Florida Senate - 2009                             CS for SB 2198
       
       
       
       By the Committee on Judiciary; and Senator Haridopolos
       
       
       
       
       590-05733B-09                                         20092198c1
    1                        A bill to be entitled                      
    2         An act relating to tobacco settlement agreements;
    3         amending s. 569.23, F.S.; providing definitions;
    4         requiring trial courts to stay the execution of all
    5         judgments in favor of certain former class action
    6         members during appellate proceedings upon the posting
    7         of a supersedeas bond or other surety by signatories,
    8         parents, successors, or affiliates of a signatory to a
    9         tobacco settlement agreement applicable to all such
   10         judgments; limiting the total cumulative value of all
   11         supersedeas bonds or other surety to a certain amount;
   12         permitting a court to order a specific defendant that
   13         dissipates assets to avoid payment of a judgment to
   14         increase the surety; providing applicability;
   15         providing an effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 569.23, Florida Statutes, is amended to
   20  read:
   21         569.23 Supersedeas bond requirements for tobacco settlement
   22  agreement signatories, successors, and affiliates.—
   23         (1) As used in this section, the term “tobacco settlement
   24  agreement” means any settlement agreement, as amended, entered
   25  into by the state and one or more cigarette manufacturers in
   26  settlement of State of Florida v. American Tobacco Co., No. 95
   27  1466AH (Fla. 15th Cir. Ct. 1996). As used in this section, the
   28  term “appellant’s proportionate share of liability” means the
   29  total liability for a judgment where there is a single defendant
   30  or appellant, and, in cases where there are multiple defendants
   31  or appellants, any amount specifically allocated against a
   32  particular defendant or appellant in the judgment, and, where
   33  liability is not specifically allocated in whole or in part
   34  among multiple defendants or appellants, the amount of the
   35  unallocated portion of the judgment divided equally among the
   36  defendants or appellants.
   37         (2) In any civil action involving a signatory, or
   38  successor, parent, or an affiliate of a signatory to a the
   39  tobacco settlement agreement, as defined in s. 215.56005(1)(f),
   40  the supersedeas appeal bond or other surety to be furnished
   41  during the pendency of all appeals or discretionary appellate
   42  reviews, including reviews by the United States Supreme Court,
   43  of any judgment in such litigation shall be set pursuant to
   44  applicable laws or court rules, except that the total cumulative
   45  value of all supersedeas bonds or other surety required to stay
   46  the execution of the judgment bond for all defendants may not
   47  exceed $100 million for all appellants collectively, regardless
   48  of the total value of the judgment.
   49         (3)(a)1.In civil actions against a signatory, successor,
   50  parent, or affiliate of a signatory to a tobacco settlement
   51  agreement brought by or on behalf of persons who claim or have
   52  been determined to be members of a former class action that was
   53  decertified in whole or in part, the trial courts shall
   54  automatically stay the execution of judgments in any such
   55  actions during the pendency of all appeals or discretionary
   56  appellate reviews, including reviews by the United States
   57  Supreme Court, upon provision of security required in this
   58  subsection. Security shall be provided through the posting with
   59  or payment into the registry of the clerk of the Supreme Court,
   60  by each appellant individually, of supersedeas bonds, other
   61  surety, or cash in an amount based upon or equal to the
   62  appellant’s proportionate share of liability in all cases
   63  pending appeal plus twice the statutory rate of interest on
   64  judgments, provided that an individual appellant shall not be
   65  required to provide total security for such purposes in excess
   66  of the greater of either $5 million, or, $100 million multiplied
   67  by the appellant’s percentage share of all payments to the state
   68  of Florida in 2008 under the tobacco settlement agreement.
   69  Regardless of the total value or number of the judgments, the
   70  total cumulative value of all security required of all
   71  appellants to stay the execution of all such judgments under
   72  this subsection may not exceed $100 million for all appellants
   73  collectively.
   74         2.Upon the provision by any individual appellant of the
   75  maximum security required by this subsection, the trial courts
   76  shall stay the execution of judgments in all other cases covered
   77  by this subsection during the pendency of all appeals or
   78  discretionary appellate reviews, including reviews by the United
   79  States Supreme Court, without requiring any additional
   80  supersedeas bonds or other surety except as may be provided
   81  below. By operation of law, each appellee whose judgment against
   82  an appellant is stayed by operation of this subsection shall be
   83  deemed a co-beneficiary of all security provided by that
   84  appellant under this subsection, in the same proportion as the
   85  appellee’s judgment has to the total amount of judgments against
   86  such appellant which are stayed under this subsection.
   87         (b)An appellant that has made payments into the registry
