Florida Senate - 2009 CS for SB 2198
By the Committee on Judiciary; and Senator Haridopolos
590-05733B-09 20092198c1
1 A bill to be entitled
2 An act relating to tobacco settlement agreements;
3 amending s. 569.23, F.S.; providing definitions;
4 requiring trial courts to stay the execution of all
5 judgments in favor of certain former class action
6 members during appellate proceedings upon the posting
7 of a supersedeas bond or other surety by signatories,
8 parents, successors, or affiliates of a signatory to a
9 tobacco settlement agreement applicable to all such
10 judgments; limiting the total cumulative value of all
11 supersedeas bonds or other surety to a certain amount;
12 permitting a court to order a specific defendant that
13 dissipates assets to avoid payment of a judgment to
14 increase the surety; providing applicability;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Section 569.23, Florida Statutes, is amended to
20 read:
21 569.23 Supersedeas bond requirements for tobacco settlement
22 agreement signatories, successors, and affiliates.—
23 (1) As used in this section, the term “tobacco settlement
24 agreement” means any settlement agreement, as amended, entered
25 into by the state and one or more cigarette manufacturers in
26 settlement of State of Florida v. American Tobacco Co., No. 95
27 1466AH (Fla. 15th Cir. Ct. 1996). As used in this section, the
28 term “appellant’s proportionate share of liability” means the
29 total liability for a judgment where there is a single defendant
30 or appellant, and, in cases where there are multiple defendants
31 or appellants, any amount specifically allocated against a
32 particular defendant or appellant in the judgment, and, where
33 liability is not specifically allocated in whole or in part
34 among multiple defendants or appellants, the amount of the
35 unallocated portion of the judgment divided equally among the
36 defendants or appellants.
37 (2) In any civil action involving a signatory, or
38 successor, parent, or an affiliate of a signatory to a the
39 tobacco settlement agreement, as defined in s. 215.56005(1)(f),
40 the supersedeas appeal bond or other surety to be furnished
41 during the pendency of all appeals or discretionary appellate
42 reviews, including reviews by the United States Supreme Court,
43 of any judgment in such litigation shall be set pursuant to
44 applicable laws or court rules, except that the total cumulative
45 value of all supersedeas bonds or other surety required to stay
46 the execution of the judgment bond for all defendants may not
47 exceed $100 million for all appellants collectively, regardless
48 of the total value of the judgment.
49 (3)(a)1. In civil actions against a signatory, successor,
50 parent, or affiliate of a signatory to a tobacco settlement
51 agreement brought by or on behalf of persons who claim or have
52 been determined to be members of a former class action that was
53 decertified in whole or in part, the trial courts shall
54 automatically stay the execution of judgments in any such
55 actions during the pendency of all appeals or discretionary
56 appellate reviews, including reviews by the United States
57 Supreme Court, upon provision of security required in this
58 subsection. Security shall be provided through the posting with
59 or payment into the registry of the clerk of the Supreme Court,
60 by each appellant individually, of supersedeas bonds, other
61 surety, or cash in an amount based upon or equal to the
62 appellant’s proportionate share of liability in all cases
63 pending appeal plus twice the statutory rate of interest on
64 judgments, provided that an individual appellant shall not be
65 required to provide total security for such purposes in excess
66 of the greater of either $5 million, or, $100 million multiplied
67 by the appellant’s percentage share of all payments to the state
68 of Florida in 2008 under the tobacco settlement agreement.
69 Regardless of the total value or number of the judgments, the
70 total cumulative value of all security required of all
71 appellants to stay the execution of all such judgments under
72 this subsection may not exceed $100 million for all appellants
73 collectively.
74 2. Upon the provision by any individual appellant of the
75 maximum security required by this subsection, the trial courts
76 shall stay the execution of judgments in all other cases covered
77 by this subsection during the pendency of all appeals or
78 discretionary appellate reviews, including reviews by the United
79 States Supreme Court, without requiring any additional
80 supersedeas bonds or other surety except as may be provided
81 below. By operation of law, each appellee whose judgment against
82 an appellant is stayed by operation of this subsection shall be
83 deemed a co-beneficiary of all security provided by that
84 appellant under this subsection, in the same proportion as the
85 appellee’s judgment has to the total amount of judgments against
86 such appellant which are stayed under this subsection.
