Florida Reaches Settlement with Tobacco
Companies
- Florida announced August 25, 1997 that it had reached a settlement for
$11.3 billion with tobacco companies. The lawsuit, aimed at punishing the
industry and recovering Medicaid expenses spent on sick and terminally ill
smokers, originally sought $12. 3 billion ($1.3 billion for tax money
spent on sick smokers without insurance, $11 billion in punitive damages
against the tobacco industry). Florida's settlement, which came as
Congress is still mulling a proposed $368.5 billion national settlement
betwe en 40 states and the tobacco industry, is larger than Mississippi's
$3.6 billion settlement reached on July 3. The following is Florida's
settlement with the tobacco industry.
- IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
- THE STATE OF FLORIDA, et al.,
- Plaintiffs,
- v.
- THE AMERICAN TOBACCO COMPANY, et al.,
- Defendants.
- Civil Action No. 95-1466 AH
- SETTLEMENT AGREEMENT
- This Settlement Agreement is made as of this 25th day of August, 1997,
by and among the undersigned, and is intended to settle and resolve with
finality all present and future civil claims against all parties to this
litigation relating to the subject
matter of this litigation, which have been or could have been asserted by
any of the parties hereto.
- WHEREAS, the State of Florida commenced this action in February, 1995,
asserting various claims for monetary and injunctive relief on behalf of
the State of Florida against tobacco manufacturers and other
defendants;
- WHEREAS, Defendants have contested the claims in Florida's complaint
and amended complaints and Plaintiffs have contested the claims in
Defendants' counter and cross claims against the Florida Department of
Corrections and deny each and every one of t he Defendants'
allegations;
- WHEREAS, the State of Florida has, through its Governor, the Honorable
Lawton M. Chiles, Jr. and its Attorney General, the Honorable Robert A.
Butterworth, had a leadership role among the various states in maintaining
civil litigation against the toba cco industry and in seeking to forge an
unprecedented national resolution of the principal issues and
controversies associated with the manufacture, marketing and sale of
tobacco products in the United States;
- WHEREAS, through the efforts of the State of Florida and others a June
20, 1997 Memorandum of Understanding and attached Proposed Resolution
("Proposed Resolution") has been agreed to by members of the tobacco
industry, state attorneys general, privat e litigants and representatives
of public health groups which would provide for unprecedented and
comprehensive regulation of the tobacco industry while preserving the
right of individuals to assert claims for compensation;
- WHEREAS, the Proposed Resolution contemplates action by the United
States Congress and the President to enact and sign a new federal law with
respect to the tobacco industry, which action the tobacco industry has
agreed to support and which will requi re study and analysis by Congress
and the President;
- WHEREAS, jury selection in this action commenced on August 1, 1997,
and trial of the action is anticipated to last several months and a
continuance of such trial could prejudice the State of Florida. The State
of Florida and the undersigned defendant s have agreed to settle
independently the litigation commenced by the State of Florida pursuant to
financial terms comparable to the Proposed Resolution, which terms will
achieve for Florida immediately the financial benefits it would receive
pursuant to the national Proposed Resolution, should it become law;
- NOW THEREFORE, it is hereby agreed as follows:
- I. GENERAL PROVISIONS
- A. JURISDICTION
- The Settling Defendants and Plaintiffs acknowledge that this Court has
jurisdiction over the subject matter of this action and over each of the
parties to this Settlement Agreement. Jurisdiction is retained by the
Court for the purposes of enabling a ny party to this Settlement Agreement
to apply to the Court at any time for further orders and directions as may
be necessary and appropriate to implement or enforce this Settlement
Agreement, and the parties hereto agree to present any disputes under thi
s Settlement Agreement to this Court.
- Notwithstanding the dismissal of claims provided for herein, the
parties hereto agree that the Court will retain jurisdiction over the
State of Florida's claims for non-economic injunctive relief provided by
the Proposed Resolution. The parties heret o jointly request the Court to
set a trial date for the first Monday in August, 1998, or such later date
as the Court may direct, said trial to proceed only if the Proposed
Resolution or a substantially equivalent federal program has not been
enacted. If
the Proposed Resolution or a substantially equivalent federal program is
not enacted by June 1, 1998, the parties may, with the Court's permission,
commence any appropriate pre-trial proceedings relevant to the trial of
such issues. If the Proposed Reso lution or a substantially equivalent
federal program is enacted, any remaining claims shall be dismissed with
prejudice.
