| 1 | Representative Bogdanoff offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause and insert: |
| 5 | Section 1. Section 569.23, Florida Statutes, is amended to |
| 6 | read: |
| 7 | 569.23 Supersedeas bond requirements for tobacco |
| 8 | settlement agreement signatories, successors, and affiliates.-- |
| 9 | (1) As used in this section, the term: |
| 10 | (a) "Tobacco settlement agreement" means any settlement |
| 11 | agreement, as amended, entered into by the state and one or more |
| 12 | cigarette manufacturers in settlement of State of Florida v. |
| 13 | American Tobacco Co., No. 95-1466AH (Fla. 15th Cir. Ct.). |
| 14 | (b) "Appellant's proportionate share of liability" means: |
| 15 | 1. In cases in which there is a single defendant or |
| 16 | appellant, the total liability for a judgment. |
| 17 | 2. In cases in which there are multiple defendants or |
| 18 | appellants, any amount specifically allocated against a |
| 19 | particular defendant or appellant in the judgment. |
| 20 | 3. In cases in which liability is not specifically |
| 21 | allocated in whole or in part among multiple defendants or |
| 22 | appellants, the amount of the unallocated portion of the |
| 23 | judgment divided equally among the defendants or appellants. |
| 24 | (2)(1) In any civil action involving a signatory or a |
| 25 | successor, parent, or an affiliate of a signatory to the tobacco |
| 26 | settlement agreement, as defined in s. 215.56005(1)(f), the |
| 27 | supersedeas appeal bond or other surety to be furnished during |
| 28 | the pendency of all appeals or discretionary appellate reviews, |
| 29 | including reviews by the United States Supreme Court, of any |
| 30 | judgment in such litigation shall be set pursuant to applicable |
| 31 | laws or court rules, except that the total cumulative value of |
| 32 | all supersedeas bonds or other surety required to stay the |
| 33 | execution of the judgment bond for all defendants may not exceed |
| 34 | $100 million for all appellants collectively, regardless of the |
| 35 | total value of the judgment. |
| 36 | (3)(a)1. In civil actions against a signatory or a |
| 37 | successor, parent, or affiliate of a signatory to a tobacco |
| 38 | settlement agreement brought by or on behalf of persons who |
| 39 | claim or have been determined to be members of a former class |
| 40 | action that was decertified in whole or in part, the trial |
| 41 | courts shall automatically stay the execution of judgments in |
| 42 | any such actions during the pendency of all appeals or |
| 43 | discretionary appellate reviews, including reviews by the United |
| 44 | States Supreme Court, upon provision of security required in |
| 45 | this subsection. Security shall be provided through the posting |
| 46 | with or payment into the registry of the Clerk of the Supreme |
| 47 | Court, by each appellant individually, of supersedeas bonds, |
| 48 | other surety, or cash in an amount based upon or equal to the |
| 49 | appellant's proportionate share of liability in all cases |
| 50 | pending appeal, plus twice the statutory rate of interest on |
| 51 | judgments. However, an individual appellant shall not be |
| 52 | required to provide total security for such purposes in excess |
| 53 | of $100 million multiplied by the appellant's percentage share |
| 54 | of all payments to the State of Florida in 2008 under the |
| 55 | tobacco settlement agreement, or $5 million, whichever is |
| 56 | greater. Regardless of the total value or number of the |
| 57 | judgments, the total cumulative value of all security required |
| 58 | of all appellants to stay the execution of all such judgments |
| 59 | under this subsection may not exceed $105 million for all |
| 60 | appellants collectively. |
| 61 | 2. Upon the provision by any individual appellant of the |
| 62 | maximum security required by this paragraph, the trial courts |
| 63 | shall stay the execution of judgments in all other cases covered |
| 64 | by this paragraph during the pendency of all appeals or |
| 65 | discretionary appellate reviews, including reviews by the United |
| 66 | States Supreme Court, without requiring any additional |
| 67 | supersedeas bonds or other surety except as may be provided in |
| 68 | paragraph (c) and subsection (4). |
