A. 3915--A 2
(D) "MANUFACTURE" MEANS DIRECTLY TO MANUFACTURE, PRODUCE OR ASSEMBLE
AN ARTICLE OR PRODUCT SUBJECT TO THE PROVISIONS OF SUBDIVISION TWO OF
THIS SECTION, IN WHOLE OR SUBSTANTIAL PART, BUT DOES NOT INCLUDE
CONTRACTING WITH OR OTHERWISE ENGAGING ANOTHER PERSON, OR THAT PERSON
ENGAGING ANOTHER PERSON, TO DEVELOP, MANUFACTURE, PRODUCE OR ASSEMBLE AN
ARTICLE OR PRODUCT SUBJECT TO THE PROVISIONS OF SUBDIVISION TWO OF THIS
SECTION.
(E) "MATERIAL COMPETITIVE INJURY" MEANS AT LEAST A THREE PERCENT
RETAIL PRICE DIFFERENCE BETWEEN THE ARTICLE OR PRODUCT MADE IN VIOLATION
OF SUBDIVISION TWO OF THIS SECTION DESIGNED TO HARM COMPETITION AND A
DIRECTLY COMPETING ARTICLE OR PRODUCT THAT WAS MANUFACTURED WITHOUT THE
USE OF STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY, SUCH PRICE
DIFFERENCE OCCURRING OVER A FOUR-MONTH PERIOD OF TIME.
(F) "RETAIL PRICE" OF STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY
IS THE RETAIL PRICE OF THE INFORMATION TECHNOLOGY CHARGED AT THE TIME
OF, AND IN THE JURISDICTION WHERE, THE ALLEGED THEFT OR MISAPPROPRIATION
OCCURRED, MULTIPLIED BY THE NUMBER OF STOLEN OR MISAPPROPRIATED ITEMS
USED IN THE BUSINESS OPERATIONS OF THE PERSON ALLEGED TO HAVE VIOLATED
SUBDIVISION TWO OF THIS SECTION.
(G) "STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY" MEANS HARDWARE
OR SOFTWARE THAT THE PERSON REFERRED TO IN SUBDIVISION TWO OF THIS
SECTION ACQUIRED, APPROPRIATED OR USED WITHOUT THE AUTHORIZATION OF THE
OWNER OF THE INFORMATION TECHNOLOGY OR THE OWNER'S AUTHORIZED LICENSEE
IN VIOLATION OF APPLICABLE LAW, BUT DOES NOT INCLUDE SITUATIONS IN WHICH
THE HARDWARE OR SOFTWARE ALLEGED TO HAVE BEEN STOLEN OR MISAPPROPRIATED
WAS NOT AVAILABLE FOR RETAIL PURCHASE ON A STANDALONE BASIS AT OR BEFORE
THE TIME IT WAS ACQUIRED, APPROPRIATED OR USED BY SUCH PERSON.
2. UNLAWFUL ACT. ANY PERSON WHO MANUFACTURES ANY ARTICLE OR PRODUCT
WHILE USING STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY IN ITS
BUSINESS OPERATIONS AFTER NOTICE AND OPPORTUNITY TO CURE AS PROVIDED IN
SUBDIVISION FIVE OF THIS SECTION AND, WITH RESPECT TO REMEDIES SOUGHT
UNDER PARAGRAPH (E) OF SUBDIVISION SIX OF THIS SECTION OR SUBDIVISION
SEVEN OF THIS SECTION, CAUSES A MATERIAL COMPETITIVE INJURY AS A RESULT
OF SUCH USE OF STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY, SHALL
BE DEEMED TO ENGAGE IN AN UNFAIR ACT WHERE SUCH ARTICLE OR PRODUCT IS
SOLD OR OFFERED FOR SALE IN THIS STATE, EITHER SEPARATELY OR AS A COMPO-
NENT OF ANOTHER ARTICLE OR PRODUCT, AND IN COMPETITION WITH AN ARTICLE
OR PRODUCT SOLD OR OFFERED FOR SALE IN THIS STATE THAT WAS MANUFACTURED
WITHOUT VIOLATING THIS PROVISION. ANY PERSON WHO ENGAGES IN SUCH UNFAIR
ACT, AND ANY ARTICLES OR PRODUCTS MANUFACTURED BY SUCH PERSON IN
VIOLATION OF THIS PROVISION, SHALL BE SUBJECT TO THE LIABILITIES AND
REMEDIAL PROVISIONS OF THIS SECTION IN AN ACTION BY THE ATTORNEY GENERAL
OR ANY PERSON DESCRIBED IN PARAGRAPH (D) OF SUBDIVISION SIX OF THIS
SECTION. FOR THE PURPOSES OF THIS SECTION, INFORMATION TECHNOLOGY SHALL
BE CONSIDERED TO BE USED IN A PERSON'S BUSINESS OPERATIONS IF THE PERSON
USES SUCH TECHNOLOGY IN THE MANUFACTURE, DISTRIBUTION, MARKETING OR
SALES OF THE ARTICLES OR PRODUCTS SUBJECT TO THIS SECTION.