   88  of the clerk of the Supreme Court pursuant to this subsection
   89  may petition the circuit court in any case still pending or the
   90  Supreme Court for an order directing the clerk of the Supreme
   91  Court to refund any amount so deposited which exceeds the total
   92  of the appellant’s proportionate share of liability of all
   93  unsatisfied judgments then affected by this subsection. Such
   94  refund shall be ordered upon a showing that the security
   95  provided under this subsection by such appellant is no longer
   96  necessary to pay outstanding judgments against the appellant.
   97  Prior to acting on such petition, the court petitioned may
   98  require proof of service of such petition to all affected
   99  parties. The clerk of the Supreme Court shall make any refund so
  100  ordered within 60 days after such order.
  101         (c)Any security provided by an appellant under this
  102  subsection is intended to secure the collection of judgments
  103  against that appellant in cases covered by this subsection. No
  104  claim may be made against such security unless an appellant does
  105  not pay a judgment in a case covered by this subsection within
  106  30 days after the judgment becomes final. For purposes of this
  107  paragraph, a judgment is final following the completion of all
  108  appeals or discretionary appellate reviews, including reviews by
  109  the United States Supreme Court. In the event that an appellant
  110  does not pay a judgment within such time period:
  111         1.Any stay of execution required in favor of such
  112  appellant under this subsection shall be immediately lifted by
  113  operation of law, unless a stay is provided pursuant to some
  114  other provision of law, rule of court, or judicial order; and
  115         2.Any judgment creditor against whom a stay of execution
  116  of a judgment against the appellant was in effect pursuant to
  117  this subsection may petition the trial court or the Supreme
  118  Court for an order directing the clerk of the Supreme Court to
  119  equitably distribute any cash security provided under this
  120  subsection by such appellant or for an order with respect to any
  121  bond or other surety making equitable division of the proceeds
  122  of such bond or surety. At any time, the clerk of the Supreme
  123  Court may interplead any cash security provided by an appellant
  124  under this subsection in any circuit court in which a case
  125  affected by this subsection is then pending. Such court shall
  126  make equitable distribution of such security to appellees whose
  127  judgments against such appellant are secured by operation of
  128  this subsection.
  129         (d)The clerk of the Supreme Court shall collect fees for
  130  receipt of deposits under paragraph (a) as authorized by ss.
  131  28.231 and 28.24(10)(a). In addition, for as long as any cash
  132  remains on deposit with the clerk pursuant to this subsection,
  133  the clerk of the Supreme Court shall be entitled to regularly
  134  receive as an additional fee, the net investment income earned
  135  thereon. The clerk shall utilize the services of the Chief
  136  Financial Officer, as needed, for the custody and management of
  137  all bonds, other surety, or cash posted or deposited with the
  138  clerk. All fees collected pursuant to this subsection shall be
  139  deposited in the State Courts Revenue Trust Fund for use as
  140  specified by law.
  141         (e)On or before October 1, 2009, the Department of Revenue
  142  shall provide to the clerk of the Supreme Court a report showing
  143  the total tobacco settlement payments received by the state in
  144  2008 and the percentage of that total received on behalf of each
  145  settling manufacturer. Upon request of any judicial officer
  146  administering any case affected by this subsection or of any
  147  appellant that has provided security under this subsection, the
  148  clerk of the Supreme Court shall certify to the trial court the
  149  amount of security provided by a subject appellant and shall
  150  certify whether such amount equals the maximum amount required
  151  under paragraph (a), determined in reliance upon the report of
  152  the Department of Revenue. Any trial court may make such further
  153  inquiry as may be necessary to determine the existence of a stay
  154  in a particular case. In addition, other evidence of the
  155  security provided under this subsection through the clerk of the
  156  Supreme Court shall be provided to the clerks of the circuit
  157  court in such form as may be directed by the Supreme Court
  158  acting in its administrative capacity.
  159         (4)(2) Notwithstanding subsections (2) and (3) subsection
  160  (1), if, after notice and hearing, a plaintiff proves by a
  161  preponderance of the evidence that a defendant who posted a
  162  supersedeas such bond or other equivalent surety or who made
  163  cash payments into the registry of the clerk of the Supreme
  164  Court pursuant to paragraph (3)(a) is purposefully dissipating
  165  assets outside the ordinary course of business to avoid payment
  166  of the judgment, the court may enter necessary orders as to that
  167  defendant to protect the plaintiff, including an order that the
  168  bond or equivalent surety be posted in an amount up to the full
  169  amount of the judgment against that defendant.
  170         (5)(3) This section does not apply to any past, present, or
  171  future action brought by the State of Florida against one or
  172  more signatories to the settlement agreement.
  173         Section 2. This act shall take effect upon becoming a law,
  174  and applies to all judgments entered on or after that date.