| 69 | 3. By operation of law, each appellee whose judgment |
| 70 | against an appellant is stayed by operation of this paragraph |
| 71 | shall be deemed a co-beneficiary of all security provided by |
| 72 | that appellant under this subsection in the same proportion as |
| 73 | the appellee's judgment has to the total amount of judgments |
| 74 | against such appellant that are stayed under this paragraph. |
| 75 | (b) An appellant that has made payments into the registry |
| 76 | of the Clerk of the Supreme Court pursuant to this subsection |
| 77 | may petition the circuit court in any case still pending or the |
| 78 | Supreme Court for an order directing the Clerk of the Supreme |
| 79 | Court to refund any amount so deposited that exceeds the total |
| 80 | of the appellant's proportionate share of liability of all |
| 81 | unsatisfied judgments then affected by this subsection. Such |
| 82 | refund shall be ordered upon a showing that the security |
| 83 | provided under this subsection by such appellant is no longer |
| 84 | necessary to pay outstanding judgments against the appellant. |
| 85 | Prior to acting on such petition, the court petitioned may |
| 86 | require proof of service of such petition to all affected |
| 87 | parties. The Clerk of the Supreme Court shall make any refund so |
| 88 | ordered within 60 days after such order. |
| 89 | (c) Any security provided by an appellant under this |
| 90 | subsection is intended to secure the collection of judgments |
| 91 | against that appellant in cases covered by this subsection. No |
| 92 | claim may be made against such security unless an appellant does |
| 93 | not pay a judgment in a case covered by this subsection within |
| 94 | 30 days after the judgment becomes final. For purposes of this |
| 95 | paragraph, a judgment is final following the completion of all |
| 96 | appeals or discretionary appellate reviews, including reviews by |
| 97 | the United States Supreme Court. In the event that an appellant |
| 98 | does not pay a judgment within such time period, any stay of |
| 99 | execution required in favor of such appellant under this |
| 100 | subsection shall be immediately lifted by operation of law, |
| 101 | unless a stay is provided pursuant to some other provision of |
| 102 | law, rule of court, or judicial order, and any judgment creditor |
| 103 | against whom a stay of execution of a judgment against the |
| 104 | appellant was in effect pursuant to this subsection may petition |
| 105 | the trial court or the Supreme Court for an order directing the |
| 106 | Clerk of the Supreme Court to equitably distribute any cash |
| 107 | security provided under this subsection by such appellant, and |
| 108 | for an order with respect to any bond or other surety, making |
| 109 | equitable division of the proceeds of such bond or surety. At |
| 110 | any time, the Clerk of the Supreme Court may interplead any cash |
| 111 | security provided by an appellant under this subsection in any |
| 112 | circuit court in which a case affected by this subsection is |
| 113 | then pending. Such court shall make equitable distribution of |
| 114 | such security to appellees whose judgments against such |
| 115 | appellant are secured by operation of this subsection. |
| 116 | (d) The Clerk of the Supreme Court shall collect fees for |
| 117 | receipt of deposits under paragraph (a) as authorized by ss. |
| 118 | 28.231 and 28.24(10)(a). In addition, for as long as any cash |
| 119 | remains on deposit with the clerk pursuant to this subsection, |
| 120 | the Clerk of the Supreme Court shall be entitled to regularly |
| 121 | receive as an additional fee the net investment income earned |
| 122 | thereon. The clerk shall utilize the services of the Chief |
| 123 | Financial Officer, as needed, for the custody and management of |
| 124 | all bonds, other surety, or cash posted or deposited with the |
| 125 | clerk. All fees collected pursuant to this subsection shall be |
| 126 | deposited in the State Courts Revenue Trust Fund for use as |
| 127 | specified by law. |
| 128 | (e) On or before October 1, 2009, the Department of |
| 129 | Revenue shall provide to the Clerk of the Supreme Court a report |
| 130 | showing the total tobacco settlement payments received by the |
