HB 7153

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

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