Florida Senate - 2009             CONFERENCE COMMITTEE AMENDMENT
       Bill No. CS/SB 2198, 1st Eng.
       
       
       
       
       
       
                                Barcode 911836                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: AD/CR          .                                
             05/08/2009 01:20 PM       .                                
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       The Conference Committee on CS/SB 2198, 1st Eng. recommended the
       following:
       
    1         Senate Conference Committee Amendment (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 569.23, Florida Statutes, is amended to
    7  read:
    8         569.23 Security bond requirements for tobacco settlement
    9  agreement signatories, successors, parents, and affiliates.—
   10         (1) As used in this section, the term “tobacco settlement
   11  agreement” means any settlement agreement, as amended, entered
   12  into by the state and one or more cigarette manufacturers in
   13  settlement of State of Florida v. American Tobacco Co., No. 95
   14  1466AH (Fla. 15th Cir. Ct.). As used in this section, the term
   15  “security” means supersedeas bonds, other surety permitted by
   16  Florida law, or cash.
   17         (2) In any civil action involving a signatory, or a
   18  successor, parent, or an affiliate of a signatory, to a the
   19  tobacco settlement agreement, as defined in s. 215.56005(1)(f),
   20  the security appeal bond to be furnished during the pendency of
   21  all appeals or discretionary appellate reviews, including
   22  reviews by the United States Supreme Court, of any judgment in
   23  such litigation shall be set pursuant to applicable laws or
   24  court rules, except that the total cumulative value of all
   25  security required to stay the execution of the judgment bond for
   26  all defendants may not exceed $100 million for all appellants
   27  collectively, regardless of the total value of the judgment.
   28         (3)(a)1.In civil actions against a signatory, or a
   29  successor, parent, or affiliate of a signatory, to a tobacco
   30  settlement agreement brought by or on behalf of persons who
   31  claim or have been determined to be members of a former class
   32  action that was decertified in whole or in part, the trial
   33  courts shall automatically stay the execution of any judgment in
   34  any such actions during the pendency of all appeals or
   35  discretionary appellate reviews of such judgment in Florida
   36  courts, upon provision of security as required in this
   37  paragraph. All security shall be provided through the posting
   38  with or payment into the registry of the clerk of the Supreme
   39  Court.
   40         2.The total amount of security that must be provided for
   41  all appellants collectively with regard to a single judgment is
   42  equal to the lesser of the amount of the judgment to be stayed
   43  or the amount of security per judgment required based on the
   44  following tiers of judgments on appeal in the courts of this
   45  state at the time the security is provided:
   46  
   47         TIER -			AMOUNT OF			MAXIMUM
   48         NUMBER			SECURITY			TOTAL
   49         OF JUDGMENTS		PER JUDGMENT		ALL SECURITY
   50                1-40		$5,000,000		$200,000,000
   51               41-80		$2,500,000		$200,000,000
   52              81-100		$2,000,000		$200,000,000
   53             101-150		$1,333,333		$199,999,950
   54             151-200		$1,000,000		$200,000,000
   55             201-300		  $666,667		$200,000,100
   56             301-500		  $400,000		$200,000,000
   57           501-1,000		  $200,000		$200,000,000
   58         1,001-2,000		  $100,000		$200,000,000
   59         2,001-3,000		   $66,667		$200,001,000
   60  
   61         3.In cases having multiple defendants, an individual
   62  appellant shall provide security in proportion to the percent or
   63  amount of liability specifically allocated against that
   64  appellant in the judgment, or, if liability is not specifically
   65  allocated in the judgment, for a share of the unallocated
   66  portion of the judgment determined by dividing the unallocated
   67  portion of the judgment equally among all defendants against
   68  whom the judgment is entered. Once an appellant has provided its
   69  required security with respect to a judgment, that appellant is
   70  entitled to a stay of that judgment regardless of whether other
   71  defendants in that case have provided the security required of
   72  them.