| 131 | state in 2008 and the percentage of that total received on |
| 132 | behalf of each settling manufacturer. Upon request of any |
| 133 | judicial officer administering any case affected by this |
| 134 | subsection or of any appellant that has provided security under |
| 135 | this subsection, the Clerk of the Supreme Court shall certify to |
| 136 | the trial court the amount of security provided by a subject |
| 137 | appellant and shall certify whether such amount equals the |
| 138 | maximum amount required under paragraph (a) determined in |
| 139 | reliance upon the report of the Department of Revenue. Any trial |
| 140 | court may make such further inquiry as may be necessary to |
| 141 | determine the existence of a stay in a particular case. In |
| 142 | addition, other evidence of the security provided under this |
| 143 | subsection through the Clerk of the Supreme Court shall be |
| 144 | provided to the clerks of the circuit court in such form as may |
| 145 | be directed by the Supreme Court acting in its administrative |
| 146 | capacity. |
| 147 | (4)(2) Notwithstanding subsections (2) and (3) subsection |
| 148 | (1), if, after notice and hearing, a plaintiff proves by a |
| 149 | preponderance of the evidence that a defendant who posted a |
| 150 | supersedeas such bond or other equivalent surety or who made |
| 151 | cash payments into the registry of the Clerk of the Supreme |
| 152 | Court pursuant to paragraph (3)(a) is purposefully dissipating |
| 153 | assets outside the ordinary course of business to avoid payment |
| 154 | of the judgment, the court may enter necessary orders as to that |
| 155 | defendant to protect the plaintiff, including an order that the |
| 156 | bond or equivalent surety be posted in an amount up to the full |
| 157 | amount of the judgment against that defendant. |
| 158 | (5)(3) This section does not apply to any past, present, |
| 159 | or future action brought by the State of Florida against one or |
| 160 | more signatories to the settlement agreement. |
| 161 | Section 2. This act shall take effect upon becoming a law |
| 162 | and shall apply to judgments rendered on or after that date. |
| 163 |
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| 164 |
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| 165 | ----------------------------------------------------- |
| 166 | T I T L E A M E N D M E N T |
| 167 | Remove the entire title and insert: |
| 168 | A bill to be entitled |
| 169 | An act relating to tobacco settlement agreements; amending |
| 170 | s. 569.23, F.S.; providing definitions; providing a |
| 171 | limitation on the amount of certain supersedeas bonds or |
| 172 | other surety that may be ordered; requiring trial courts |
| 173 | to stay the execution of certain judgments during |
| 174 | appellate proceedings upon the posting of a supersedeas |
| 175 | bond or other surety by signatories or parents, |
| 176 | successors, or affiliates of signatories to a tobacco |
| 177 | settlement agreement applicable to such judgments; |
| 178 | providing limitations on the total cumulative value of all |
| 179 | supersedeas bonds or other surety; providing that an |
| 180 | appellee whose judgment is stayed shall be deemed a co- |
| 181 | beneficiary of all security provided by the appellant; |
| 182 | providing procedures for the refund of certain payments |
| 183 | made by an appellant into the registry of the Clerk of the |
| 184 | Supreme Court; providing that a claim may not be made |
| 185 | against certain securities; specifying when a judgment |
| 186 | becomes final; providing for the lifting of certain stays; |
| 187 | providing for the distribution of securities; requiring |
| 188 | the clerk to collect certain fees; providing for |
| 189 | management and disposition of funds collected; requiring |
| 190 | the Department of Revenue to provide a certain report to |
| 191 | the clerk; requiring the Supreme Court to certify to the |
| 192 | trial court the amount of security provided by certain |
| 193 | subject appellants; permitting a court to order an |
| 194 | increase to the surety when a defendant dissipates assets |
| 195 | to avoid payment of a judgment; providing applicability; |
| 196 | providing an effective date. |