Amendment
Bill No. CS/SB 2198
Amendment No. 370849
CHAMBER ACTION
Senate House
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1Representative Bogdanoff offered the following:
2
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
6read:
7     569.23  Supersedeas bond requirements for tobacco
8settlement agreement signatories, successors, and affiliates.--
9     (1)  As used in this section, the term:
10     (a)  "Tobacco settlement agreement" means any settlement
11agreement, as amended, entered into by the state and one or more
12cigarette manufacturers in settlement of State of Florida v.
13American 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
16appellant, the total liability for a judgment.
17     2.  In cases in which there are multiple defendants or
18appellants, any amount specifically allocated against a
19particular defendant or appellant in the judgment.
20     3.  In cases in which liability is not specifically
21allocated in whole or in part among multiple defendants or
22appellants, the amount of the unallocated portion of the
23judgment divided equally among the defendants or appellants.
24     (2)(1)  In any civil action involving a signatory or a
25successor, parent, or an affiliate of a signatory to the tobacco
26settlement agreement, as defined in s. 215.56005(1)(f), the
27supersedeas appeal bond or other surety to be furnished during
28the pendency of all appeals or discretionary appellate reviews,
29including reviews by the United States Supreme Court, of any
30judgment in such litigation shall be set pursuant to applicable
31laws or court rules, except that the total cumulative value of
32all supersedeas bonds or other surety required to stay the
33execution of the judgment bond for all defendants may not exceed
34$100 million for all appellants collectively, regardless of the
35total value of the judgment.
36     (3)(a)1.  In civil actions against a signatory or a
37successor, parent, or affiliate of a signatory to a tobacco
38settlement agreement brought by or on behalf of persons who
39claim or have been determined to be members of a former class
40action that was decertified in whole or in part, the trial
41courts shall automatically stay the execution of judgments in
42any such actions during the pendency of all appeals or
43discretionary appellate reviews, including reviews by the United
44States Supreme Court, upon provision of security required in
45this subsection. Security shall be provided through the posting
46with or payment into the registry of the Clerk of the Supreme
47Court, by each appellant individually, of supersedeas bonds,
48other surety, or cash in an amount based upon or equal to the
49appellant's proportionate share of liability in all cases
50pending appeal, plus twice the statutory rate of interest on
51judgments. However, an individual appellant shall not be
52required to provide total security for such purposes in excess
53of $100 million multiplied by the appellant's percentage share
54of all payments to the State of Florida in 2008 under the
55tobacco settlement agreement, or $5 million, whichever is
56greater. Regardless of the total value or number of the
57judgments, the total cumulative value of all security required
58of all appellants to stay the execution of all such judgments
59under this subsection may not exceed $105 million for all
60appellants collectively.
61     2.  Upon the provision by any individual appellant of the
62maximum security required by this paragraph, the trial courts
63shall stay the execution of judgments in all other cases covered
64by this paragraph during the pendency of all appeals or
65discretionary appellate reviews, including reviews by the United
66States Supreme Court, without requiring any additional
67supersedeas bonds or other surety except as may be provided in
68paragraph (c) and subsection (4).
69     3.  By operation of law, each appellee whose judgment
70against an appellant is stayed by operation of this paragraph
71shall be deemed a co-beneficiary of all security provided by
72that appellant under this subsection in the same proportion as
73the appellee's judgment has to the total amount of judgments
74against such appellant that are stayed under this paragraph.
75     (b)  An appellant that has made payments into the registry
76of the Clerk of the Supreme Court pursuant to this subsection
77may petition the circuit court in any case still pending or the
78Supreme Court for an order directing the Clerk of the Supreme
79Court to refund any amount so deposited that exceeds the total
80of the appellant's proportionate share of liability of all
81unsatisfied judgments then affected by this subsection. Such
82refund shall be ordered upon a showing that the security
83provided under this subsection by such appellant is no longer
84necessary to pay outstanding judgments against the appellant.
85Prior to acting on such petition, the court petitioned may
86require proof of service of such petition to all affected
87parties. The Clerk of the Supreme Court shall make any refund so
88ordered within 60 days after such order.
