AMENDMENT NO. Calendar No. Purpose: In the nature of a substitute. IN THE SENATE OF THE UNITED Conga, Sess. 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 com? merce that were the subject of the contract, and for other purposes. Referred to the Committee on and ordered to be printed Ordered to lie on the table and to be printed THE NATURE or A intended to be prepesed by Mr. TIIUNE Viz: 1 Strike all after the enacting clause and insert the fol- 2 lowing: 3 SECTION 1. SHORT TITLE. 4 This Act mayr be cited as the ?Consumer Review 5 Freedom Act of 2015?. 6 SEC. 2. CONSUMER REVIEW PROTECTION. 7 DEFINITIONS. In this section: 8 (I) term ?Commission? 9 means the Federal Trade Commission. pm.) HALEGCNSIAL 1 ?i?i?hhi?iME . ennui 24 25 sin-ion Rowen-Ts. November 17. 2015 pm.) h" Cos-omen term ?covered means at written, oral, or pietoriel review, irierfornianee assessment of, or other similar analysis of, int-hiding; by eleetronie means, the twoods, serviees, or eonduet of a person by on in~ diriduai who is party;r to a form eontreet with. respect to Whieh sueh person is also a party. Fons-I eonrnemtm (A) IN as. provided in subperng'raph (B), the term ?form eontrnet? means a. eontraet with standardized terms used by person in the eourse of selling or leasing the person?s goods or Sid?id?t??; and (ii) iiniziosed on on individual without a meaningful opportunity for sueh indi- vidual to negotiate the standardized terms. (B) term ?form eon- trnet? does not inelude an employer-employee or independent eontreetor eoi'itreet. (at) PIFTORIAL. The term ?pietorioi? includes pietures, photographs, video, illustrations, and sym? bots. Imumnirr or? CONTRACTS THAT Iii-Irene Con-- SALE 1R1 memo-rs NIH-IE 3 1 (1) IN GENERAL. Except as provided in para- 2 graphs (2) and (3), a provision of a form contract 3 is void fret-ii 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 in- 9 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 in 14 review or feedback content, with the exception 15 of a nonexclusive license to use the content, 16 tl'iat the individual may have in any otherwise 17 lawful covered conunuoication about such porn 18 son or the goods or services provided by such 19 person. 20 RULE or Nothing in 21 paragraph (1) shall he construed to affect? 22 (A) any duty of confidentiality imposed by 23 law (ii?icluding agency guidance), 24 (B) any civil action for defamation, libel, 25 or slander, or any similar cause of aetio11;_ November 2015 pm.) [14415138 signal November 2015 {1:27 pm.) 4 any paity?s right to remove or refuse to publish any statement on an Internet website owned or operated by such party that contains the personal ll?lf?l'm?ti?? or likeness of another person or is libelous, harassing, abusive, ob- scene, 1vulgar, sexually explicit, inappropriate with respect. to race, gender, semiality? eth?~ nicity, or other intrinsic characteristic, or that is unrelated to the goods or services o?'ered by such party; or (D) a party?s right. to establish terms and conditions With respect to the creation of photo- grapl'is or video of such party?s property when those photographs or video are created by an employee or independent contractor of a coin? i'nercial entity and solely intei'ided for commer- cial purposes by that entity. (1) shall. not appiy to the extent that a provision of a form con- tract prohibits disclosure of the following": (A) Trade secrets or commercial or finan~ cial information obtained from a person and considered privileged or confidential. (B) Personnel. and medical files and Sl?llw lar information the disclosure of which would November 2015 p.111.) 5 constitute a. ciearlfr unwai'Tant-ed invasion of personal privacy. Records or information compiled for law enforcement purposes, the disclosure of which would constitute a. clearly unwarranted invasion of personal privacy. shall be unlawful for a person to offer or enter into a form contract containing a provi- sion described as void in subsection ENFORCEMENT BY (1) on. were on enac- TIt'fEs. A violation of subsection by a person with respect to which the. Commission. is empowered under section of the Federal Trade. Commis- sion Act. (15 UBC. shall be treated as a Violation of a rule defining an unfair or deceptive act or practice prescribed under section of USE. Federal Trade Commission Act (11) ?Tataltl?BD. or (A) IN consume?5111.2 Commission shall enforce this section in the. same manner, by; the same means, and with the same jurisdiction, powers, and duties. as though all applicable terms and provisions oi" the Federal Trade JR 1 EXPNKAJI NI ND 00 1b- UJ .N pm.) 6 Commission hot (15 U.S.C. 41 et seq) were in- eorporated into and made a part of this Aet. Ange (B) PRIVILEGES AND [its-itrNITIEs. person who violates this seetion shall be snbjeet to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission rLet (15 [18.0. 