3. LIMITATIONS. NO ACTION MAY BE BROUGHT PURSUANT TO THE PROVISIONS OF
THIS SECTION, AND NO LIABILITY SHALL RESULT, WHERE: (A) THE END ARTICLE
OR END PRODUCT SOLD OR OFFERED FOR SALE IN THIS STATE AND ALLEGED TO
VIOLATE SUBDIVISION TWO OF THIS SECTION IS: (1) A COPYRIGHTABLE END
PRODUCT; (2) MERCHANDISE MANUFACTURED BY OR ON BEHALF OF, OR PURSUANT TO
A LICENSE FROM, A COPYRIGHT OWNER AND WHICH DISPLAYS OR EMBODIES A NAME,
CHARACTER, ARTWORK OR OTHER INDICIA OF OR FROM A WORK THAT FALLS WITHIN
SUBPARAGRAPH ONE OF THIS PARAGRAPH, OR MERCHANDISE MANUFACTURED BY OR ON
BEHALF OF, OR PURSUANT TO A LICENSE FROM, A COPYRIGHT OR TRADEMARK OWNER
A. 3915--A 3
AND WHICH DISPLAYS OR EMBODIES A NAME, CHARACTER, ARTWORK OR OTHER INDI-
CIA OF OR FROM A THEME PARK, THEME PARK ATTRACTION OR OTHER FACILITY
ASSOCIATED WITH A THEME PARK; OR (3) PACKAGING, CARRIER MEDIA OR PROMO-
TIONAL OR ADVERTISING MATERIALS FOR ANY END ARTICLE, END PRODUCT OR
MERCHANDISE THAT FALLS WITHIN SUBPARAGRAPH ONE OR TWO OF THIS PARAGRAPH;
(B) THE ALLEGATION THAT THE INFORMATION TECHNOLOGY IS STOLEN OR MISAP-
PROPRIATED IS BASED ON A CLAIM THAT (1) THE INFORMATION TECHNOLOGY OR
ITS USE INFRINGES A PATENT OR MISAPPROPRIATES A TRADE SECRET UNDER
APPLICABLE LAW, OR (2) COULD BE BROUGHT UNDER ANY PROVISION OF TITLE 35
OF THE UNITED STATES CODE;
(C) THE ALLEGATION THAT THE INFORMATION TECHNOLOGY IS STOLEN OR MISAP-
PROPRIATED IS BASED ON A CLAIM THAT THE DEFENDANT'S USE OF THE INFORMA-
TION TECHNOLOGY VIOLATES THE TERMS OF A LICENSE THAT ALLOWS USERS TO
MODIFY AND REDISTRIBUTE ANY SOURCE CODE ASSOCIATED WITH THE TECHNOLOGY
FREE OF CHARGE; OR
(D) THE ALLEGATION IS BASED ON A CLAIM THAT THE PERSON VIOLATED THE
PROVISIONS OF SUBDIVISION TWO OF THIS SECTION BY AIDING, ABETTING,
FACILITATING OR ASSISTING SOMEONE ELSE TO ACQUIRE, APPROPRIATE, USE,
SELL OR OFFER TO SELL, OR BY PROVIDING SOMEONE ELSE WITH ACCESS TO,
INFORMATION TECHNOLOGY WITHOUT AUTHORIZATION OF THE OWNER OF SUCH INFOR-
MATION TECHNOLOGY OR THE OWNER'S AUTHORIZED LICENSEE IN VIOLATION OF
APPLICABLE LAW.
4. INJUNCTION. NO INJUNCTION MAY ISSUE AGAINST A PERSON OTHER THAN THE
PERSON ADJUDICATED TO HAVE VIOLATED SUBDIVISION TWO OF THIS SECTION, AND
NO ATTACHMENT ORDER MAY ISSUE AGAINST ARTICLES OR PRODUCTS OTHER THAN
ARTICLES OR PRODUCTS IN WHICH THE PERSON ALLEGED TO VIOLATE SUBDIVISION
TWO OF THIS SECTION HOLDS TITLE. A PERSON OTHER THAN THE PERSON ALLEGED
TO VIOLATE SUBDIVISION TWO OF THIS SECTION INCLUDES ANY PERSON OTHER
THAN THE ACTUAL MANUFACTURER WHO CONTRACTS WITH OR OTHERWISE ENGAGES
ANOTHER PERSON TO DEVELOP, MANUFACTURE, PRODUCE, MARKET, DISTRIBUTE,
ADVERTISE OR ASSEMBLE AN ARTICLE OR PRODUCT ALLEGED TO VIOLATE SUBDIVI-
SION TWO OF THIS SECTION.
5. NOTICE. (A) NO ACTION MAY BE BROUGHT UNDER SUBDIVISION TWO OF THIS
SECTION UNLESS THE PERSON SUBJECT TO SUCH SUBDIVISION RECEIVED WRITTEN
NOTICE OF THE ALLEGED USE OF THE STOLEN OR MISAPPROPRIATED INFORMATION
TECHNOLOGY FROM THE OWNER OR EXCLUSIVE LICENSEE OF THE INFORMATION TECH-
NOLOGY OR THE OWNER'S AGENT AND THE PERSON: (1) FAILED TO ESTABLISH THAT
ITS USE OF THE INFORMATION TECHNOLOGY IN QUESTION DID NOT VIOLATE SUBDI-
VISION TWO OF THIS SECTION; OR (2) FAILED, WITHIN NINETY DAYS AFTER
RECEIVING SUCH NOTICE, TO CEASE USE OF THE OWNER'S STOLEN OR MISAPPRO-
PRIATED INFORMATION TECHNOLOGY, PROVIDED, IF THE PERSON COMMENCES AND
THEREAFTER PROCEEDS DILIGENTLY TO REPLACE SUCH INFORMATION TECHNOLOGY
WITH INFORMATION TECHNOLOGY WHOSE USE WOULD NOT VIOLATE SUBDIVISION TWO
OF THIS SECTION, SUCH PERIOD SHALL BE EXTENDED FOR AN ADDITIONAL PERIOD
OF NINETY DAYS, BUT WHICH MAY NOT EXCEED ONE HUNDRED EIGHTY DAYS IN
TOTAL.
(B) IN ORDER TO SATISFY THE REQUIREMENTS OF THIS SUBDIVISION, A WRIT-
TEN NOTICE MUST, UNDER PENALTY OF PERJURY: (1) IDENTIFY THE STOLEN OR
MISAPPROPRIATED INFORMATION TECHNOLOGY; (2) IDENTIFY THE LAWFUL OWNER OR
EXCLUSIVE LICENSEE OF THE INFORMATION TECHNOLOGY; (3) IDENTIFY THE
APPLICABLE LAW THE PERSON IS ALLEGED TO BE VIOLATING AND STATE THAT THE
NOTIFIER HAS A REASONABLE BELIEF THAT THE PERSON HAS ACQUIRED, APPROPRI-
ATED OR USED THE INFORMATION TECHNOLOGY IN QUESTION WITHOUT AUTHORI-
ZATION OF THE OWNER OF THE INFORMATION TECHNOLOGY OR THE OWNER'S AUTHOR-
IZED LICENSEE IN VIOLATION OF SUCH APPLICABLE LAW; (4) TO THE EXTENT
KNOWN BY THE NOTIFIER, STATE THE MANNER IN WHICH SUCH INFORMATION TECH-
A. 3915--A 4
NOLOGY IS BEING USED BY THE DEFENDANT; (5) STATE THE ARTICLES OR
PRODUCTS TO WHICH SUCH INFORMATION TECHNOLOGY RELATES; AND (6) SPECIFY
THE BASIS AND THE PARTICULAR EVIDENCE UPON WHICH THE NOTIFIER BASES SUCH
ALLEGATION.
