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JILT 1999 (1) - Leif Gamertsfelder

51 technical & legal Y2K experts (50 from the US & 1 from UK)

The Year 2000 Legal Guide

Bowne & Co Inc, New York US$ 199
360pp (looseleaf) ISBN 1-886100-12-8

Reviewed by
Leif Gamertsfelder
Deacons Graham & James, Australia
Leif.Gamertsfelder@dgj.com.au


Contents

1.

Introduction

2.

Audits

3.

Remediation

4.

Vendor Liability

5.

Insurance

6.

Securities Disclosures

7.

Litigation Prevention

8.

Copyright, Patent or Trade Secret Law

9.

Employment Law

10.

Tax, Banking, Mergers & Acquisitions

11.

International

12.

Conclusion


 


1. Introduction

The Year 2000 Legal Guide is one of the first works to comprehensively address the legal issues associated with the Y2K problem and is a worthy addition to any legal library. While some chapters lack sufficient references and detail the text will generally educate the uninitiated and test an expert's knowledge in relation to the whole ambit of Y2K legal issues.

The work contains 16 sections, comprising a total of 59 chapters. The first section provides a concise technical and legal overview of the Y2K problem. This section prepares the reader for the thorough examination of specific issues that follow. However, Chapter A5, entitled 'Web sites that help lawyers fight the Year 2000 Problem', is a misnomer in that it only consists of 2 ¼ pages of Internet links to Y2K related sites. This would more appropriately constitute an annexure to the work as it sits awkwardly in its current position. This type of problem occurs in other sections of the work and will hopefully be remedied in updates of the looseleaf work.

2. Audits

Section B covers in detail the importance of Y2K audits. This is a crucial area because of all the associated issues that impact on Y2K compliance. Although the discussion in this section is premised on US law, it is a good review of hardware (including embedded systems), software, internal and external compliance issues as well as disclosure and reporting requirements.

3. Remediation

The focus of the work then shifts to remediation in Section C. The first chapter in this section discusses the issue of contracting for external Y2K remediation in detail. While the two following chapters address associated issues, such as liability for the remediation work that external contractors perform under copyright and tort laws, they unfortunately contain little coverage of contractual issues. However, if the reader persists she will find that these issues are covered elsewhere. The final chapter in this section examines the legal implications of performing remediation services offshore from the US such as choice of law, jurisdiction and export control issues. Important issues that receive little coverage in most Y2K publications.

4. Vendor Liability

Vendor liability for the cost of fixing non-compliant hardware and software is investigated in Section D. This is a topic that dominates much of the current debate regarding Y2K liability and given this factor could have received more attention in this section. However, the basic issues are covered and chapter 6 is a Y2K compliance agreement that provides a useful starting point for those involved in drafting Y2K agreements even though it is not drafted in plain English.

5. Insurance

Inextricably linked to liability are issues regarding insurance, which are covered in Section E. The question of whether particular insurance policies cover Y2K events forms the bulk of the section and includes a discussion of insurance policies for directors and officers. This section links well with Section F, which explores directors and officers liabilities for action or inaction regarding Y2K problems.

6. Securities Disclosures

Section G, which examines securities disclosures, is by far the largest section of the book. It looks at the situation in respect of the framework provided by the Securities and Exchange Commission ('SEC') for Y2K disclosures and set out at in 55 pages disclosures made by numerous US public companies, including Intel, Coca Cola and Boeing. Somewhat belatedly, the following chapter then discusses disclosure requirements under US Federal law. The remainder of the section includes a rather mundane trek through documents relating to disclosures by US public Companies authored by the SEC. However, the foreword to the work points out that this is amongst other things a 'practical resource' and one should not expect all of its sections to stimulate academic bents.

7. Litigation Prevention

A good analysis of litigation prevention and preparation issues forms Section H. This is one section that is of crucial importance however the section falters in that the coverage of the law is necessarily limited to each of the author's own knowledge and experience which produces a patchwork effect with respect to the conclusions one can draw from the chapters. Despite this, the section does generally cover the main issues under contract and negligence law and issues such as statutes of limitation but does not sufficiently investigate the impact of fair trading legislation or the potential impact of the draft UCC Article 2B on licence issues.

8. Copyright, Patent or Trade Secret Law

Given that anything that is the subject of the Y2K problem is going to be the affected by copyright, patent or trade secret law, it is appropriate that 16 pages of the work are dedicated to the impact of these laws on remediation strategies in Section J.

9. Employment Law

Section K is an example of the wide coverage of the work. This section investigates the impact of employment law on practices relating to the employment of IT personnel in the Y2K remediation industry. While these issues are not generally discussed in Y2K forums, they are relevant and worthy of inclusion in a work that will appeal to many corporate counsel or managers in the IT industry.

10. Tax, Banking, Mergers & Acquisitions

Important tax, banking, mergers and acquisitions considerations are examined in the next 2 sections and provide the reader with some insightful suggestions with respect to those issues.

11. International

Ironically, the penultimate section is entitled: 'International'. However, the section looks only at the law in the United Kingdom. In view of the fact that Y2K is a global problem, hopefully future editions will incorporate a truly international section.

12. Conclusion

The release date of the work apparently precluded it from incorporating a section on the US Year 2000 Information and Readiness Disclosure Act and similar legislation being considered in other Jurisdictions such as Australia. This situation needs to be addressed considering the importance of this legislation.

One should note that while the work covers most Y2K issues comprehensively, individual issues are not dealt with comprehensively in discrete sections. In many cases relevant information on individual topics is spread throughout the work. For instance, intellectual property issues are dealt with in a number of different sections despite the existence of a section dedicated to the topic. However, this is more of a point about convenience rather than substance and the substantive issues receive adequate coverage if one reads the whole work. Indeed, in some respects the readers will find the index addresses this convenience issue as it assists in navigating the work. Although, considering the length of the work, it may also have been useful to include a table of cases and legislation for easier legal reference.

In summary one should keep in mind that the Y2K problem requires one to be fully informed and this work certainly contains adequate information. Upon reading the complete work one will be equipped with the knowledge to determine with some clarity whether a third party, insurer or company director (or a combination of these persons) may be liable for any cost or damage associated with the Y2K problem.


This is a Book Review published on 26 February 1999.

Citation: Gamertsfelder L, 'The Year 2000 Legal Guide', Book Review, 1999 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-1/gamert.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_1/gamertsfelder2/>


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