II 

114TH CONGRESS 

1ST SESSION S. 2044 

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, and Mr. MORAN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation 

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. 

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: 


asabaliauskas on DSK5VPTVN1PROD with BILLS
2 

•S 2044 IS

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

2 means the Federal Trade Commission. 

3 (2) COVERED COMMUNICATION.—The term 

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

5 or pictorial review, performance assessment of, or 

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

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

8 a form contract with respect to which such person 

9 is also a party. 

10 (3) FORM CONTRACT.—The term ‘‘form con11 tract’’ means a standardized contract used by a per12 son and imposed on an individual without a mean13 ingful opportunity for such individual to negotiate 

14 the standardized terms, but does not include a con15 tract establishing an employer-employee or inde16 pendent contractor relationship. 

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

18 pictures, photographs, and video provided by elec19 tronic means. 

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

21 speech provided by electronic means. 

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

23 words provided by electronic means. 

24 (b) INVALIDITY OF CONTRACTS THAT IMPEDE CON25 SUMER REVIEWS.— 


asabaliauskas on DSK5VPTVN1PROD with BILLS
3 

•S 2044 IS

1 (1) IN GENERAL.—Except as provided in para2 graphs (2) and (3), a provision of a form contract 

3 is void from the inception of such contract if such 

4 provision— 

5 (A) prohibits or restricts the ability of an 

6 individual who is a party to the form contract 

7 to engage in a covered communication; 

8 (B) imposes a penalty or fee against an in9 dividual who is a party to the form contract for 

10 engaging in a covered communication; or 

11 (C) transfers or requires an individual who 

12 is a party to the form contract to transfer to 

13 any person any intellectual property rights that 

14 the individual may have in any otherwise lawful 

15 covered communication about such person or 

16 the goods or services provided by such person. 

17 (2) RULE OF CONSTRUCTION.—Nothing in 

18 paragraph (1) shall be construed to affect— 

19 (A) any duty of confidentiality imposed by 

20 law (including agency guidance); or 

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

22 or slander, or any similar cause of action. 

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

24 apply to the extent that a provision of a form con25 tract prohibits disclosure of the following: 


asabaliauskas on DSK5VPTVN1PROD with BILLS
4 

•S 2044 IS

1 (A) Trade secrets or commercial or finan2 cial information obtained from a person and 

3 considered privileged or confidential. 

4 (B) Personnel and medical files and simi5 lar information the disclosure of which would 

6 constitute a clearly unwarranted invasion of 

7 personal privacy. 

8 (C) Records or information compiled for 

9 law enforcement purposes, the disclosure of 

10 which would constitute a clearly unwarranted 

11 invasion of personal privacy. 

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

13 to offer or enter into a form contract containing a provi14 sion described as void in subsection (b). 

15 (d) ENFORCEMENT BY COMMISSION.— 

16 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC17 TICES.—A violation of subsection (c) by a person 

18 with respect to which the Commission is empowered 

19 under section 5(a)(2) of the Federal Trade Commis20 sion Act (15 U.S.C. 45(a)(2)) shall be treated as a 

21 violation of a rule defining an unfair or deceptive act 

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

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

24 57a(a)(1)(B)). 

25 (2) POWERS OF COMMISSION.— 


asabaliauskas on DSK5VPTVN1PROD with BILLS
5 

•S 2044 IS

1 (A) IN GENERAL.—The Commission shall 

2 enforce this section in the same manner, by the 

3 same means, and with the same jurisdiction, 

4 powers, and duties as though all applicable 

5 terms and provisions of the Federal Trade 

6 Commission Act (15 U.S.C. 41 et seq.) were in7 corporated into and made a part of this Act. 

8 (B) PRIVILEGES AND IMMUNITIES.—Any 

9 person who violates this section shall be subject 

10 to the penalties and entitled to the privileges 

11 and immunities provided in the Federal Trade 

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

13 (e) ENFORCEMENT BY STATES.— 

14 (1) IN GENERAL.—In any case in which the at15 torney general of a State has reason to believe that 

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

17 is threatened or adversely affected by the engage18 ment of any person subject to subsection (c) in a 

19 practice that violates such subsection, the attorney 

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

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

22 in an appropriate district court of the United States 

23 to obtain appropriate relief. 

