II 

Calendar No. 316 

114TH CONGRESS 

1ST SESSION S. 2044 

[Report No. 114–175] 

To prohibit the use of certain clauses in form contracts that restrict the 

ability of a consumer to communicate regarding the goods or services 

offered in interstate commerce that were the subject of the contract, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 16, 2015 

Mr. THUNE (for himself, Mr. SCHATZ, Mr. MORAN, Mr. BLUMENTHAL, Mrs. 

MCCASKILL, Mr. NELSON, Mr. DAINES, and Mr. BOOKER) introduced 

the following bill; which was read twice and referred to the Committee 

on Commerce, Science, and Transportation 

DECEMBER 8, 2015 

Reported by Mr. THUNE, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To prohibit the use of certain clauses in form contracts 

that restrict the ability of a consumer to communicate 

regarding the goods or services offered in interstate commerce that were the subject of the contract, and for 

other purposes. 


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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. 

4 This Act may be cited as the ‘‘Consumer Review 

5 Freedom Act of 2015’’. 

6 SEC. 2. CONSUMER REVIEW PROTECTION. 

7 (a) DEFINITIONS.—In this section: 

8 (1) COMMISSION.—The term ‘‘Commission’’ 

9 means the Federal Trade Commission. 

10 (2) COVERED COMMUNICATION.—The term 

11 ‘‘covered communication’’ means a written, verbal, 

12 or pictorial review, performance assessment of, or 

13 other similar analysis of, the products, services, or 

14 conduct of a person by an individual who is party to 

15 a form contract with respect to which such person 

16 is also a party. 

17 (3) FORM CONTRACT.—The term ‘‘form con18 tract’’ means a standardized contract used by a per19 son and imposed on an individual without a mean20 ingful opportunity for such individual to negotiate 

21 the standardized terms, but does not include a con22 tract establishing an employer-employee or inde23 pendent contractor relationship. 


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1 (4) PICTORIAL.—The term ‘‘pictorial’’ includes 

2 pictures, photographs, and video provided by elec3 tronic means. 

4 (5) VERBAL.—The term ‘‘verbal’’ includes 

5 speech provided by electronic means. 

6 (6) WRITTEN.—The term ‘‘written’’ includes 

7 words provided by electronic means. 

8 (b) INVALIDITY OF CONTRACTS THAT IMPEDE CON9 SUMER REVIEWS.— 

10 (1) IN GENERAL.—Except as provided in para11 graphs (2) and (3), a provision of a form contract 

12 is void from the inception of such contract if such 

13 provision— 

14 (A) prohibits or restricts the ability of an 

15 individual who is a party to the form contract 

16 to engage in a covered communication; 

17 (B) imposes a penalty or fee against an in18 dividual who is a party to the form contract for 

19 engaging in a covered communication; or 

20 (C) transfers or requires an individual who 

21 is a party to the form contract to transfer to 

22 any person any intellectual property rights that 

23 the individual may have in any otherwise lawful 

24 covered communication about such person or 

25 the goods or services provided by such person. 


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1 (2) RULE OF CONSTRUCTION.—Nothing in 

2 paragraph (1) shall be construed to affect— 

3 (A) any duty of confidentiality imposed by 

4 law (including agency guidance); or 

5 (B) any civil action for defamation, libel, 

6 or slander, or any similar cause of action. 

7 (3) EXCEPTIONS.—Paragraph (1) shall not 

8 apply to the extent that a provision of a form con9 tract prohibits disclosure of the following: 

10 (A) Trade secrets or commercial or finan11 cial information obtained from a person and 

12 considered privileged or confidential. 

13 (B) Personnel and medical files and simi14 lar information the disclosure of which would 

15 constitute a clearly unwarranted invasion of 

16 personal privacy. 

17 (C) Records or information compiled for 

18 law enforcement purposes, the disclosure of 

19 which would constitute a clearly unwarranted 

20 invasion of personal privacy. 

21 (c) PROHIBITION.—It shall be unlawful for a person 

22 to offer or enter into a form contract containing a provi23 sion described as void in subsection (b). 