41 et seq). Rr ArTnoRiEA'rirm. Subjeet to suhparagraph (B), in any ease. in whieh the attorney general of a State has reason to believe that an interest of the residents of the State has been or is threatened or adversely affeeted by the engagement of any person subject to sabseetion in a, praetiee that violates sneh snbseetion, the attorneyr general of the State may, as parens patriae, bring a eivil aetion on behalf of the residents of the State in an appropriate dis- triet eonrt of the United States to obtain appro? priate relief. Riot-its I on FEDERAL TRADE tram-11s- sins-? no Norms TU FEDERAL TRADE eoMMIs- IX as provided in clause the attorney general of a NDM N?I?it?? 0-1 4ANS. aime November 1 T, 2015 pm.) Commission may 7 State shall noti?r the Commission in writ- ing: that. the attorney general intends to bring a civil aetion under paragraph (1.) before initiating: the eiiril aetion against a person tieseribed in snbseetion (ii) notification re? quired by elause with respeet- to a. {?iVll aetion shall inelntle a eopy of the eoinplaint to he filed to initiate the eiril aetion. it is not. feasible for the attorney general of a State to pro- vide the notifieat-ion required by elanse i) before initiating a eiiril aetion under para? graph (1), the attorney Le?eneral shall noti?r the Commission immediately upon insti~ tilting the civil aetion. INTERVENTION BY FEDERAL TRADE intervene in an}; eivil aetion brought by the attorney general of a State under paragraph (1) against a person de- serihed in subseetion and {ii} upon mien-Tennis:? (I) he heard on all matters aris- ing in the eiril aetion; and 8 1 (11) file petitions for appeal of a 2 decision in the civil action. 3 Immsrios'rosr in this 4 subsection may be construed to prevent the attorneyr 5 general. of a State from exercising the powers com 6 'f'erred on the attorney general by the laws of the 7 State to conduct- investigations, to administer oaths 8 or affirmations, or to compei the attendance of wit? 9 ncsses or the production of document-ans or other 10 evidence. 11 Feast-nitride action at FEDERAL TRADE 12 the Federal Trade Commission in- 13 stitutes a civil action or an administrative. action 14 with respect to a violation of subsection the at? 15 torney general of a State may not, during the pend? 16 encjr of such action, bring- a civil action undo-r para- 17 graph (1) against any defendant named in the 0.0111" 18 plaint of the Commission for the violation with re?- 19 spect to which the Commission instituted such ac? 20 tion. 21 (5) SERVICE or 22 (A) Any action brought under 23 paragraph (1) ma}r be brought in? 24 the. district court of the United 25 States that meets applicalziie requirements November 2015 (1:23" pm.) SALE GUN i3 NDM EN shun] 9 1 relating to venue under seetion 1391 of 2 title. 28, United States Code; or 3 {ii} another eourt of competent juris? 4 tlietion. 5 (B) SERVICE or In an aetion 6 brought under paragraph (1), proeess may be 7' served in any rlistriet in which the defendant? 8 is an inhabitant; or 9 (ii) may he fountl. 10 (6) newness er oTnEa srara osrienms. 11 (A) IN addition to eiril ae- 12 tions brought by attorneys general under para? 13 graph amT other officer of a State who is 14 authorized by the State to do so may bring a 15 eiril aetion under paragraph (1), subject to the 16 same requirements and limitations that apply 17 under this subseetion to eir-ril aetions brought by 18 attorneys general. 19 (B) in this 20 snbseetion ma].r be construed to prohibit an au? 21 thorized offieial of a State from initiating or 22 eontinuing any in a eonrt of the 23 State for a ViOl?thl?l of any eiril or criminal law 24 of the State. November 2015 pm.) ?lilhm'IENl'?IE 1 0 EDUCATION axn FUR BUSINESSES. Not later than 60 days after the [late of the enactment- of this Act, the. Commission shall commence conducting education and outreach that provides businesses with non- binding best practices for compliance with this Act. To STATE CAUSES on Nothing in this seetion shall he eonstmed to affeet any cause of action brought by a person that exists or may WWHJUNUI-PDJN exist under Eltate law. p-z EFFECTIVE section shall take ef- [pa?L feet on the date of the enactment of this Act, except. that La) (1) subsections and shall apply with re* H4 spect to contracts in effect on or after the date that LA is 90 days after the. (late of the enactment of this )n?L UN Act; and .4 subseetions (ti) and shall apply with re? p?a DO spect to eontracts in. effect on or after the date that- pun is 1 year after the date of the enactment of this Act. November 2315 pm.)