(C) THE WRITTEN NOTIFICATION SHALL STATE, UNDER PENALTY OF PERJURY,
THAT, AFTER A REASONABLE AND GOOD-FAITH INVESTIGATION, THE INFORMATION
IN THE NOTICE IS ACCURATE BASED ON THE NOTIFIER'S REASONABLE KNOWLEDGE,
INFORMATION AND BELIEF.
6. ACTIONS. (A) NO EARLIER THAN NINETY DAYS AFTER THE PROVISION OF
NOTICE IN ACCORDANCE WITH SUBDIVISION FIVE OF THIS SECTION, THE ATTORNEY
GENERAL, OR A PERSON DESCRIBED IN PARAGRAPH (D) OF THIS SUBDIVISION, MAY
BRING AN ACTION AGAINST ANY PERSON THAT IS SUBJECT TO THE PROVISIONS OF
SUBDIVISION TWO OF THIS SECTION:
(1) TO ENJOIN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, INCLUDING
ENJOINING SUCH PERSON FROM SELLING OR OFFERING TO SELL IN THIS STATE
ARTICLES OR PRODUCTS THAT ARE SUBJECT TO THE PROVISIONS OF SUBDIVISION
TWO OF THIS SECTION, EXCEPT AS PROVIDED IN PARAGRAPH (E) OF THIS SUBDI-
VISION; PROVIDED THAT NO SUCH INJUNCTION SHALL ENCOMPASS ARTICLES OR
PRODUCTS TO BE PROVIDED TO A THIRD PARTY THAT ESTABLISHES THAT SUCH
THIRD PARTY HAS SATISFIED ONE OR MORE OF THE AFFIRMATIVE DEFENSES SET
FORTH IN PARAGRAPH (A) OF SUBDIVISION EIGHT OF THIS SECTION WITH RESPECT
TO THE MANUFACTURER ALLEGED TO HAVE VIOLATED SUBDIVISION TWO OF THIS
SECTION; OR
(2) ONLY AFTER A DETERMINATION BY THE COURT THAT THE PERSON HAS
VIOLATED SUBDIVISION TWO OF THIS SECTION, TO RECOVER THE GREATER OF:
(A) ACTUAL DIRECT DAMAGES, WHICH MAY BE IMPOSED ONLY AGAINST THE
PERSON WHO VIOLATED SUBDIVISION TWO OF THIS SECTION; OR
(B) STATUTORY DAMAGES OF NO MORE THAN THE RETAIL PRICE OF THE STOLEN
OR MISAPPROPRIATED INFORMATION TECHNOLOGY, WHICH MAY BE IMPOSED ONLY
AGAINST THE PERSON WHO VIOLATED SUBDIVISION TWO OF THIS SECTION.
(3) IN THE EVENT THE PERSON ALLEGED TO HAVE VIOLATED SUBDIVISION TWO
OF THIS SECTION HAS BEEN SUBJECT TO A FINAL JUDGMENT OR HAS ENTERED INTO
A FINAL SETTLEMENT, OR ANY PRODUCTS MANUFACTURED BY SUCH PERSON AND
ALLEGED TO VIOLATE SUBDIVISION TWO OF THIS SECTION HAVE BEEN THE SUBJECT
OF AN INJUNCTION OR ATTACHMENT ORDER, IN ANY FEDERAL OR STATE COURT IN
THIS STATE OR ANY OTHER STATE, ARISING OUT OF THE SAME THEFT OR MISAP-
PROPRIATION OF INFORMATION TECHNOLOGY, THE COURT SHALL DISMISS THE
ACTION WITH PREJUDICE. IF SUCH PERSON IS A DEFENDANT IN AN ONGOING
ACTION, OR ANY PRODUCTS MANUFACTURED BY SUCH PERSON AND ALLEGED TO
VIOLATE SUBDIVISION TWO OF THIS SECTION ARE THE SUBJECT OF AN ONGOING
INJUNCTION OR ATTACHMENT ORDER, IN ANY FEDERAL OR STATE COURT IN THIS
STATE OR ANY OTHER STATE, ARISING OUT OF THE SAME THEFT OR MISAPPROPRI-
ATION OF INFORMATION TECHNOLOGY, THE COURT SHALL STAY THE ACTION AGAINST
SUCH PERSON PENDING RESOLUTION OF THE OTHER ACTION. IN THE EVENT THE
OTHER ACTION RESULTS IN A FINAL JUDGMENT OR FINAL SETTLEMENT, THE COURT
SHALL DISMISS THE ACTION WITH PREJUDICE AGAINST THE PERSON. DISMISSALS
UNDER THIS SECTION SHALL BE RES JUDICATA TO ACTIONS FILED AGAINST THE
PERSON ALLEGED TO HAVE VIOLATED SUBDIVISION TWO OF THIS SECTION ARISING
OUT OF THE SAME THEFT OR MISAPPROPRIATION OF INFORMATION TECHNOLOGY.