24 (d) ENFORCEMENT BY COMMISSION.— 


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1 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC2 TICES.—A violation of subsection (c) by a person 

3 with respect to which the Commission is empowered 

4 under section 5(a)(2) of the Federal Trade Commis5 sion Act (15 U.S.C. 45(a)(2)) shall be treated as a 

6 violation of a rule defining an unfair or deceptive act 

7 or practice prescribed under section 18(a)(1)(B) of 

8 the Federal Trade Commission Act (15 U.S.C. 

9 57a(a)(1)(B)). 

10 (2) POWERS OF COMMISSION.— 

11 (A) IN GENERAL.—The Commission shall 

12 enforce this section in the same manner, by the 

13 same means, and with the same jurisdiction, 

14 powers, and duties as though all applicable 

15 terms and provisions of the Federal Trade 

16 Commission Act (15 U.S.C. 41 et seq.) were in17 corporated into and made a part of this Act. 

18 (B) PRIVILEGES AND IMMUNITIES.—Any 

19 person who violates this section shall be subject 

20 to the penalties and entitled to the privileges 

21 and immunities provided in the Federal Trade 

22 Commission Act (15 U.S.C. 41 et seq.). 

23 (e) ENFORCEMENT BY STATES.— 

24 (1) IN GENERAL.—In any case in which the at25 torney general of a State has reason to believe that 


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1 an interest of the residents of the State has been or 

2 is threatened or adversely affected by the engage3 ment of any person subject to subsection (c) in a 

4 practice that violates such subsection, the attorney 

5 general of the State may, as parens patriae, bring 

6 a civil action on behalf of the residents of the State 

7 in an appropriate district court of the United States 

8 to obtain appropriate relief. 

9 (2) RIGHTS OF FEDERAL TRADE COMMIS10 SION.— 

11 (A) NOTICE TO FEDERAL TRADE COMMIS12 SION.— 

13 (i) IN GENERAL.—Except as provided 

14 in clause (iii), the attorney general of a 

15 State shall notify the Commission in writ16 ing that the attorney general intends to 

17 bring a civil action under paragraph (1) 

18 before initiating the civil action against a 

19 person described in subsection (d)(1). 

20 (ii) CONTENTS.—The notification re21 quired by clause (i) with respect to a civil 

22 action shall include a copy of the complaint 

23 to be filed to initiate the civil action. 

24 (iii) EXCEPTION.—If it is not feasible 

25 for the attorney general of a State to proVerDate Sep 11 2014 22:11 Dec 08, 2015 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S2044.RS S2044

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1 vide the notification required by clause (i) 

2 before initiating a civil action under para3 graph (1), the attorney general shall notify 

4 the Commission immediately upon insti5 tuting the civil action. 

6 (B) INTERVENTION BY FEDERAL TRADE

7 COMMISSION.—The Commission may— 

8 (i) intervene in any civil action 

9 brought by the attorney general of a State 

10 under paragraph (1) against a person de11 scribed in subsection (d)(1); and 

12 (ii) upon intervening— 

13 (I) be heard on all matters aris14 ing in the civil action; and 

15 (II) file petitions for appeal of a 

16 decision in the civil action. 

17 (3) INVESTIGATORY POWERS.—Nothing in this 

18 subsection may be construed to prevent the attorney 

19 general of a State from exercising the powers con20 ferred on the attorney general by the laws of the 

21 State to conduct investigations, to administer oaths 

22 or affirmations, or to compel the attendance of wit23 nesses or the production of documentary or other 

24 evidence. 


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1 (4) PREEMPTIVE ACTION BY FEDERAL TRADE

2 COMMISSION.—If the Federal Trade Commission in3 stitutes a civil action or an administrative action 

4 with respect to a violation of subsection (c), the at5 torney general of a State may not, during the pend6 ency of such action, bring a civil action under para7 graph (1) against any defendant named in the com8 plaint of the Commission for the violation with re9 spect to which the Commission instituted such ac10 tion. 

11 (5) VENUE; SERVICE OF PROCESS.— 

12 (A) VENUE.—Any action brought under 

13 paragraph (1) may be brought in— 

14 (i) the district court of the United 

15 States that meets applicable requirements 

16 relating to venue under section 1391 of 

17 title 28, United States Code; or 

18 (ii) another court of competent juris19 diction. 

20 (B) SERVICE OF PROCESS.—In an action 

21 brought under paragraph (1), process may be 

22 served in any district in which the defendant— 

23 (i) is an inhabitant; or 

24 (ii) may be found. 