89     (c)  Any security provided by an appellant under this
90subsection is intended to secure the collection of judgments
91against that appellant in cases covered by this subsection. No
92claim may be made against such security unless an appellant does
93not pay a judgment in a case covered by this subsection within
9430 days after the judgment becomes final. For purposes of this
95paragraph, a judgment is final following the completion of all
96appeals or discretionary appellate reviews, including reviews by
97the United States Supreme Court. In the event that an appellant
98does not pay a judgment within such time period, any stay of
99execution required in favor of such appellant under this
100subsection shall be immediately lifted by operation of law,
101unless a stay is provided pursuant to some other provision of
102law, rule of court, or judicial order, and any judgment creditor
103against whom a stay of execution of a judgment against the
104appellant was in effect pursuant to this subsection may petition
105the trial court or the Supreme Court for an order directing the
106Clerk of the Supreme Court to equitably distribute any cash
107security provided under this subsection by such appellant, and
108for an order with respect to any bond or other surety, making
109equitable division of the proceeds of such bond or surety. At
110any time, the Clerk of the Supreme Court may interplead any cash
111security provided by an appellant under this subsection in any
112circuit court in which a case affected by this subsection is
113then pending. Such court shall make equitable distribution of
114such security to appellees whose judgments against such
115appellant are secured by operation of this subsection.
116     (d)  The Clerk of the Supreme Court shall collect fees for
117receipt of deposits under paragraph (a) as authorized by ss.
11828.231 and 28.24(10)(a). In addition, for as long as any cash
119remains on deposit with the clerk pursuant to this subsection,
120the Clerk of the Supreme Court shall be entitled to regularly
121receive as an additional fee the net investment income earned
122thereon. The clerk shall utilize the services of the Chief
123Financial Officer, as needed, for the custody and management of
124all bonds, other surety, or cash posted or deposited with the
125clerk. All fees collected pursuant to this subsection shall be
126deposited in the State Courts Revenue Trust Fund for use as
127specified by law.
128     (e)  On or before October 1, 2009, the Department of
129Revenue shall provide to the Clerk of the Supreme Court a report
130showing the total tobacco settlement payments received by the
131state in 2008 and the percentage of that total received on
132behalf of each settling manufacturer. Upon request of any
133judicial officer administering any case affected by this
134subsection or of any appellant that has provided security under
135this subsection, the Clerk of the Supreme Court shall certify to
136the trial court the amount of security provided by a subject
137appellant and shall certify whether such amount equals the
138maximum amount required under paragraph (a) determined in
139reliance upon the report of the Department of Revenue. Any trial
140court may make such further inquiry as may be necessary to
141determine the existence of a stay in a particular case. In
142addition, other evidence of the security provided under this
143subsection through the Clerk of the Supreme Court shall be
144provided to the clerks of the circuit court in such form as may
145be directed by the Supreme Court acting in its administrative
146capacity.
147     (4)(2)  Notwithstanding subsections (2) and (3) subsection
148(1), if, after notice and hearing, a plaintiff proves by a
149preponderance of the evidence that a defendant who posted a
150supersedeas such bond or other equivalent surety or who made
151cash payments into the registry of the Clerk of the Supreme
152Court pursuant to paragraph (3)(a) is purposefully dissipating
153assets outside the ordinary course of business to avoid payment
154of the judgment, the court may enter necessary orders as to that
155defendant to protect the plaintiff, including an order that the
156bond or equivalent surety be posted in an amount up to the full
157amount of the judgment against that defendant.
158     (5)(3)  This section does not apply to any past, present,
159or future action brought by the State of Florida against one or
160more signatories to the settlement agreement.
161     Section 2.  This act shall take effect upon becoming a law
162and shall apply to judgments rendered on or after that date.
163
164
165
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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
169An act relating to tobacco settlement agreements; amending
170s. 569.23, F.S.; providing definitions; providing a
171limitation on the amount of certain supersedeas bonds or
172other surety that may be ordered; requiring trial courts
173to stay the execution of certain judgments during
174appellate proceedings upon the posting of a supersedeas
175bond or other surety by signatories or parents,  
176successors, or affiliates of signatories to a tobacco
177settlement agreement applicable to such judgments;  
178providing limitations on the total cumulative value of all
179supersedeas bonds or other surety; providing that an
180appellee whose judgment is stayed shall be deemed a co-
181beneficiary of all security provided by the appellant;  
182providing procedures for the refund of certain payments
183made by an appellant into the registry of the Clerk of the
184Supreme Court; providing that a claim may not be made
185against certain securities; specifying when a judgment
186becomes final; providing for the lifting of certain stays;  
187providing for the distribution of securities; requiring
188the clerk to collect certain fees; providing for
189management and disposition of funds collected; requiring
190the Department of Revenue to provide a certain report to
191the clerk; requiring the Supreme Court to certify to the
192trial court the amount of security provided by certain
193subject appellants; permitting a court to order an
194increase to the surety when a defendant dissipates assets
195to avoid payment of a judgment; providing applicability;
196providing an effective date.


CODING: Words stricken are deletions; words underlined are additions.