(B) (1) AFTER DETERMINATION BY THE COURT THAT A PERSON HAS VIOLATED
THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION AND ENTRY OF A JUDG-
MENT AGAINST THE PERSON FOR VIOLATING THE PROVISIONS OF SUCH SUBDIVI-
SION, THE ATTORNEY GENERAL, OR A PERSON DESCRIBED IN PARAGRAPH (D) OF
THIS SUBDIVISION, MAY ADD TO THE ACTION A CLAIM FOR ACTUAL DIRECT
DAMAGES AGAINST A THIRD PARTY WHO SELLS OR OFFERS TO SELL IN THIS STATE
ARTICLES OR PRODUCTS MADE BY THAT PERSON IN VIOLATION OF SUBDIVISION TWO
A. 3915--A 5
OF THIS SECTION, SUBJECT TO THE PROVISIONS OF SUBDIVISION EIGHT OF THIS
SECTION; PROVIDED, DAMAGES MAY BE IMPOSED AGAINST A THIRD PARTY ONLY IF:
(A) THE THIRD PARTY'S AGENT FOR SERVICE OF PROCESS PROPERLY WAS SERVED
WITH A COPY OF A WRITTEN NOTICE SENT TO THE PERSON ALLEGED TO HAVE
VIOLATED SUBDIVISION TWO OF THIS SECTION THAT SATISFIES THE REQUIREMENTS
OF SUBDIVISION FIVE OF THIS SECTION AT LEAST NINETY DAYS PRIOR TO THE
ENTRY OF THE JUDGMENT;
(B) THE PERSON WHO VIOLATED SUBDIVISION TWO OF THIS SECTION DID NOT
MAKE AN APPEARANCE OR DOES NOT HAVE SUFFICIENT ATTACHABLE ASSETS TO
SATISFY A JUDGMENT AGAINST THE PERSON;
(C) SUCH PERSON EITHER MANUFACTURED THE FINAL ARTICLE OR PRODUCT OR
PRODUCED A COMPONENT EQUAL TO THIRTY PERCENT OR MORE OF THE VALUE OF THE
FINAL ARTICLE OR PRODUCT;
(D) SUCH PERSON HAS A DIRECT CONTRACTUAL RELATIONSHIP WITH THE THIRD
PARTY RESPECTING THE MANUFACTURE OF SUCH FINAL ARTICLE OR PRODUCT OR
COMPONENT; AND
(E) THE THIRD PARTY HAS NOT BEEN SUBJECT TO A FINAL JUDGMENT OR
ENTERED INTO A FINAL SETTLEMENT IN ANY FEDERAL OR STATE COURT IN THIS
STATE OR ANY OTHER STATE ARISING OUT OF THE SAME THEFT OR MISAPPROPRI-
ATION OF INFORMATION TECHNOLOGY; PROVIDED, HOWEVER, THAT IN THE EVENT
THE THIRD PARTY IS A PARTY TO AN ONGOING SUIT FOR DAMAGES, OR HAS
ENTERED AN APPEARANCE AS AN INTERESTED THIRD PARTY IN PROCEEDINGS IN
REM, IN ANY FEDERAL OR STATE COURT IN THIS STATE OR ANY OTHER STATE
ARISING OUT OF THE SAME THEFT OR MISAPPROPRIATION OF INFORMATION TECH-
NOLOGY, THE COURT SHALL STAY THE ACTION AGAINST THE THIRD PARTY PENDING
RESOLUTION OF THE OTHER ACTION. IN THE EVENT THE OTHER ACTION RESULTS IN
A FINAL JUDGMENT, THE COURT SHALL DISMISS THE ACTION WITH PREJUDICE
AGAINST THE THIRD PARTY AND DISMISS ANY IN REM ACTION AS TO ANY ARTICLES
OR PRODUCTS MANUFACTURED FOR SUCH THIRD PARTY OR THAT HAVE BEEN OR ARE
TO BE SUPPLIED TO SUCH THIRD PARTY. DISMISSALS UNDER THIS SECTION SHALL
BE RES JUDICATA TO ACTIONS FILED AGAINST THE PERSON ALLEGED TO HAVE
VIOLATED SUBDIVISION TWO OF THIS SECTION ARISING OUT OF THE SAME THEFT
OR MISAPPROPRIATION OF INFORMATION TECHNOLOGY.
(2) AN AWARD OF DAMAGES AGAINST SUCH THIRD PARTY PURSUANT TO SUBPARA-
GRAPH ONE OF THIS PARAGRAPH SHALL BE THE LESSER OF THE RETAIL PRICE OF
THE STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY AT ISSUE OR TWO
HUNDRED FIFTY THOUSAND DOLLARS, LESS ANY AMOUNTS RECOVERED FROM THE
PERSON ADJUDICATED TO HAVE VIOLATED SUBDIVISION TWO OF THIS SECTION, AND
THE PROVISIONS OF SUBPARAGRAPH ONE OF PARAGRAPH (C) OF THIS SUBDIVISION
SHALL NOT APPLY TO SUCH AWARD OR RECOVERY AGAINST SUCH THIRD PARTY.
(C) IN AN ACTION UNDER THIS SECTION, A COURT MAY:
(1) IMPOSE TREBLE DAMAGES WHERE THE COURT FINDS THAT THE PERSON'S USE
OF THE STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY WAS WILLFUL;
(2) WITH RESPECT TO AN AWARD UNDER PARAGRAPH (A) OF THIS SUBDIVISION
ONLY, AWARD COSTS AND REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAIN-
TIFF IN ACTIONS BROUGHT BY AN INJURED PERSON PURSUANT TO SUBDIVISION TWO
OF THIS SECTION; OR A PREVAILING DEFENDANT IN ACTIONS BROUGHT BY AN
ALLEGEDLY INJURED PERSON; AND
(3) WITH RESPECT TO AN ACTION UNDER PARAGRAPH (B) OF THIS SUBDIVISION
BROUGHT BY A PRIVATE PLAINTIFF ONLY, AWARD COSTS AND REASONABLE ATTOR-
NEY'S FEES TO A THIRD PARTY FOR ALL LITIGATION EXPENSES (INCLUDING,
WITHOUT LIMITATION, DISCOVERY EXPENSES) INCURRED BY THAT PARTY IF IT
PREVAILS ON THE REQUIREMENT SET FORTH IN CLAUSE (C) OF SUBPARAGRAPH ONE
OF PARAGRAPH (B) OF THIS SUBDIVISION OR WHO QUALIFIES FOR AN AFFIRMATIVE
DEFENSE UNDER SUBDIVISION EIGHT OF THIS SECTION; PROVIDED, IN A CASE IN
WHICH THE THIRD PARTY RECEIVED A COPY OF THE NOTIFICATION DESCRIBED IN
A. 3915--A 6
CLAUSE (A) OF SUBPARAGRAPH ONE OF PARAGRAPH (B) OF THIS SUBDIVISION AT
LEAST NINETY DAYS BEFORE THE FILING OF THE ACTION UNDER PARAGRAPH (B) OF
THIS SUBDIVISION, THAT WITH RESPECT TO A THIRD PARTY'S RELIANCE ON THE
AFFIRMATIVE DEFENSES SET FORTH IN SUBPARAGRAPHS THREE AND FOUR OF PARA-
GRAPH (A) OF SUBDIVISION EIGHT OF THIS SECTION, THE COURT MAY AWARD
COSTS AND REASONABLE ATTORNEY'S FEES ONLY IF ALL OF THE CONDUCT ON WHICH
THE AFFIRMATIVE DEFENSE IS BASED WAS UNDERTAKEN BY THE THIRD PARTY, AND
THE THIRD PARTY NOTIFIED THE PLAINTIFF OF SUCH CONDUCT, PRIOR TO THE END
OF SUCH NINETY DAY PERIOD.
