any ele18 ment of the cause of action of that plaintiff under applica19 ble law.

20 SEC. 303. REASONABLE EFFORTS DEFENSE.

21 Except for breach or repudiation of contract claims,

22 as to any year 2000 claim seeking money damages—

23 (1) the fact that a year 2000 failure occurred

24 in an entity, facility, system, product, or component

25 that was within the control of the party against
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1 whom the claim is asserted shall not constitute the

2 sole basis for recovery; and

3 (2) the party against whom the claim is as4 serted shall be entitled to establish, as a complete

5 defense to the claim, that the party took measures

6 that were reasonable under the circumstances to pre7 vent the year 2000 failure from occurring or from

8 causing the damages upon which the claim is based.

9 SEC. 304. ECONOMIC LOSSES.

10 (a) IN GENERAL.—Subject to subsection (b), a party

11 to a year 2000 civil action may not recover economic losses

12 for a year 2000 claim based on tort unless the party is

13 able to show that at least one of the following cir14 cumstances exists:

15 (1) The recovery of these losses is provided for

16 in the contract to which the party seeking to recover

17 such losses is a party.

18 (2) If the contract is silent on those losses, and

19 the application of the applicable Federal or State

20 law that governed interpretation of the contract at

21 the time the contract was entered into would allow

22 recovery of such losses.

23 (3) These losses are incidental to a claim in the

24 year 2000 civil action based on personal injury

25 caused by a year 2000 failure.
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1 (4) These losses are incidental to a claim in the

2 year 2000 civil action based on damage to tangible

3 property caused by a year 2000 failure.

4 (b) TREATMENT OF ECONOMIC LOSSES.—Economic

5 losses shall be recoverable in a year 2000 civil action only

6 if applicable Federal law, or applicable State law embodied

7 in statute or controlling judicial precedent as of January

8 1, 1999, permits the recovery of such losses in the action.

9 TITLE IV—CLASS ACTIONS

10 INVOLVING YEAR 2000 CLAIMS

11 SEC. 401. MINIMUM INJURY REQUIREMENT.

12 (a) IN GENERAL.—In any action involving a year

13 2000 claim that a product or service is defective, the ac14 tion may be maintained as a class action in Federal or

15 State court with respect to that claim only if—

16 (1) the claim satisfies all other prerequisites es17 tablished by applicable Federal or State law; and

18 (2) the court finds that the alleged defect in the

19 product or service was a material defect with respect

20 to a majority of the members of the class.

21 (b) DETERMINATION BY COURT.—

22 (1) IN GENERAL.—As soon as practicable after

23 the commencement of an action involving a year

24 2000 claim that a product or service is defective and

25 that is brought as a class action, the court shall de-
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1 termine by order whether the requirement stated in

2 paragraph (1) is satisfied.

3 (2) ORDERS.—An order under this subsection

4 may be—

5 (A) conditional; and

6 (B) altered or amended before the decision

7 on the merits.

8 TITLE V—EFFECTIVE DATE

9 SEC. 501. EFFECTIVE DATE.

10 This Act and the amendments made by this Act shall

11 take effect on January 1, 1999.

Æ