24 (2) RIGHTS OF FEDERAL TRADE COMMIS25 SION.— 


asabaliauskas on DSK5VPTVN1PROD with BILLS
6 

•S 2044 IS

1 (A) NOTICE TO FEDERAL TRADE COMMIS2 SION.— 

3 (i) IN GENERAL.—Except as provided 

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

5 State shall notify the Commission in writ6 ing that the attorney general intends to 

7 bring a civil action under paragraph (1) 

8 before initiating the civil action against a 

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

10 (ii) CONTENTS.—The notification re11 quired by clause (i) with respect to a civil 

12 action shall include a copy of the complaint 

13 to be filed to initiate the civil action. 

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

15 for the attorney general of a State to pro16 vide the notification required by clause (i) 

17 before initiating a civil action under para18 graph (1), the attorney general shall notify 

19 the Commission immediately upon insti20 tuting the civil action. 

21 (B) INTERVENTION BY FEDERAL TRADE

22 COMMISSION.—The Commission may— 

23 (i) intervene in any civil action 

24 brought by the attorney general of a State 


asabaliauskas on DSK5VPTVN1PROD with BILLS
7 

•S 2044 IS

1 under paragraph (1) against a person de2 scribed in subsection (d)(1); and 

3 (ii) upon intervening— 

4 (I) be heard on all matters aris5 ing in the civil action; and 

6 (II) file petitions for appeal of a 

7 decision in the civil action. 

8 (3) INVESTIGATORY POWERS.—Nothing in this 

9 subsection may be construed to prevent the attorney 

10 general of a State from exercising the powers con11 ferred on the attorney general by the laws of the 

12 State to conduct investigations, to administer oaths 

13 or affirmations, or to compel the attendance of wit14 nesses or the production of documentary or other 

15 evidence. 

16 (4) PREEMPTIVE ACTION BY FEDERAL TRADE

17 COMMISSION.—If the Federal Trade Commission in18 stitutes a civil action or an administrative action 

19 with respect to a violation of subsection (c), the at20 torney general of a State may not, during the pend21 ency of such action, bring a civil action under para22 graph (1) against any defendant named in the com23 plaint of the Commission for the violation with re24 spect to which the Commission instituted such ac25 tion. 


asabaliauskas on DSK5VPTVN1PROD with BILLS
8 

•S 2044 IS

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 

7 title 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 

19 authorized by the State to do so may bring a 

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

21 same requirements and limitations that apply 

22 under this subsection to civil actions brought by 

23 attorneys general. 

24 (B) SAVINGS PROVISION.—Nothing in this 

25 subsection may be construed to prohibit an auVerDate Sep 11 2014 22:59 Sep 16, 2015 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2044.IS S2044

asabaliauskas on DSK5VPTVN1PROD with BILLS
9 

•S 2044 IS

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 (7) PROHIBITION ON ENTERING INTO CONTIN6 GENCY FEE AGREEMENT WITH OUTSIDE COUNSEL

7 FOR STATE ENFORCEMENT.— 

8 (A) CONTINGENCY FEE AGREEMENT DE9 FINED.—For purposes of this paragraph, the 

10 term ‘‘contingency fee agreement’’ means a con11 tract or other agreement to provide services 

12 under which the amount or the payment of the 

13 fee for services is contingent in whole or in part 

14 on the outcome of the matter for which the 

15 services were obtained. 

16 (B) PROHIBITION.—An attorney general of 

17 a State, or any State or local law enforcement 

18 agency, may not enter into a contingency fee 

19 agreement for legal or expert witness services 

20 relating to an action commenced under para21 graph (1). 

22 (f) EDUCATION AND OUTREACH FOR BUSINESSES.— 

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

24 of this Act, the Commission shall commence conducting 


asabaliauskas on DSK5VPTVN1PROD with BILLS
10 

•S 2044 IS

1 education and outreach that provides businesses with non2 binding best practices for compliance with this Act. 

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

4 Nothing in this section shall be construed to affect any 

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

6 exist under State law. 

7 (h) EFFECTIVE DATES.—This section shall take ef8 fect on the date of the enactment of this Act, except 

9 that— 

10 (1) subsections (b) and (c) shall apply with re11 spect to contracts in effect on or after the date of 

12 the enactment of this Act; and 

13 (2) subsections (d) and (e) shall apply with re14 spect to contracts in effect on or after the date that 

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

Æ 


asabaliauskas on DSK5VPTVN1PROD with BILLS