Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 2198
       
       
       
       
       
       
                                Barcode 117940                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/21/2009           .                                
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       The Committee on Judiciary (Haridopolos) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 569.23, Florida Statutes, is amended to
    6  read:
    7         569.23 Supersedeas bond requirements for tobacco settlement
    8  agreement signatories, successors, and affiliates.—
    9         (1) As used in this section, the term “tobacco settlement
   10  agreement” means any settlement agreement, as amended, entered
   11  into by the state and one or more cigarette manufacturers in
   12  settlement of State of Florida v. American Tobacco Co., No. 95
   13  1466AH (Fla. 15th Cir. Ct.). As used in this section, the term
   14  “appellant’s proportionate share of liability” means either the
   15  total liability for a judgment where there is a single defendant
   16  or appellant, and, in cases where there are multiple defendants
   17  or appellants, any amount specifically allocated against a
   18  particular defendant or appellant in the judgment, and, where
   19  liability is not specifically allocated in whole or in part
   20  among multiple defendants or appellants, the amount of the
   21  unallocated portion of the judgment divided equally among the
   22  defendants or appellants.
   23         (2) In any civil action involving a signatory, or
   24  successor, parent, or an affiliate of a signatory to a the
   25  tobacco settlement agreement, as defined in s. 215.56005(1)(f),
   26  the supersedeas appeal bond or other surety to be furnished
   27  during the pendency of all appeals or discretionary appellate
   28  reviews, including reviews by the United States Supreme Court,
   29  of any judgment in such litigation shall be set pursuant to
   30  applicable laws or court rules, except that the total cumulative
   31  value of all supersedeas bonds or other surety required to stay
   32  the execution of the judgment bond for all defendants may not
   33  exceed $100 million for all appellants collectively, regardless
   34  of the total value of the judgment.
   35         (3)(a)In civil actions against a signatory, successor,
   36  parent, or affiliate of a signatory to a tobacco settlement
   37  agreement brought by or on behalf of persons who claim or have
   38  been determined to be members of a former class action that was
   39  decertified in whole or in part, the trial courts shall
   40  automatically stay the execution of judgments in any such
   41  actions during the pendency of all appeals or discretionary
   42  appellate reviews, including reviews by the United States
   43  Supreme Court, upon provision of security required in this
   44  subsection. Security shall be provided through the posting with
   45  or payment into the registry of the clerk of the Supreme Court,
   46  by each appellant individually, of supersedeas bonds, other
   47  surety, or cash in an amount based upon or equal to the
   48  appellant’s proportionate share of liability in all cases
   49  pending appeal plus twice the statutory rate of interest on
   50  judgments, provided that an individual appellant shall not be
   51  required to provide total security for such purposes in excess
   52  of the greater of either $5 million, or, $100 million multiplied
   53  by the appellant’s percentage share of all payments to the state
   54  of Florida in 2008 under the tobacco settlement agreement.
   55  Regardless of the total value or number of the judgments, the
   56  total cumulative value of all security required of all
   57  appellants to stay the execution of all such judgments under
   58  this subsection may not exceed $100 million for all appellants
   59  collectively.
   60  
   61  Upon the provision by any individual appellant of the maximum
   62  security required by this subsection the trial courts shall stay
   63  the execution of judgments in all other cases covered by this
   64  subsection during the pendency of all appeals or discretionary
   65  appellate reviews, including reviews by the United States
   66  Supreme Court, without requiring any additional supersedeas
   67  bonds or other surety except as may be provided below. By
   68  operation of law, each appellee whose judgment against an
   69  appellant is stayed by operation of this subsection shall be
   70  deemed a co-beneficiary of all security provided by that
   71  appellant under this subsection, in the same proportion as the
   72  appellee’s judgment has to the total amount of judgments against
   73  such appellant that are stayed under this subsection.
   74         (b)An appellant that has made payments into the registry
   75  of the clerk of the Supreme Court pursuant to this subsection
   76  may petition the circuit court in any case still pending or the
   77  Supreme Court for an order directing the clerk of the Supreme
   78  Court to refund any amount so deposited that exceeds the total
   79  of the appellant’s proportionate share of liability of all
   80  unsatisfied judgments then affected by this subsection. Such
   81  refund shall be ordered upon a showing that the security
   82  provided under this subsection by such appellant is no longer
   83  necessary to pay outstanding judgments against the appellant.
   84  Prior to acting on such petition, the court petitioned may
   85  require proof of service of such petition to all affected
   86  parties. The clerk of the Supreme Court shall make any refund so
   87  ordered with 60 days of such order.
   88         (c)Any security provided by an appellant under this
   89  subsection is intended to secure the collection of judgments
   90  against that appellant in cases covered by this subsection. No