(D) A PERSON SHALL BE DEEMED TO HAVE BEEN INJURED BY THE SALE OR OFFER
FOR SALE OF A DIRECTLY COMPETING ARTICLE OR PRODUCT SUBJECT TO THE
PROVISIONS OF SUBDIVISION TWO OF THIS SECTION IF THE PERSON ESTABLISHES
BY A PREPONDERANCE OF THE EVIDENCE THAT:
(1) THE PERSON MANUFACTURES ARTICLES OR PRODUCTS THAT ARE SOLD OR
OFFERED FOR SALE IN THIS STATE IN DIRECT COMPETITION WITH ARTICLES OR
PRODUCTS THAT ARE SUBJECT TO SUBDIVISION TWO OF THIS SECTION;
(2) THE PERSON'S ARTICLES OR PRODUCTS WERE NOT MANUFACTURED USING
STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY OF THE OWNER OF THE
INFORMATION TECHNOLOGY;
(3) THE PERSON SUFFERED ECONOMIC HARM, WHICH MAY BE SHOWN BY EVIDENCE
THAT THE RETAIL PRICE OF THE STOLEN OR MISAPPROPRIATED INFORMATION TECH-
NOLOGY WAS TWENTY THOUSAND DOLLARS OR MORE; AND
(4) IF THE PERSON IS PROCEEDING IN REM OR SEEKS INJUNCTIVE RELIEF,
THAT THE PERSON SUFFERED MATERIAL COMPETITIVE INJURY AS A RESULT OF THE
VIOLATION OF SUBDIVISION TWO OF THIS SECTION.
(E) (1) IF THE COURT DETERMINES THAT A PERSON FOUND TO HAVE VIOLATED
THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION LACKS SUFFICIENT
ATTACHABLE ASSETS IN THIS STATE TO SATISFY A JUDGMENT RENDERED AGAINST
IT, THE COURT MAY ENJOIN THE SALE OR OFFERING FOR SALE IN THIS STATE OF
ANY ARTICLES OR PRODUCTS SUBJECT TO SUBDIVISION TWO OF THIS SECTION,
EXCEPT AS PROVIDED IN SUBDIVISION FOUR OF THIS SECTION.
(2) TO THE EXTENT THAT AN ARTICLE OR PRODUCT SUBJECT TO THE PROVISIONS
OF SUBDIVISION TWO OF THIS SECTION IS AN ESSENTIAL COMPONENT OF A THIRD
PARTY'S ARTICLE OR PRODUCT, THE COURT SHALL DENY INJUNCTIVE RELIEF AS TO
SUCH ESSENTIAL COMPONENT, PROVIDED THAT THE THIRD PARTY HAS UNDERTAKEN
GOOD-FAITH EFFORTS WITHIN THE THIRD PARTY'S RIGHTS UNDER ITS APPLICABLE
CONTRACT WITH SUCH MANUFACTURER TO DIRECT THE MANUFACTURER OF THE ESSEN-
TIAL COMPONENT TO CEASE THE THEFT OR MISAPPROPRIATION OF INFORMATION
TECHNOLOGY IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, WHICH MAY BE
SATISFIED, WITHOUT LIMITATION, BY THE THIRD PARTY ISSUING A WRITTEN
DIRECTIVE TO THE MANUFACTURER DEMANDING THAT IT CEASE SUCH THEFT OR
MISAPPROPRIATION AND DEMANDING THAT THE MANUFACTURER PROVIDE THE THIRD
PARTY WITH COPIES OF INVOICES, PURCHASE ORDERS, LICENSES, OR OTHER
VERIFICATION OF LAWFUL USE OF THE INFORMATION TECHNOLOGY AT ISSUE.
(F) THE COURT SHALL DETERMINE WHETHER A CURE PERIOD LONGER THAN THE
PERIOD REFLECTED IN SUBDIVISION FIVE OF THIS SECTION WOULD BE REASONABLE
GIVEN THE NATURE OF THE USE OF THE INFORMATION TECHNOLOGY THAT IS THE
SUBJECT OF THE ACTION AND THE TIME REASONABLY NECESSARY EITHER TO BRING
SUCH USE INTO COMPLIANCE WITH APPLICABLE LAW OR TO REPLACE THE INFORMA-
TION TECHNOLOGY WITH INFORMATION TECHNOLOGY THAT WOULD NOT VIOLATE
SUBDIVISION TWO OF THIS SECTION. IF THE COURT DEEMS THAT A LONGER CURE
PERIOD WOULD BE REASONABLE, THEN THE ACTION SHALL BE STAYED UNTIL THE
END OF THAT LONGER CURE PERIOD. IF BY THE END OF THAT LONGER CURE PERI-
OD, THE DEFENDANT HAS ESTABLISHED THAT ITS USE OF THE INFORMATION TECH-
NOLOGY IN QUESTION DID NOT VIOLATE SUBDIVISION TWO OF THIS SECTION, OR
A. 3915--A 7
THE DEFENDANT CEASED USE OF THE STOLEN OR MISAPPROPRIATED INFORMATION
TECHNOLOGY, THEN THE ACTION SHALL BE DISMISSED.
7. IN REM ACTIONS. (A) IN A CASE IN WHICH THE COURT IS UNABLE TO
OBTAIN PERSONAL JURISDICTION OVER A PERSON SUBJECT TO SUBDIVISION TWO OF
THIS SECTION, THE COURT MAY PROCEED IN REM AGAINST ANY ARTICLES OR
PRODUCTS SUBJECT TO SUBDIVISION TWO OF THIS SECTION SOLD OR OFFERED FOR
SALE IN THIS STATE IN WHICH THE PERSON ALLEGED TO HAVE VIOLATED SUBDIVI-
SION TWO OF THIS SECTION HOLDS TITLE. EXCEPT AS PROVIDED IN SUBDIVISION
FOUR OF THIS SECTION AND PARAGRAPHS (B), (C) AND (D) OF THIS SUBDIVI-
SION, ALL SUCH ARTICLES OR PRODUCTS SHALL BE SUBJECT TO ATTACHMENT AT OR
AFTER THE TIME OF FILING A COMPLAINT, REGARDLESS OF THE AVAILABILITY OR
AMOUNT OF ANY MONETARY JUDGMENT.
