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.