ENROLLED
       2009 Legislature                   CS for SB 2198, 2nd Engrossed
       
       
       
       
       
       
                                                             20092198er
    1  
    2         An act relating to tobacco settlement agreements;
    3         amending s. 569.23, F.S.; providing definitions;
    4         including a parent of a signatory to a tobacco
    5         settlement agreement within provisions limiting
    6         security required in certain appeals; prescribing the
    7         security necessary to stay execution of judgments
    8         pending appeal in actions by certain former class
    9         action members against signatories to a tobacco
   10         settlement agreement and related entities; prescribing
   11         the form and manner of posting or paying such
   12         security, the level of appeals to which the security
   13         is applicable, the amount of the security based on the
   14         number of appeals, the amount of security in cases
   15         having multiple defendants, and changes in the amount
   16         of security based on changes in the number of appeals;
   17         providing for the stay of execution of a judgment when
   18         a case is appealed to a court outside this state;
   19         prescribing the amount of security necessary to stay
   20         execution of such a judgment; providing conditions
   21         under which claims may be made against security
   22         provided for an appeal; prescribing when a judgment is
   23         final; authorizing the clerk of the Supreme Court to
   24         collect fees related to maintenance of such security;
   25         expressing legislative intent for the clerk of the
   26         Supreme Court to maintain records on the number of
   27         appeals and amount of security; requiring a signatory
   28         to a tobacco settlement agreement and related entities
   29         to maintain and provide to the clerk of the Supreme
   30         Court an accounting of security provided for appeals;
   31         requiring such signatory or related entity to provide
   32         information to the clerk on certain civil actions
   33         filed against the signatory or related entity;
   34         providing for future expiration of security provisions
   35         related to actions by former class action members;
   36         permitting a court to order a defendant that
   37         dissipates assets to avoid payment of a judgment to
   38         increase the appeal security; providing for
   39         applicability; providing an effective date.
   40  
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 569.23, Florida Statutes, is amended to
   44  read:
   45         569.23 Security bond requirements for tobacco settlement
   46  agreement signatories, successors, parents, and affiliates.—
   47         (1) As used in this section, the term “tobacco settlement
   48  agreement” means any settlement agreement, as amended, entered
   49  into by the state and one or more cigarette manufacturers in
   50  settlement of State of Florida v. American Tobacco Co., No. 95
   51  1466AH (Fla. 15th Cir. Ct.). As used in this section, the term
   52  “security” means supersedeas bonds, other surety permitted by
   53  Florida law, or cash.
   54         (2) In any civil action involving a signatory, or a
   55  successor, parent, or an affiliate of a signatory, to a the
   56  tobacco settlement agreement, as defined in s. 215.56005(1)(f),
   57  the security appeal bond to be furnished during the pendency of
   58  all appeals or discretionary appellate reviews, including
   59  reviews by the United States Supreme Court, of any judgment in
   60  such litigation shall be set pursuant to applicable laws or
   61  court rules, except that the total cumulative value of all
   62  security required to stay the execution of the judgment bond for
   63  all defendants may not exceed $100 million for all appellants
   64  collectively, regardless of the total value of the judgment.
   65         (3)(a)1.In civil actions against a signatory, or a
   66  successor, parent, or affiliate of a signatory, to a tobacco
   67  settlement agreement brought by or on behalf of persons who
   68  claim or have been determined to be members of a former class
   69  action that was decertified in whole or in part, the trial
   70  courts shall automatically stay the execution of any judgment in
   71  any such actions during the pendency of all appeals or
   72  discretionary appellate reviews of such judgment in Florida
   73  courts, upon provision of security as required in this
   74  paragraph. All security shall be provided through the posting
   75  with or payment into the registry of the clerk of the Supreme
   76  Court.
   77         2.The total amount of security that must be provided for
   78  all appellants collectively with regard to a single judgment is
   79  equal to the lesser of the amount of the judgment to be stayed
   80  or the amount of security per judgment required based on the
   81  following tiers of judgments on appeal in the courts of this
   82  state at the time the security is provided:
   83  
   84         TIER -			AMOUNT OF			MAXIMUM
   85         NUMBER			SECURITY			TOTAL
   86         OF JUDGMENTS		PER JUDGMENT		ALL SECURITY
   87                1-40		$5,000,000		$200,000,000
   88               41-80		$2,500,000		$200,000,000
   89              81-100		$2,000,000		$200,000,000
   90             101-150		$1,333,333		$199,999,950
   91             151-200		$1,000,000		$200,000,000
   92             201-300		  $666,667		$200,000,100
   93             301-500		  $400,000		$200,000,000
   94           501-1,000		  $200,000		$200,000,000
   95         1,001-2,000		  $100,000		$200,000,000
   96         2,001-3,000		   $66,667		$200,001,000
   97  
   98         3.In cases having multiple defendants, an individual
   99  appellant shall provide security in proportion to the percent or
  100  amount of liability specifically allocated against that
  101  appellant in the judgment, or, if liability is not specifically
  102  allocated in the judgment, for a share of the unallocated
  103  portion of the judgment determined by dividing the unallocated
  104  portion of the judgment equally among all defendants against
  105  whom the judgment is entered. Once an appellant has provided its
  106  required security with respect to a judgment, that appellant is
  107  entitled to a stay of that judgment regardless of whether other
  108  defendants in that case have provided the security required of
  109  them.
  110         4.When the number of judgments on appeal changes so that
  111  the total is within a higher or lower tier, the amount of
  112  security required in each case shall change by operation of law,
  113  upon notice provided by any party to all other parties and upon
  114  deposit within 30 days after notice of any additional security