25 (6) ACTIONS BY OTHER STATE OFFICIALS.— 


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1 (A) IN GENERAL.—In addition to civil ac2 tions brought by attorneys general under para3 graph (1), any other officer of a State who is 

4 authorized by the State to do so may bring a 

5 civil action under paragraph (1), subject to the 

6 same requirements and limitations that apply 

7 under this subsection to civil actions brought by 

8 attorneys general. 

9 (B) SAVINGS PROVISION.—Nothing in this 

10 subsection may be construed to prohibit an au11 thorized official of a State from initiating or 

12 continuing any proceeding in a court of the 

13 State for a violation of any civil or criminal law 

14 of the State. 

15 (7) PROHIBITION ON ENTERING INTO CONTIN16 GENCY FEE AGREEMENT WITH OUTSIDE COUNSEL

17 FOR STATE ENFORCEMENT.— 

18 (A) CONTINGENCY FEE AGREEMENT DE19 FINED.—For purposes of this paragraph, the 

20 term ‘‘contingency fee agreement’’ means a con21 tract or other agreement to provide services 

22 under which the amount or the payment of the 

23 fee for services is contingent in whole or in part 

24 on the outcome of the matter for which the 

25 services were obtained. 


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1 (B) PROHIBITION.—An attorney general of 

2 a State, or any State or local law enforcement 

3 agency, may not enter into a contingency fee 

4 agreement for legal or expert witness services 

5 relating to an action commenced under para6 graph (1). 

7 (f) EDUCATION AND OUTREACH FOR BUSINESSES.— 

8 Not later than 60 days after the date of the enactment 

9 of this Act, the Commission shall commence conducting 

10 education and outreach that provides businesses with non11 binding best practices for compliance with this Act. 

12 (g) RELATION TO STATE CAUSES OF ACTION.— 

13 Nothing in this section shall be construed to affect any 

14 cause of action brought by a person that exists or may 

15 exist under State law. 

16 (h) EFFECTIVE DATES.—This section shall take ef17 fect on the date of the enactment of this Act, except 

18 that— 

19 (1) subsections (b) and (c) shall apply with re20 spect to contracts in effect on or after the date of 

21 the enactment of this Act; and 

22 (2) subsections (d) and (e) shall apply with re23 spect to contracts in effect on or after the date that 

24 is 1 year after the date of the enactment of this Act. 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Consumer Review Free3 dom Act of 2015’’. 

4 SEC. 2. CONSUMER REVIEW PROTECTION. 

5 (a) DEFINITIONS.—In this section: 

6 (1) COMMISSION.—The term ‘‘Commission’’ 

7 means the Federal Trade Commission. 

8 (2) COVERED COMMUNICATION.—The term ‘‘cov9 ered communication’’ means a written, oral, or pic10 torial review, performance assessment of, or other 

11 similar analysis of, including by electronic means, the 

12 goods, services, or conduct of a person by an indi13 vidual who is party to a form contract with respect 

14 to which such person is also a party. 

15 (3) FORM CONTRACT.— 

16 (A) IN GENERAL.—Except as provided in 

17 subparagraph (B), the term ‘‘form contract’’ 

18 means a contract with standardized terms— 

19 (i) used by a person in the course of 

20 selling or leasing the person’s goods or serv21 ices; and 

22 (ii) imposed on an individual without 

23 a meaningful opportunity for such indi24 vidual to negotiate the standardized terms. 


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1 (B) EXCEPTION.—The term ‘‘form contract’’ 

2 does not include an employer-employee or inde3 pendent contractor contract. 

4 (4) PICTORIAL.—The term ‘‘pictorial’’ includes 

5 pictures, photographs, video, illustrations, and sym6 bols. 

7 (b) INVALIDITY OF CONTRACTS THAT IMPEDE CON8 SUMER REVIEWS.— 

9 (1) IN GENERAL.—Except as provided in para10 graphs (2) and (3), a provision of a form contract is 

11 void from the inception of such contract if such provi12 sion— 

13 (A) prohibits or restricts the ability of an 

14 individual who is a party to the form contract 

15 to engage in a covered communication; 

16 (B) imposes a penalty or fee against an in17 dividual who is a party to the form contract for 

18 engaging in a covered communication; or 

19 (C) transfers or requires an individual who 

20 is a party to the form contract to transfer to any 

21 person any intellectual property rights in review 

22 or feedback content, with the exception of a non23 exclusive license to use the content, that the indi24 vidual may have in any otherwise lawful covered 


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1 communication about such person or the goods or 

2 services provided by such person. 