   73         4.When the number of judgments on appeal changes so that
   74  the total is within a higher or lower tier, the amount of
   75  security required in each case shall change by operation of law,
   76  upon notice provided by any party to all other parties and upon
   77  deposit within 30 days after notice of any additional security
   78  required hereunder, from the amount of security previously
   79  posted to an amount consistent with the statutory appeal bond
   80  rights prescribed in this paragraph. When the amount of security
   81  on deposit is changed pursuant to this subparagraph, the
   82  security shall be modified as follows:
   83         a.If the security on deposit is in the form of a
   84  supersedeas bond or other surety, the appellant shall replace or
   85  supplement that supersedeas bond or other surety with security
   86  in the new amount as required by this paragraph.
   87         b.If the security on deposit is in the form of cash, the
   88  clerk of the Supreme Court shall, as appropriate:
   89         (I)Upon the request of the appellant and notice to all
   90  appellees affected, refund to the appellant the difference
   91  between the amount of security on deposit and the reduced amount
   92  of security required or hold the difference as a credit against
   93  future security to be posted by that appellant; or
   94         (II)Record any additional cash provided by the appellant.
   95         (b)1.In any action subject to this subsection, if there is
   96  no appeal or discretionary appellate review pending in a Florida
   97  court and an appellant exercises its right to seek discretionary
   98  appellate review outside of Florida courts, including a review
   99  by the United States Supreme Court, the trial court shall
  100  automatically stay the execution of the judgment in any such
  101  action during the pendency of the appeal, upon provision of
  102  security as required in this paragraph. All security shall be
  103  provided through the posting with or payment into the registry
  104  of the clerk of the Supreme Court of this state.
  105         2.The amount of security shall be equal to the lesser of
  106  the amount of the judgment to be stayed or three times the
  107  security required to stay the execution of a judgment during all
  108  appellate review in Florida courts at the time appellate review
  109  is sought under this paragraph.
  110         (c)A claim may not be made against the security provided
  111  by an appellant unless an appellant fails to pay a judgment in a
  112  case covered by this subsection within 30 days after the
  113  judgment becomes final. For purposes of this subsection, a
  114  judgment is “final” following the completion of all appeals or
  115  discretionary appellate reviews, including reviews by the United
  116  States Supreme Court. If an appellant fails to pay a judgment
  117  within such time period, the security for that judgment provided
  118  by that appellant shall be available to satisfy the judgment in
  119  favor of the appellee. Upon satisfaction of the judgment in any
  120  case, the clerk of the Supreme Court may refund any security on
  121  deposit with respect to that case to the appellant upon an order
  122  from the trial court confirming satisfaction of the judgment.
  123         (d)The clerk of the Supreme Court shall collect fees for
  124  receipt of deposits under this subsection as authorized by ss.
  125  28.231 and 28.24(10)(a). In addition, for as long as any cash
  126  remains on deposit with the clerk pursuant to this subsection,
  127  the clerk of the Supreme Court is entitled to regularly receive
  128  as an additional fee the net investment income earned thereon.
  129  The clerk shall use the services of the Chief Financial Officer,
  130  as needed, for the custody and management of all bonds, other
  131  surety, or cash posted or deposited with the clerk. All fees
  132  collected pursuant to this subsection shall be deposited in the
  133  State Courts Revenue Trust Fund for use as specified by law.
  134         (e)1.It is the intent of the Legislature that the clerk of
  135  the Supreme Court maintain a record of the number of appeals in
  136  Florida courts and all security posted with or paid into the
  137  registry of the Supreme Court under this subsection. It is
  138  further the intent of the Legislature that the clerk regularly
  139  update the records to reflect any revisions in the amount of
  140  previously posted or paid security.
