Senate Bill 1720e1

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    CS for SB 1720                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to punitive damages in

  3         class-action suits; creating s. 768.733, F.S.;

  4         prescribing the amount of bond or equivalent

  5         surety required to stay the execution of

  6         punitive-damages judgments in class-action

  7         suits, pending appellate review; providing for

  8         application of the act to certain pending

  9         cases; providing an effective date.

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11         WHEREAS, the State of Florida is reviewing options to

12  protect its receipt of payments under the tobacco settlement

13  agreement entered into by the state and participating

14  manufacturers in settlement of "State of Florida et al. v.

15  American Tobacco Co.," Case No. 95-1466AH (Fla. 15th Cir. Ct.,

16  1996), and

17         WHEREAS, the action by the State of Florida which was

18  the subject of the settlement agreement was brought to recover

19  compensatory and punitive damages from the settling

20  manufacturers, and all such claims were settled, and

21         WHEREAS, other claims have been filed and may be filed

22  under the laws of this state for damages of injured

23  individuals and for punitive damages to vindicate and punish

24  the same or similar conduct that was the subject of the action

25  by the State of Florida against the settling manufacturers,

26  and

27         WHEREAS, the State of Florida itself would be at risk

28  in its continued receipt of settlement payments if the ability

29  of participating manufacturers to make the payments were

30  threatened by a requirement that the manufacturers immediately

31  pay massive awards of punitive damages, and


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    CS for SB 1720                                 First Engrossed



  1         WHEREAS, the purpose of punitive damages is the

  2  punishment of each wrongdoer by exacting from his or her

  3  pocketbook a sum of money which, according to his or her

  4  financial ability, will hurt, but not bankrupt, and

  5         WHEREAS, punitive damages require appropriate

  6  safeguards to minimize the risk of unjust punishment, and

  7         WHEREAS, while the amount of a punitive-damages

  8  judgment should provide retribution and deterrence, it should

  9  not financially destroy or bankrupt the defendant or

10  constitute a "grossly excessive" punishment, and

11         WHEREAS, there is no statutorily articulated

12  substantive standard for the courts of this state to apply in

13  order to determine when a punitive-damages judgment is grossly

14  excessive, and

15         WHEREAS, a plaintiff's right to punitive damages is

16  subject to the plenary authority of the Legislature and the

17  establishment or elimination of such a claim is clearly a

18  substantive, rather than a procedural, decision of the

19  Legislature, as recognized in Alamo Rent-A-Car, Inc. v.

20  Mancusi, 632 So.2d 1352, 1358 (Fla. 1994), and

21         WHEREAS, cases involving punitive damages in class

22  actions frequently involve significant contested legal issues,

23  and parties should be afforded reasonable opportunity to fully

24  pursue their rights in appellate courts without oppressive

25  costs that would effectively eliminate or impair their

26  due-process rights, NOW, THEREFORE,

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28  Be It Enacted by the Legislature of the State of Florida:

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30         Section 1.  Section 768.733, Florida Statutes, is

31  created to read:


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    CS for SB 1720                                 First Engrossed



  1         768.733  Punitive damages and bonds in class actions;

  2  limitations.--

  3         (1)  In any civil action that is brought as a certified

  4  class action, the court may not enter a judgment for punitive

  5  damages against a defendant in an amount that, if fully

  6  executed upon, would financially destroy or bankrupt the

  7  defendant.

  8         (2)  In any civil action that is brought as a certified

  9  class action, the trial court, upon the posting of a bond or

10  equivalent surety as provided in this section, shall stay the

11  execution of any judgment, or portion thereof, entered on

12  account of punitive damages pending completion of any

13  appellate review of the judgment.

14         (3)  The required bond or equivalent surety acceptable

15  to the court for imposition of the stay shall be the lower of:

16         (a)  The amount of the punitive-damages judgment, plus

17  twice the statutory rate of interest; or

18         (b)  Ten percent of the net worth of the defendant as

19  determined by applying generally accepted accounting

20  principles to the defendant's financial status as of December

21  31 of the year prior to the judgment for punitive damages.

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23  Provided that in no case shall the amount of the required bond

24  or equivalent surety exceed $100 million, regardless of the

25  amount of punitive damages.

26         (4)  If, at any time after notice and hearing, the

27  court finds that a defendant who has posted a bond or

28  equivalent surety pursuant to subsection (3) is purposefully

29  moving assets with the intent to avoid the punitive-damages

30  judgment, the court shall increase the bond or equivalent

31  surety to the amount determined pursuant to paragraph (3)(a).


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    CS for SB 1720                                 First Engrossed



  1  If the defendant does not post the additional bond required by

  2  the court, the stay shall be revoked.

  3         Section 2.  This act applies to all cases pending on

  4  the effective date of this act in which an award for punitive

  5  damages has not been finally reduced to judgment through trial

  6  and subsequent appeals and to all cases commenced on or after

  7  the effective date of this act.

  8         Section 3.  This act shall take effect upon becoming a

  9  law.

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