(b) Limitation on bystander liability for Y2K failures
(1) In general With respect to any Y2K action for money damages in which
(A) the defendant is not the manufacturer, seller, or distributor of a product, or the provider of a service, that suffers or causes the Y2K failure at issue;
(B) the plaintiff is not in substantial privity with the defendant; and
(C) the defendants actual or constructive awareness of an actual or potential Y2K failure is an element of the claim under applicable law,
the defendant shall not be liable unless the plaintiff, in addition to establishing all other requisite elements of the claim, proves, by the standard of evidence under applicable State law in effect on the day before January 1, 1999, that the defendant actually knew, or recklessly disregarded a known and substantial risk, that such failure would occur.
(2) Substantial privity
For purposes of paragraph (1)(B), a plaintiff and a defendant are in substantial privity when, in a Y2K action arising out of the performance of professional services, the plaintiff and the defendant either have contractual relations with one another or the plaintiff is a person who, prior to the defendants performance of such services, was specifically identified to and acknowledged by the defendant as a person for whose special benefit the services were being performed.
(3) Certain claims excluded
For purposes of paragraph (1)(C), claims in which the defendants actual or constructive awareness of an actual or potential Y2K failure is an element of the claim under applicable law do not include claims for negligence but do include claims such as fraud, constructive fraud, breach of fiduciary duty, negligent misrepresentation, and interference with contract or economic advantage.