87 (b) An appellant that has made payments into the registry
88 of the clerk of the Supreme Court pursuant to this subsection
89 may petition the circuit court in any case still pending or the
90 Supreme Court for an order directing the clerk of the Supreme
91 Court to refund any amount so deposited which exceeds the total
92 of the appellant’s proportionate share of liability of all
93 unsatisfied judgments then affected by this subsection. Such
94 refund shall be ordered upon a showing that the security
95 provided under this subsection by such appellant is no longer
96 necessary to pay outstanding judgments against the appellant.
97 Prior to acting on such petition, the court petitioned may
98 require proof of service of such petition to all affected
99 parties. The clerk of the Supreme Court shall make any refund so
100 ordered within 60 days after such order.
101 (c) Any security provided by an appellant under this
102 subsection is intended to secure the collection of judgments
103 against that appellant in cases covered by this subsection. No
104 claim may be made against such security unless an appellant does
105 not pay a judgment in a case covered by this subsection within
106 30 days after the judgment becomes final. For purposes of this
107 paragraph, a judgment is final following the completion of all
108 appeals or discretionary appellate reviews, including reviews by
109 the United States Supreme Court. In the event that an appellant
110 does not pay a judgment within such time period:
111 1. Any stay of execution required in favor of such
112 appellant under this subsection shall be immediately lifted by
113 operation of law, unless a stay is provided pursuant to some
114 other provision of law, rule of court, or judicial order; and
115 2. Any judgment creditor against whom a stay of execution
116 of a judgment against the appellant was in effect pursuant to
117 this subsection may petition the trial court or the Supreme
118 Court for an order directing the clerk of the Supreme Court to
119 equitably distribute any cash security provided under this
120 subsection by such appellant or for an order with respect to any
121 bond or other surety making equitable division of the proceeds
122 of such bond or surety. At any time, the clerk of the Supreme
123 Court may interplead any cash security provided by an appellant
124 under this subsection in any circuit court in which a case
125 affected by this subsection is then pending. Such court shall
126 make equitable distribution of such security to appellees whose
127 judgments against such appellant are secured by operation of
128 this subsection.
129 (d) The clerk of the Supreme Court shall collect fees for
130 receipt of deposits under paragraph (a) as authorized by ss.
131 28.231 and 28.24(10)(a). In addition, for as long as any cash
132 remains on deposit with the clerk pursuant to this subsection,
133 the clerk of the Supreme Court shall be entitled to regularly
134 receive as an additional fee, the net investment income earned
135 thereon. The clerk shall utilize the services of the Chief
136 Financial Officer, as needed, for the custody and management of
137 all bonds, other surety, or cash posted or deposited with the
138 clerk. All fees collected pursuant to this subsection shall be
139 deposited in the State Courts Revenue Trust Fund for use as
140 specified by law.
141 (e) On or before October 1, 2009, the Department of Revenue
142 shall provide to the clerk of the Supreme Court a report showing
143 the total tobacco settlement payments received by the state in
144 2008 and the percentage of that total received on behalf of each
145 settling manufacturer. Upon request of any judicial officer
146 administering any case affected by this subsection or of any
147 appellant that has provided security under this subsection, the
148 clerk of the Supreme Court shall certify to the trial court the
149 amount of security provided by a subject appellant and shall
150 certify whether such amount equals the maximum amount required
151 under paragraph (a), determined in reliance upon the report of
152 the Department of Revenue. Any trial court may make such further
153 inquiry as may be necessary to determine the existence of a stay
154 in a particular case. In addition, other evidence of the
155 security provided under this subsection through the clerk of the
156 Supreme Court shall be provided to the clerks of the circuit
157 court in such form as may be directed by the Supreme Court
158 acting in its administrative capacity.
159 (4)(2) Notwithstanding subsections (2) and (3) subsection
160 (1), if, after notice and hearing, a plaintiff proves by a
161 preponderance of the evidence that a defendant who posted a
162 supersedeas such bond or other equivalent surety or who made
163 cash payments into the registry of the clerk of the Supreme
164 Court pursuant to paragraph (3)(a) is purposefully dissipating
165 assets outside the ordinary course of business to avoid payment
166 of the judgment, the court may enter necessary orders as to that
167 defendant to protect the plaintiff, including an order that the
168 bond or equivalent surety be posted in an amount up to the full
169 amount of the judgment against that defendant.
170 (5)(3) This section does not apply to any past, present, or
171 future action brought by the State of Florida against one or
172 more signatories to the settlement agreement.
173 Section 2. This act shall take effect upon becoming a law,
174 and applies to all judgments entered on or after that date.