   91  claim may be made against such security unless an appellant does
   92  not pay a judgment in a case covered by this subsection within
   93  30 days after the judgment becomes final. For purposes of this
   94  paragraph, a judgment is final following the completion of all
   95  appeals or discretionary appellate reviews, including reviews by
   96  the United States Supreme Court. In the event that an appellant
   97  does not pay a judgment within such time period:
   98         1.Any stay of execution required in favor of such
   99  appellant under this subsection shall be immediately lifted by
  100  operation of law, unless a stay is provided pursuant to some
  101  other provision of law, rule of court or judicial order; and
  102         2.Any judgment creditor against whom a stay of execution
  103  of a judgment against the appellant was in effect pursuant to
  104  this subsection may petition the trial court or the Supreme
  105  Court for an order directing the clerk of the Supreme Court to
  106  equitably distribute any cash security provided under this
  107  subsection by such appellant or for an order with respect to any
  108  bond or other surety making equitable division of the proceeds
  109  of such bond or surety. At any time, the clerk of the Supreme
  110  Court may interplead any cash security provided by an appellant
  111  under this subsection in any circuit court in which a case
  112  affected by this subsection is then pending. Such court shall
  113  make equitable distribution of such security to appellees whose
  114  judgments against such appellant are secured by operation of
  115  this subsection.
  116         (d)The clerk of the Supreme Court shall collect fees for
  117  receipt of deposits under paragraph (a) as authorized by ss.
  118  28.231 and 28.24(10)(a). In addition, for as long as any cash
  119  remains on deposit with the clerk pursuant to this subjection,
  120  the clerk of the Supreme Court shall be entitled to regularly
  121  receive as an additional fee, the net investment income earned
  122  thereon. The clerk shall utilize the services of the Chief
  123  Financial Officer, as needed, for the custody and management of
  124  all bonds, other surety or cash posted or deposited with the
  125  clerk. All fees collected pursuant to this subsection shall be
  126  deposited in the State Courts Revenue Trust Fund for use as
  127  specified by law.
  128         (e)On or before October 1, 2009, the Department of Revenue
  129  shall provide to the clerk of the Supreme Court a report showing
  130  the total tobacco settlement payments received by the state in
  131  2008 and the percentage of that total received on behalf of each
  132  settling manufacturer. Upon request of any judicial officer
  133  administering any case affected by this subsection or of any
  134  appellant that has provided security under this subsection, the
  135  clerk of the Supreme Court shall certify to the trial court the
  136  amount of security provided by a subject appellant and shall
  137  certify whether such amount equals the maximum amount required
  138  under paragraph (3)(a) determined in reliance upon the report of
  139  the Department of Revenue. Any trial court may make such further
  140  inquiry as may be necessary to determine the existence of a stay
  141  in a particular case. In addition, other evidence of the
  142  security provided under this subsection through the clerk of the
  143  Supreme Court shall be provided to the clerks of the circuit
  144  court in such form as may be directed by the Supreme Court
  145  acting in its administrative capacity.
  146         (4)(2) Notwithstanding subsections (2) and (3) subsection
  147  (1), if, after notice and hearing, a plaintiff proves by a
  148  preponderance of the evidence that a defendant who posted a
  149  supersedeas such bond or other equivalent surety or who made
  150  cash payments into the registry of the clerk of the Supreme
  151  Court pursuant to subsection (3)(a) is purposefully dissipating
  152  assets outside the ordinary course of business to avoid payment
  153  of the judgment, the court may enter necessary orders as to that
  154  defendant to protect the plaintiff, including an order that the
  155  bond or equivalent surety be posted in an amount up to the full
  156  amount of the judgment against that defendant.
  157         (5)(3) This section does not apply to any past, present, or
  158  future action brought by the State of Florida against one or
  159  more signatories to the settlement agreement.
  160         Section 2. This act shall take effect upon becoming a law,
  161  and applies to all judgments entered on or after that date.
  162  
  163  ================= T I T L E  A M E N D M E N T ================
  164         And the title is amended as follows:
  165         Delete everything before the enacting clause
  166  and insert:
  167                        A bill to be entitled                      
  168         An act relating to tobacco settlement agreements;
  169         amending s. 569.23, F.S.; defining a term; requiring
  170         trial courts to stay the execution of all judgments in
  171         favor of certain former class action members during
  172         appellate proceedings upon the posting of a
  173         supersedeas bond or other surety by signatories,
  174         parents, successors, or affiliates of a signatory to a
  175         tobacco settlement agreement applicable to all such
  176         judgments; limiting the total cumulative value of all
  177         supersedeas bonds or other surety to a certain amount;
  178         permitting a court to order a specific defendant that
  179         dissipates assets to avoid payment of a judgment to
  180         increase the surety; providing applicability;
  181         providing an effective date.