3 (2) RULE OF CONSTRUCTION.—Nothing in para4 graph (1) shall be construed to affect— 

5 (A) any duty of confidentiality imposed by 

6 law (including agency guidance); 

7 (B) any civil action for defamation, libel, or 

8 slander, or any similar cause of action; 

9 (C) any party’s right to remove or refuse to 

10 publish any statement on an Internet website 

11 owned or operated by such party that contains 

12 the personal information or likeness of another 

13 person or is libelous, harassing, abusive, obscene, 

14 vulgar, sexually explicit, inappropriate with re15 spect to race, gender, sexuality, ethnicity, or 

16 other intrinsic characteristic, or that is unrelated 

17 to the goods or services offered by such party; or 

18 (D) a party’s right to establish terms and 

19 conditions with respect to the creation of photo20 graphs or video of such party’s property when 

21 those photographs or video are created by an em22 ployee or independent contractor of a commercial 

23 entity and solely intended for commercial pur24 poses by that entity. 


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1 (3) EXCEPTIONS.—Paragraph (1) shall not 

2 apply to the extent that a provision of a form con3 tract prohibits disclosure of the following: 

4 (A) Trade secrets or commercial or finan5 cial information obtained from a person and 

6 considered privileged or confidential. 

7 (B) Personnel and medical files and similar 

8 information the disclosure of which would con9 stitute a clearly unwarranted invasion of per10 sonal privacy. 

11 (C) Records or information compiled for 

12 law enforcement purposes, the disclosure of which 

13 would constitute a clearly unwarranted invasion 

14 of personal privacy. 

15 (c) PROHIBITION.—It shall be unlawful for a person 

16 to offer or enter into a form contract containing a provision 

17 described as void in subsection (b). 

18 (d) ENFORCEMENT BY COMMISSION.— 

19 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC20 TICES.—A violation of subsection (c) by a person with 

21 respect to which the Commission is empowered under 

22 section 5(a)(2) of the Federal Trade Commission Act 

23 (15 U.S.C. 45(a)(2)) shall be treated as a violation of 

24 a rule defining an unfair or deceptive act or practice 


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1 prescribed under section 18(a)(1)(B) of the Federal 

2 Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). 

3 (2) POWERS OF COMMISSION.— 

4 (A) IN GENERAL.—The Commission shall 

5 enforce this section in the same manner, by the 

6 same means, and with the same jurisdiction, 

7 powers, and duties as though all applicable 

8 terms and provisions of the Federal Trade Com9 mission Act (15 U.S.C. 41 et seq.) were incor10 porated into and made a part of this Act. 

11 (B) PRIVILEGES AND IMMUNITIES.—Any 

12 person who violates this section shall be subject 

13 to the penalties and entitled to the privileges and 

14 immunities provided in the Federal Trade Com15 mission Act (15 U.S.C. 41 et seq.). 

16 (e) ENFORCEMENT BY STATES.— 

17 (1) AUTHORIZATION.—Subject to subparagraph 

18 (B), in any case in which the attorney general of a 

19 State has reason to believe that an interest of the resi20 dents of the State has been or is threatened or ad21 versely affected by the engagement of any person sub22 ject to subsection (c) in a practice that violates such 

23 subsection, the attorney general of the State may, as 

24 parens patriae, bring a civil action on behalf of the 


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1 residents of the State in an appropriate district court 

2 of the United States to obtain appropriate relief. 

3 (2) RIGHTS OF FEDERAL TRADE COMMISSION.— 

4 (A) NOTICE TO FEDERAL TRADE COMMIS5 SION.— 

6 (i) IN GENERAL.—Except as provided 

7 in clause (iii), the attorney general of a 

8 State shall notify the Commission in writ9 ing that the attorney general intends to 

10 bring a civil action under paragraph (1) 

11 before initiating the civil action against a 

12 person described in subsection (d)(1). 

13 (ii) CONTENTS.—The notification re14 quired by clause (i) with respect to a civil 

15 action shall include a copy of the complaint 

16 to be filed to initiate the civil action. 