(B) AT LEAST NINETY DAYS PRIOR TO THE ENFORCEMENT OF AN ATTACHMENT
ORDER AGAINST ARTICLES OR PRODUCTS PURSUANT TO PARAGRAPH (A) OF THIS
SUBDIVISION, THE COURT SHALL NOTIFY ANY PERSON IN POSSESSION OF SUCH
ARTICLES OR PRODUCTS OF THE PENDING ATTACHMENT ORDER. PRIOR TO THE EXPI-
RATION OF SUCH NINETY DAY PERIOD, ANY PERSON FOR WHOM THE ARTICLES OR
PRODUCTS WERE MANUFACTURED, OR TO WHOM SUCH ARTICLES OR PRODUCTS HAVE
BEEN OR ARE TO BE SUPPLIED, PURSUANT TO AN EXISTING CONTRACT OR PURCHASE
ORDER, MAY:
(1) ESTABLISH THAT THE PERSON HAS SATISFIED ONE OR MORE OF THE AFFIR-
MATIVE DEFENSES SET FORTH IN PARAGRAPH (A) OF SUBDIVISION EIGHT OF THIS
SECTION WITH RESPECT TO THE MANUFACTURER ALLEGED TO HAVE VIOLATED THE
PROVISIONS OF SUBDIVISION TWO OF THIS SECTION, IN WHICH CASE THE ATTACH-
MENT ORDER SHALL BE DISSOLVED ONLY WITH RESPECT TO THOSE ARTICLES OR
PRODUCTS THAT WERE MANUFACTURED FOR SUCH PERSON, OR HAVE BEEN OR ARE TO
BE SUPPLIED TO SUCH PERSON, PURSUANT TO AN EXISTING CONTRACT OR PURCHASE
ORDER; OR
(2) POST A BOND WITH THE COURT EQUAL TO THE RETAIL PRICE OF THE
ALLEGEDLY STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY OR
TWENTY-FIVE THOUSAND DOLLARS, WHICHEVER IS LESS, IN WHICH CASE THE COURT
SHALL STAY ENFORCEMENT OF THE ATTACHMENT ORDER AGAINST SUCH ARTICLES OR
PRODUCTS AND SHALL PROCEED ON THE BASIS OF ITS JURISDICTION OVER THE
BOND. THE PERSON POSTING THE BOND SHALL RECOVER THE FULL AMOUNT OF SUCH
BOND, PLUS INTEREST, AFTER THE ISSUANCE OF A FINAL JUDGMENT.
(C) IN THE EVENT THE PERSON POSTING THE BOND PURSUANT TO SUBPARAGRAPH
TWO OF PARAGRAPH (B) OF THIS SUBDIVISION IS ENTITLED TO CLAIM AN AFFIR-
MATIVE DEFENSE IN SUBDIVISION EIGHT OF THIS SECTION, AND THAT PERSON
ESTABLISHES WITH THE COURT THAT IT IS ENTITLED TO ANY SUCH AFFIRMATIVE
DEFENSE, THE COURT SHALL AWARD COSTS AND REASONABLE ATTORNEY'S FEES TO
THE PERSON POSTING THE BOND AND AGAINST THE PLAINTIFF IN THE EVENT THE
PLAINTIFF PROCEEDS WITH AN ACTION PURSUANT TO PARAGRAPH (B) OF SUBDIVI-
SION SIX OF THIS SECTION AGAINST THE PERSON POSTING THE BOND.
(D) IN THE EVENT THAT THE COURT DOES NOT PROVIDE NOTIFICATION AS
DESCRIBED IN PARAGRAPH (B) OF THIS SUBDIVISION, THE COURT, UPON MOTION
OF ANY THIRD PARTY, SHALL STAY THE ENFORCEMENT OF THE ATTACHMENT ORDER
FOR NINETY DAYS AS TO ARTICLES OR PRODUCTS MANUFACTURED FOR SUCH THIRD
PARTY, OR THAT HAVE BEEN OR ARE TO BE SUPPLIED TO SUCH THIRD PARTY,
PURSUANT TO AN EXISTING CONTRACT OR PURCHASE ORDER, DURING WHICH NINETY
DAY PERIOD THE THIRD PARTY MAY AVAIL ITSELF OF THE OPTIONS SET FORTH IN
SUBPARAGRAPHS ONE AND TWO OF PARAGRAPH (B) OF THIS SUBDIVISION.
8. LIMITATION ON AWARDS OF DAMAGES. (A) A COURT MAY NOT AWARD DAMAGES
AGAINST ANY THIRD PARTY PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF
THIS SECTION WHERE THAT PARTY, AFTER HAVING BEEN AFFORDED REASONABLE
NOTICE OF AT LEAST NINETY DAYS BY PROPER SERVICE UPON SUCH PARTY'S AGENT
FOR SERVICE OF PROCESS AND OPPORTUNITY TO PLEAD ANY OF THE AFFIRMATIVE
A. 3915--A 8
DEFENSES SET FORTH BELOW, ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE
ANY OF THE FOLLOWING:
(1) SUCH PERSON IS THE END CONSUMER OR END USER OF AN ARTICLE OR PROD-
UCT SUBJECT TO SUBDIVISION TWO OF THIS SECTION, OR ACQUIRED THE ARTICLE
OR PRODUCT AFTER ITS SALE TO AN END CONSUMER OR END USER;
(2) SUCH PERSON IS A BUSINESS WITH ANNUAL REVENUES NOT IN EXCESS OF
FIFTY MILLION DOLLARS;
(3) THE PERSON ACQUIRED THE ARTICLES OR PRODUCTS:
(A) AND HAD EITHER: A CODE OF CONDUCT OR OTHER WRITTEN DOCUMENT
GOVERNING THE PERSON'S COMMERCIAL RELATIONSHIPS WITH THE MANUFACTURER
ADJUDICATED TO HAVE VIOLATED SUBDIVISION TWO OF THIS SECTION AND WHICH
INCLUDES COMMITMENTS, SUCH AS GENERAL COMMITMENTS TO COMPLY WITH APPLI-
CABLE LAWS, THAT PROHIBIT USE OF THE STOLEN OR MISAPPROPRIATED INFORMA-
TION TECHNOLOGY BY SUCH MANUFACTURER; OR WRITTEN ASSURANCES FROM THE
MANUFACTURER OF SUCH ARTICLES OR PRODUCTS THAT SUCH ARTICLES OR
PRODUCTS, TO THE MANUFACTURER'S REASONABLE KNOWLEDGE, WERE MANUFACTURED
WITHOUT THE USE OF STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY IN