- B. APPLICABILITY
- This Settlement Agreement shall be binding upon all Settling
Defendants and their successors and assigns in the manner expressly
provided for herein and shall inure to their benefit and to that of their
respective directors, officers, employees, attor neys, representatives,
insurers, suppliers, distributors, agents and of any of their present or
former parents, subsidiaries, affiliates, divisions, or other
organizational units of any kind. This Settlement Agreement shall be
binding on and inure to the
benefit of the State of Florida, the named Plaintiffs, their
administrators, representatives, employees, officers, agents, legal
representatives; all Agencies, Departments, Commissions, and Divisions of
the State; all subdivisions, public entities, publ ic corporations,
instrumentalities, and educational institutions over which the State has
control; and their predecessors, successors and assigns.
- C. VOLUNTARY AGREEMENT OF PARTIES
- Settling Defendants understand and acknowledge that certain provisions
of this Settlement Agreement impose certain requirements on them that
could give rise to challenges under federal and State constitutions if the
State of Florida unilaterally impos ed them. The parties hereto
acknowledge and agree that this Settlement Agreement is voluntarily
entered into by all parties hereto as the result of arms length
negotiations during which all parties were represented by counsel. None
of the parties hereto
will seek to void this Settlement Agreement based on any constitutional
challenge to the provisions contained herein.
- D. DEFINITIONS
- 1. "Plaintiffs" means collectively the Plaintiffs, State of Florida,
Lawton M. Chiles, Jr., individually and as Governor of the State of
Florida, the Department of Business and Professional Regulation, the
Agency for Health Care Administration and th e Department of Legal
Affairs.
- 2. "State" or "State of Florida" means collectively the Plaintiffs,
State of Florida, Lawton M. Chiles, Jr., individually and as Governor of
the State of Florida, the Department of Business and Professional
Regulation, the Agency for Health Care Adm inistration, and the Department
of Legal Affairs, all of its officers acting in their official capacities
and any other department, subdivision or agency of the State, regardless
of whether a named Plaintiff.
- 3. "Settling Defendants" means those Defendants in this Action that
are signatories to this Settlement Agreement.
- 4. "Non-Settling Defendants" means those Defendants that are not
signatories to this Settlement Agreement.
- 5. "Market Share" means, for each year, a Settling Defendant's
respective share of sales of cigarettes for consumption in the United
States.
- 6. "Tobacco Products" shall be defined in the same manner as in the
Food and Drug Administration Rule and shall include Roll-Your-Own, Little
Cigars and Fine Cut.
- 7. "Billboards" includes billboards, as well as all signs and
placards in arenas and stadia, whether open-air or enclosed. "Billboards"
does not include: (1) any advertisements placed on or outside the premises
of retail establishments licensed to s ell Tobacco Products or any retail
point-of-sale; and (2) billboards or advertisements in connection with the
sponsorship by the Settling Defendants of any entertainment, sporting or
similar event, such as NASCAR, that appears in the State of Florida as p
art of a national or multi-state tour.
- 8. "Transit Advertisements" means advertising on private or public
vehicles and all advertisements placed at, on or within any bus stop, taxi
stand, waiting area, train station, airport or any similar location.
- 9. "Final Approval" means the date on which all of the following
shall have occurred:
- a. The Settlement Agreement is approved by the Court;
- b. Entry is made of an order of dismissal of claims or a final
judgment as provided herein; and
- c. The time for appeal or to seek permission to appeal from the
Court's approval as described in (a) hereof, and entry of such final
judgment or order of dismissal as described in (b) hereof has expired or
if appealed, the appeal has been dismissed or
the approval and judgment or order have been affirmed by the court of
last resort to which such appeal has been taken and such affirmance has
become no longer subject to further appeal or review.
- II. OBLIGATIONS OF PARTIES
- A. NON-MONETARY PROVISIONS
- 1. Elimination of Billboards and Transit Advertisements. Settling
Defendants agree to discontinue all Billboards and Transit Advertisements
of Tobacco Products in the State of Florida. Settling Defendants agree to
exercise their best efforts in coo peration with the State of Florida to
identify all Billboards that are located within 1000 feet of any public or
private school or playground in the State of Florida. Settling Defendants
will remove such Tobacco Product advertisements (leaving the space unused
or used for advertising unrelated to Tobacco Products) or, at the option
of the State of Florida, will allow the State of Florida, at its expense,
to substitute for the remaining term of the contract alternative
advertising intended to discourage t he use of Tobacco Products by
children under the age of 18. Settling Defendants agree to provide the
State of Florida with a preliminary list of the location of all Billboards
and Stationary Transit Advertisements within 30 days from the date of
executio n of this Settlement Agreement, such list to be finalized within
an additional 15 days, and to remove all Billboards and Transit
Advertisements for Tobacco Products within the State of Florida at the
earlier of the expiration of applicable contracts or 4 months from the
date the final list is supplied to the State of Florida. The parties
hereto also agree to cooperate to secure the expedited removal of up to 50
Billboards or stationary Transit Advertisements designated by the State of
Florida, within 30 days after their designation.