17 (iii) EXCEPTION.—If it is not feasible 

18 for the attorney general of a State to pro19 vide the notification required by clause (i) 

20 before initiating a civil action under para21 graph (1), the attorney general shall notify 

22 the Commission immediately upon insti23 tuting the civil action. 

24 (B) INTERVENTION BY FEDERAL TRADE

25 COMMISSION.—The Commission may— 


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1 (i) intervene in any civil action 

2 brought by the attorney general of a State 

3 under paragraph (1) against a person de4 scribed in subsection (d)(1); and 

5 (ii) upon intervening— 

6 (I) be heard on all matters arising 

7 in the civil action; and 

8 (II) file petitions for appeal of a 

9 decision in the civil action. 

10 (3) INVESTIGATORY POWERS.—Nothing in this 

11 subsection may be construed to prevent the attorney 

12 general of a State from exercising the powers con13 ferred on the attorney general by the laws of the State 

14 to conduct investigations, to administer oaths or affir15 mations, or to compel the attendance of witnesses or 

16 the production of documentary or other evidence. 

17 (4) PREEMPTIVE ACTION BY FEDERAL TRADE

18 COMMISSION.—If the Federal Trade Commission in19 stitutes a civil action or an administrative action 

20 with respect to a violation of subsection (c), the attor21 ney general of a State may not, during the pendency 

22 of such action, bring a civil action under paragraph 

23 (1) against any defendant named in the complaint of 

24 the Commission for the violation with respect to 

25 which the Commission instituted such action. 


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1 (5) VENUE; SERVICE OF PROCESS.— 

2 (A) VENUE.—Any action brought under 

3 paragraph (1) may be brought in— 

4 (i) the district court of the United 

5 States that meets applicable requirements 

6 relating to venue under section 1391 of title 

7 28, United States Code; or 

8 (ii) another court of competent juris9 diction. 

10 (B) SERVICE OF PROCESS.—In an action 

11 brought under paragraph (1), process may be 

12 served in any district in which the defendant— 

13 (i) is an inhabitant; or 

14 (ii) may be found. 

15 (6) ACTIONS BY OTHER STATE OFFICIALS.— 

16 (A) IN GENERAL.—In addition to civil ac17 tions brought by attorneys general under para18 graph (1), any other officer of a State who is au19 thorized by the State to do so may bring a civil 

20 action under paragraph (1), subject to the same 

21 requirements and limitations that apply under 

22 this subsection to civil actions brought by attor23 neys general. 

24 (B) SAVINGS PROVISION.—Nothing in this 

25 subsection may be construed to prohibit an auVerDate Sep 11 2014 22:11 Dec 08, 2015 Jkt 059200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6203 E:\BILLS\S2044.RS S2044

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1 thorized official of a State from initiating or 

2 continuing any proceeding in a court of the 

3 State for a violation of any civil or criminal law 

4 of the State. 

5 (f) EDUCATION AND OUTREACH FOR BUSINESSES.— 

6 Not later than 60 days after the date of the enactment of 

7 this Act, the Commission shall commence conducting edu8 cation and outreach that provides businesses with non-bind9 ing best practices for compliance with this Act. 

10 (g) RELATION TO STATE CAUSES OF ACTION.—Noth11 ing in this section shall be construed to affect any cause 

12 of action brought by a person that exists or may exist under 

13 State law. 

14 (h) EFFECTIVE DATES.—This section shall take effect 

15 on the date of the enactment of this Act, except that— 

16 (1) subsections (b) and (c) shall apply with re17 spect to contracts in effect on or after the date that 

18 is 90 days after the date of the enactment of this Act; 

19 and 

20 (2) subsections (d) and (e) shall apply with re21 spect to contracts in effect on or after the date that 

22 is 1 year after the date of the enactment of this Act. 


asabaliauskas on DSK5VPTVN1PROD with BILLS
Calendar No. 316 

114TH CONGRESS 

1ST SESSION S. 2044 

[Report No. 114–175] 

A BILL 

To prohibit the use of certain clauses in form conject of the contract, and for other purposes. fered in interstate commerce that were the sub- communicate regarding the goods or services of- tracts that restrict the ability of a consumer to 

DECEMBER 8, 2015 

Reported with an amendment 


asabaliauskas on DSK5VPTVN1PROD with BILLS