THE MANUFACTURER'S BUSINESS OPERATIONS; PROVIDED, WITH RESPECT TO BOTH
THE CODE OF CONDUCT AND THE WRITTEN ASSURANCES FROM THE MANUFACTURER SET
FORTH IN THIS CLAUSE, THAT WITHIN ONE HUNDRED EIGHTY DAYS OF RECEIVING
WRITTEN NOTICE OF THE JUDGMENT AGAINST THE MANUFACTURER FOR VIOLATION OF
SUBDIVISION TWO OF THIS SECTION AND A COPY OF A WRITTEN NOTICE THAT
SATISFIES THE REQUIREMENTS OF SUBDIVISION FIVE OF THIS SECTION, THE
PERSON UNDERTAKES COMMERCIALLY REASONABLE EFFORTS TO DO ANY OF THE
FOLLOWING:
(I) EXCHANGE WRITTEN CORRESPONDENCE CONFIRMING THAT SUCH MANUFACTURER
IS NOT USING SUCH STOLEN OR MISAPPROPRIATED INFORMATION TECHNOLOGY IN
VIOLATION OF SUBDIVISION TWO OF THIS SECTION, WHICH MAY BE SATISFIED,
WITHOUT LIMITATION, BY OBTAINING WRITTEN ASSURANCES FROM THE MANUFACTUR-
ER ACCOMPANIED BY COPIES OF INVOICES, PURCHASE ORDERS, LICENSES OR OTHER
VERIFICATION OF LAWFUL USE OF THE INFORMATION TECHNOLOGY AT ISSUE;
(II) DIRECT THE MANUFACTURER TO CEASE THE THEFT OR MISAPPROPRIATION,
WHICH MAY BE SATISFIED, WITHOUT LIMITATION, BY THE THIRD PARTY ISSUING A
WRITTEN DIRECTIVE TO THE MANUFACTURER DEMANDING THAT IT CEASE SUCH THEFT
OR MISAPPROPRIATION AND DEMANDING THAT THE MANUFACTURER PROVIDE THE
THIRD PARTY WITH COPIES OF INVOICES, PURCHASE ORDERS, LICENSES OR OTHER
VERIFICATION OF LAWFUL USE OF THE INFORMATION TECHNOLOGY AT ISSUE; AND
FOR PURPOSES OF CLARIFICATION, THE THIRD PARTY NEED TAKE NO ADDITIONAL
ACTION TO FULLY AVAIL ITSELF OF THIS AFFIRMATIVE DEFENSE; OR
(III) IN A CASE IN WHICH THE MANUFACTURER HAS FAILED TO CEASE THE
THEFT OR MISAPPROPRIATION WITHIN SUCH ONE HUNDRED EIGHTY DAY PERIOD, AND
THE THIRD PARTY HAS NOT SATISFIED EITHER SUBCLAUSE (I) OR (II) OF THIS
CLAUSE, CEASE THE FUTURE ACQUISITION OF SUCH ARTICLES OR PRODUCTS FROM
SUCH MANUFACTURER DURING THE PERIOD THAT SUCH MANUFACTURER CONTINUES TO
ENGAGE IN SUCH THEFT OR MISAPPROPRIATION SUBJECT TO THE PROVISIONS OF
SUBDIVISION TWO OF THIS SECTION WHERE DOING SO WOULD NOT CONSTITUTE A
BREACH OF AN AGREEMENT BETWEEN THE PERSON AND SUCH MANUFACTURER FOR THE
MANUFACTURE OF THE ARTICLES OR PRODUCTS IN QUESTION THAT WAS ENTERED
INTO ON OR BEFORE ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF
THIS SECTION; OR
(B) PURSUANT TO AN AGREEMENT BETWEEN THE PERSON AND A MANUFACTURER FOR
THE MANUFACTURE OF THE ARTICLES OR PRODUCTS IN QUESTION THAT WAS ENTERED
INTO BEFORE ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS
SECTION; PROVIDED, WITHIN ONE HUNDRED EIGHTY DAYS OF RECEIVING WRITTEN
NOTICE OF THE JUDGMENT AGAINST THE MANUFACTURER FOR VIOLATION OF SUBDI-
VISION TWO OF THIS SECTION AND A COPY OF A WRITTEN NOTICE THAT SATISFIES
A. 3915--A 9
THE REQUIREMENTS OF SUBDIVISION FIVE OF THIS SECTION, THE PERSON UNDER-
TAKES COMMERCIALLY REASONABLE EFFORTS TO DO ANY OF THE FOLLOWING:
(I) OBTAIN FROM SUCH MANUFACTURER WRITTEN ASSURANCES THAT SUCH
MANUFACTURER IS NOT USING SUCH STOLEN OR MISAPPROPRIATED INFORMATION
TECHNOLOGY IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, WHICH MAY BE
SATISFIED, WITHOUT LIMITATION, BY OBTAINING WRITTEN ASSURANCES FROM THE
MANUFACTURER ACCOMPANIED BY COPIES OF INVOICES, PURCHASE ORDERS,
LICENSES OR OTHER VERIFICATION OF LAWFUL USE OF THE INFORMATION TECHNOL-
OGY AT ISSUE;
(II) DIRECT THE MANUFACTURER TO CEASE SUCH THEFT OR MISAPPROPRIATION,
WHICH MAY BE SATISFIED, WITHOUT LIMITATION, BY THE THIRD PARTY ISSUING A
WRITTEN DIRECTIVE TO THE MANUFACTURER DEMANDING THAT IT CEASE SUCH THEFT
OR MISAPPROPRIATION AND DEMANDING THAT THE MANUFACTURER PROVIDE THE
THIRD PARTY WITH COPIES OF INVOICES, PURCHASE ORDERS, LICENSES OR OTHER
VERIFICATION OF LAWFUL USE OF THE INFORMATION TECHNOLOGY AT ISSUE; AND
FOR PURPOSES OF CLARIFICATION, THE THIRD PARTY NEED TAKE NO ADDITIONAL
ACTION TO FULLY AVAIL ITSELF OF THIS AFFIRMATIVE DEFENSE; OR
(III) IN A CASE IN WHICH THE MANUFACTURER HAS FAILED TO CEASE SUCH
THEFT OR MISAPPROPRIATION WITHIN SUCH ONE HUNDRED EIGHTY DAY PERIOD, AND
THE THIRD PARTY HAS NOT FULFILLED EITHER SUBCLAUSE (I) OR (II) OF THIS
CLAUSE, CEASE THE FUTURE ACQUISITION OF SUCH ARTICLES OR PRODUCTS FROM