  115  required hereunder, from the amount of security previously
  116  posted to an amount consistent with the statutory appeal bond
  117  rights prescribed in this paragraph. When the amount of security
  118  on deposit is changed pursuant to this subparagraph, the
  119  security shall be modified as follows:
  120         a.If the security on deposit is in the form of a
  121  supersedeas bond or other surety, the appellant shall replace or
  122  supplement that supersedeas bond or other surety with security
  123  in the new amount as required by this paragraph.
  124         b.If the security on deposit is in the form of cash, the
  125  clerk of the Supreme Court shall, as appropriate:
  126         (I)Upon the request of the appellant and notice to all
  127  appellees affected, refund to the appellant the difference
  128  between the amount of security on deposit and the reduced amount
  129  of security required or hold the difference as a credit against
  130  future security to be posted by that appellant; or
  131         (II)Record any additional cash provided by the appellant.
  132         (b)1.In any action subject to this subsection, if there is
  133  no appeal or discretionary appellate review pending in a Florida
  134  court and an appellant exercises its right to seek discretionary
  135  appellate review outside of Florida courts, including a review
  136  by the United States Supreme Court, the trial court shall
  137  automatically stay the execution of the judgment in any such
  138  action during the pendency of the appeal, upon provision of
  139  security as required in this paragraph. All security shall be
  140  provided through the posting with or payment into the registry
  141  of the clerk of the Supreme Court of this state.
  142         2.The amount of security shall be equal to the lesser of
  143  the amount of the judgment to be stayed or three times the
  144  security required to stay the execution of a judgment during all
  145  appellate review in Florida courts at the time appellate review
  146  is sought under this paragraph.
  147         (c)A claim may not be made against the security provided
  148  by an appellant unless an appellant fails to pay a judgment in a
  149  case covered by this subsection within 30 days after the
  150  judgment becomes final. For purposes of this subsection, a
  151  judgment is “final” following the completion of all appeals or
  152  discretionary appellate reviews, including reviews by the United
  153  States Supreme Court. If an appellant fails to pay a judgment
  154  within such time period, the security for that judgment provided
  155  by that appellant shall be available to satisfy the judgment in
  156  favor of the appellee. Upon satisfaction of the judgment in any
  157  case, the clerk of the Supreme Court may refund any security on
  158  deposit with respect to that case to the appellant upon an order
  159  from the trial court confirming satisfaction of the judgment.
  160         (d)The clerk of the Supreme Court shall collect fees for
  161  receipt of deposits under this subsection as authorized by ss.
  162  28.231 and 28.24(10)(a). In addition, for as long as any cash
  163  remains on deposit with the clerk pursuant to this subsection,
  164  the clerk of the Supreme Court is entitled to regularly receive
  165  as an additional fee the net investment income earned thereon.
  166  The clerk shall use the services of the Chief Financial Officer,
  167  as needed, for the custody and management of all bonds, other
  168  surety, or cash posted or deposited with the clerk. All fees
  169  collected pursuant to this subsection shall be deposited in the
  170  State Courts Revenue Trust Fund for use as specified by law.
  171         (e)1.It is the intent of the Legislature that the clerk of
  172  the Supreme Court maintain a record of the number of appeals in
  173  Florida courts and all security posted with or paid into the
  174  registry of the Supreme Court under this subsection. It is
  175  further the intent of the Legislature that the clerk regularly
  176  update the records to reflect any revisions in the amount of
  177  previously posted or paid security.
  178         2.A signatory, or a successor, parent, or affiliate of a
  179  signatory, to a tobacco settlement agreement shall maintain on a
  180  continuing basis an accounting of security provided under this
  181  subsection, including, but not limited to, the specific amount
  182  of security provided with respect to each specific judgment and
  183  the date on which it was provided, the amount and date of any
  184  adjustments upward or downward to security provided and the
  185  basis for the adjustment, and the date of any final disposition
  186  related to security. By July 15 of each year, the entity shall
  187  provide to the clerk of the Supreme Court an updated copy of the
  188  accounting reflecting activity through the immediately preceding
  189  June 30, in a manner prescribed by the Supreme Court. A verified
  190  copy of such accounting shall also be filed in each circuit
  191  court case in which each such judgment was entered.
  192         3.By August 1, 2009, a signatory, or a successor, parent,
  193  or affiliate of a signatory, to a tobacco settlement agreement
  194  shall provide to the clerk of the Supreme Court a list of all
  195  civil actions, as of the date the list is provided and
  196  identified by case name and court case number, against the
  197  signatory, or a successor, parent, or affiliate of a signatory,
  198  brought by or on behalf of persons who claim or have been
  199  determined to be members of a former class action that was
  200  decertified in whole or in part. A signatory, or a successor,
  201  parent, or affiliate of a signatory, shall provide to the clerk
  202  the same information on any additional actions filed within 60
  203  days after the additional action is joined.
  204         (f)This subsection expires December 31, 2012.
  205         (4)(2) Notwithstanding subsections (2) and (3) subsection
  206  (1), if, after notice and hearing, a plaintiff proves by a
  207  preponderance of the evidence that a defendant who posted or
  208  paid security under this section such bond or equivalent surety
  209  is purposefully dissipating assets outside the ordinary course
  210  of business to avoid payment of the judgment, the court may
  211  enter necessary orders as to that defendant to protect the
  212  plaintiff, including an order that the security bond or
  213  equivalent surety be posted or paid in an amount up to the full
  214  amount of the judgment against that defendant.
  215         (5)(3) This section does not apply to any past, present, or
  216  future action brought by the State of Florida against one or
  217  more signatories to the settlement agreement.
  218         Section 2. This act shall take effect upon becoming a law,
  219  and applies to all judgments entered on or after that date.