  141         2.A signatory, or a successor, parent, or affiliate of a
  142  signatory, to a tobacco settlement agreement shall maintain on a
  143  continuing basis an accounting of security provided under this
  144  subsection, including, but not limited to, the specific amount
  145  of security provided with respect to each specific judgment and
  146  the date on which it was provided, the amount and date of any
  147  adjustments upward or downward to security provided and the
  148  basis for the adjustment, and the date of any final disposition
  149  related to security. By July 15 of each year, the entity shall
  150  provide to the clerk of the Supreme Court an updated copy of the
  151  accounting reflecting activity through the immediately preceding
  152  June 30, in a manner prescribed by the Supreme Court. A verified
  153  copy of such accounting shall also be filed in each circuit
  154  court case in which each such judgment was entered.
  155         3.By August 1, 2009, a signatory, or a successor, parent,
  156  or affiliate of a signatory, to a tobacco settlement agreement
  157  shall provide to the clerk of the Supreme Court a list of all
  158  civil actions, as of the date the list is provided and
  159  identified by case name and court case number, against the
  160  signatory, or a successor, parent, or affiliate of a signatory,
  161  brought by or on behalf of persons who claim or have been
  162  determined to be members of a former class action that was
  163  decertified in whole or in part. A signatory, or a successor,
  164  parent, or affiliate of a signatory, shall provide to the clerk
  165  the same information on any additional actions filed within 60
  166  days after the additional action is joined.
  167         (f)This subsection expires December 31, 2012.
  168         (4)(2) Notwithstanding subsections (2) and (3) subsection
  169  (1), if, after notice and hearing, a plaintiff proves by a
  170  preponderance of the evidence that a defendant who posted or
  171  paid security under this section such bond or equivalent surety
  172  is purposefully dissipating assets outside the ordinary course
  173  of business to avoid payment of the judgment, the court may
  174  enter necessary orders as to that defendant to protect the
  175  plaintiff, including an order that the security bond or
  176  equivalent surety be posted or paid in an amount up to the full
  177  amount of the judgment against that defendant.
  178         (5)(3) This section does not apply to any past, present, or
  179  future action brought by the State of Florida against one or
  180  more signatories to the settlement agreement.
  181         Section 2. This act shall take effect upon becoming a law,
  182  and applies to all judgments entered on or after that date.
  183  
  184  ================= T I T L E  A M E N D M E N T ================
  185         And the title is amended as follows:
  186         Delete everything before the enacting clause
  187  and insert:
  188                        A bill to be entitled                      
  189         An act relating to tobacco settlement agreements;
  190         amending s. 569.23, F.S.; providing definitions;
  191         including a parent of a signatory to a tobacco
  192         settlement agreement within provisions limiting
  193         security required in certain appeals; prescribing the
  194         security necessary to stay execution of judgments
  195         pending appeal in actions by certain former class
  196         action members against signatories to a tobacco
  197         settlement agreement and related entities; prescribing
  198         the form and manner of posting or paying such
  199         security, the level of appeals to which the security
  200         is applicable, the amount of the security based on the
  201         number of appeals, the amount of security in cases
  202         having multiple defendants, and changes in the amount
  203         of security based on changes in the number of appeals;
  204         providing for the stay of execution of a judgment when
  205         a case is appealed to a court outside this state;
  206         prescribing the amount of security necessary to stay
  207         execution of such a judgment; providing conditions
  208         under which claims may be made against security
  209         provided for an appeal; prescribing when a judgment is
  210         final; authorizing the clerk of the Supreme Court to
  211         collect fees related to maintenance of such security;
  212         expressing legislative intent for the clerk of the
  213         Supreme Court to maintain records on the number of
  214         appeals and amount of security; requiring a signatory
  215         to a tobacco settlement agreement and related entities
  216         to maintain and provide to the clerk of the Supreme
  217         Court an accounting of security provided for appeals;
  218         requiring such signatory or related entity to provide
  219         information to the clerk on certain civil actions
  220         filed against the signatory or related entity;
  221         providing for future expiration of security provisions
  222         related to actions by former class action members;
  223         permitting a court to order a defendant that
  224         dissipates assets to avoid payment of a judgment to
  225         increase the appeal security; providing for
  226         applicability; providing an effective date.