SUCH MANUFACTURER DURING THE PERIOD THAT SUCH MANUFACTURER CONTINUES TO
ENGAGE IN SUCH THEFT OR MISAPPROPRIATION SUBJECT TO THE PROVISIONS OF
SUBDIVISION TWO OF THIS SECTION WHERE DOING SO WOULD NOT CONSTITUTE A
BREACH OF SUCH AGREEMENT;
(4) THE PERSON HAS MADE COMMERCIALLY REASONABLE EFFORTS TO IMPLEMENT
PRACTICES AND PROCEDURES TO REQUIRE ITS DIRECT MANUFACTURERS, IN MANU-
FACTURING ARTICLES OR PRODUCTS FOR SUCH PERSON, NOT TO USE STOLEN OR
MISAPPROPRIATED INFORMATION TECHNOLOGY IN VIOLATION OF SUBDIVISION TWO
OF THIS SECTION. A PERSON MAY SATISFY THIS SUBDIVISION BY:
(A) ADOPTING AND UNDERTAKING COMMERCIALLY REASONABLE EFFORTS TO IMPLE-
MENT A CODE OF CONDUCT OR SIMILAR WRITTEN REQUIREMENTS, WHICH ARE APPLI-
CABLE TO THE PERSON'S DIRECT MANUFACTURERS, THAT PROHIBIT USE OF STOLEN
OR MISAPPROPRIATED INFORMATION TECHNOLOGY BY SUCH MANUFACTURER, SUBJECT
TO A RIGHT OF AUDIT, AND SUCH PERSON EITHER (I) HAS A PRACTICE OF AUDIT-
ING ITS DIRECT MANUFACTURERS ON A PERIODIC BASIS IN ACCORDANCE WITH
GENERALLY ACCEPTED INDUSTRY STANDARDS, OR (II) REQUIRES IN ITS AGREE-
MENTS WITH ITS DIRECT MANUFACTURERS THAT THEY SUBMIT TO AUDITS BY A
THIRD PARTY, WHICH MAY INCLUDE A THIRD PARTY ASSOCIATION OF BUSINESSES
REPRESENTING THE OWNER OF THE STOLEN OR MISAPPROPRIATED INTELLECTUAL
PROPERTY, AND FURTHER PROVIDES THAT A FAILURE TO REMEDY ANY DEFICIENCIES
FOUND IN SUCH AUDIT THAT CONSTITUTE A VIOLATION OF THE APPLICABLE LAW OF
THE JURISDICTION WHERE THE DEFICIENCY OCCURRED SHALL CONSTITUTE A BREACH
OF THE CONTRACT, SUBJECT TO CURE WITHIN A REASONABLE PERIOD OF TIME; OR
(B) ADOPTING AND UNDERTAKING COMMERCIALLY REASONABLE EFFORTS TO IMPLE-
MENT A CODE OF CONDUCT OR SIMILAR WRITTEN REQUIREMENTS, WHICH ARE APPLI-
CABLE TO THE PERSON'S DIRECT MANUFACTURERS, THAT PROHIBIT USE OF STOLEN
OR MISAPPROPRIATED INFORMATION TECHNOLOGY BY SUCH MANUFACTURER, AND THE
PERSON UNDERTAKES PRACTICES AND PROCEDURES TO ADDRESS COMPLIANCE WITH
THE PROHIBITION AGAINST THE USE OF THE STOLEN OR MISAPPROPRIATED INFOR-
MATION TECHNOLOGY IN ACCORDANCE WITH THE APPLICABLE CODE OF CONDUCT OR
WRITTEN REQUIREMENTS; OR
(5) THE PERSON DOES NOT HAVE A CONTRACTUAL RELATIONSHIP WITH THE
PERSON ALLEGED TO HAVE VIOLATED SUBDIVISION TWO OF THIS SECTION RESPECT-
ING THE MANUFACTURE OF THE ARTICLES OR PRODUCTS ALLEGED TO HAVE BEEN
MANUFACTURED IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION.
A. 3915--A 10
(B) A THIRD PARTY SHALL HAVE THE OPPORTUNITY TO BE HEARD REGARDING
WHETHER AN ARTICLE OR PRODUCT IS AN ESSENTIAL COMPONENT PROVIDED OR TO
BE PROVIDED TO SUCH THIRD PARTY, AND SHALL HAVE THE RIGHT TO FILE A
MOTION TO DISMISS ANY ACTION BROUGHT AGAINST IT UNDER PARAGRAPH (B) OF
SUBDIVISION SIX OF THIS SECTION.
(C) THE COURT SHALL NOT ENFORCE ANY AWARD FOR DAMAGES AGAINST SUCH
THIRD PARTY UNTIL AFTER THE COURT HAS RULED ON THAT PARTY'S CLAIM OF
ELIGIBILITY FOR ANY OF THE AFFIRMATIVE DEFENSES SET OUT IN PARAGRAPH (A)
OF THIS SUBDIVISION, AND PRIOR TO SUCH RULING MAY ALLOW DISCOVERY, IN AN
ACTION UNDER PARAGRAPH (B) OF SUBDIVISION SIX OF THIS SECTION, ONLY ON
THE PARTICULAR DEFENSES RAISED BY THE THIRD PARTY.
(D) THE COURT SHALL ALLOW DISCOVERY AGAINST A THIRD PARTY ON AN ISSUE
ONLY AFTER ALL DISCOVERY ON THAT ISSUE BETWEEN THE PARTIES HAS BEEN
COMPLETED AND ONLY IF THE EVIDENCE PRODUCED AS A RESULT OF SUCH DISCOV-
ERY DOES NOT RESOLVE AN ISSUE OF MATERIAL DISPUTE BETWEEN THE PARTIES.
(E) ANY CONFIDENTIAL OR OTHERWISE SENSITIVE INFORMATION SUBMITTED BY A
PARTY PURSUANT TO THIS SECTION SHALL BE SUBJECT TO A PROTECTIVE ORDER.
9. TIME LIMITATION ON AWARD. A COURT MAY NOT ENFORCE AN AWARD OF
DAMAGES AGAINST A THIRD PARTY PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
SIX OF THIS SECTION FOR A PERIOD OF EIGHTEEN MONTHS FROM THE EFFECTIVE
DATE OF THIS SECTION.
S 2. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid, the judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section or part thereof directly involved in the
controversy in which the judgment shall have been rendered.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law.