- Each Settling Defendant shall provide the Court and the Attorney
General, or his designee, with the name of a contact person to whom
Plaintiffs may direct inquiries during the time such Billboards and
Transit Advertisements are being eliminated, from whom the Plaintiffs may
obtain periodic reports as to the progress of their elimination and who
will be responsible for ensuring that appropriate action is taken to
remove any Billboards that have not been timely eliminated.
- 2. Support of Legislation and Rules. Following Final Approval of
this Settlement Agreement, Settling Defendants agree to support
legislative initiatives to enact new laws and administrative initiatives
to promulgate new rules intended to effectuate the following:
- a. The prohibition of the sale of cigarettes in vending machines,
except in adult-only locations and facilities;
- b. The strengthening of civil penalties for sales of Tobacco Products
to children under the age of 18, including the suspension or revocation of
retail licenses; and
- c. The strengthening of civil penalties for possession of Tobacco
Products by children under the age of 18.
- 3. Document Disclosure. Settling Defendants and the State of Florida
agree to cooperate to secure the expedited review of any decisions issued
prior to the date of this Settlement Agreement regarding the
inapplicability of any assertion of privilege
with respect to documents or other material. The documents covered by
this provision are those documents and materials which have been presented
to the Special Master, the Honorable R. William Rutter, Jr., and as to
which a Report and Recommendation has
been issued requiring the disclosure and production of such documents or
materials, for whatever reason.
- B. MONETARY PROVISIONS
- 1. Initial Payment -- General. On or before September 15, 1997,
Settling Defendants shall, pursuant to a mutually acceptable Escrow
Agreement, cause to be paid into a special escrow account (the "Escrow
Account"), for the benefit of the State of Flo rida, to be held in escrow
pending Final Approval, the sum of $550 million; that being Plaintiffs'
good faith estimate of the portion Florida would receive of the $10
billion payment provided for in Paragraph A on page 34 of the June 20,
1997 Memorandum o f Understanding and attached Proposed Resolution.
- 2. Initial Payment -- Pilot Program. In support of Florida's
demonstrated commitment to the meaningful and immediate reduction of the
use of Tobacco Products by children under the age of 18, Settling
Defendants also agree to support a pilot program (the "Pilot Program") by
the State of Florida, the elements of which shall be aimed specifically at
the reduction of the use of Tobacco Products by persons under the age of
18 years. Accordingly, on or before September 15, 1997, the Settling
Defendants s hall, pursuant to the Escrow Agreement, cause to be paid into
a second special escrow account (the "Second Escrow Account"), for the
benefit of the State of Florida, to be held in escrow pending Final
Approval of this Settlement Agreement, the sum of $200
million. The Pilot Program will commence upon Final Approval of this
Settlement Agreement and last for a 24-month period following such date.
The $200 million amount payable by Settling Defendants in support of the
Pilot Program shall be used only afte r approval by the Court and at the
rate of approximately $100 million per 12-month period for general
enforcement, media, educational and other programs directed to the
underage users or potential underage users of Tobacco Products, but shall
not be direc ted against the tobacco companies or any particular tobacco
company or companies or any particular brand of Tobacco Products.
- 3. Annual Payments. On September 15, 1998, (subject to adjustment
for actual market share by January 30, 1999), and annually thereafter, on
December 31st (subject to final adjustment within 30 days), each of the
Settling Defendants agrees, severally
and not jointly, that it shall cause to be paid into a special account
for the benefit of the State of Florida (the "Account"), pro rata in
proportion equal to its respective Market Share, its share of 5.5% of the
following amounts (in billions):
- Year
- 1
- 2
- 3
- 4
- 5
- 6
- thereafter
- Amount
- $4B
- $4.5B
- $5B
- $6.5B
- $6.5B
- $8B
- $8B
- The payments made to the Account by the Settling Defendants pursuant
to the calculation set forth in this paragraph shall be adjusted upward by
the greater of 3% or the Consumer Price Index applied each year on the
previous year, beginning with the fi rst annual payment. Such Payments
will also be decreased or increased, as the case may be, in accordance
with decreases or increases in volume of domestic tobacco product volume
sales as provided in Paragraph B.5 on pages 34-35 of the Proposed
Resolution . Any payment pursuant to this paragraph that is due to be
paid before Final Approval of this Settlement Agreement shall be paid into
the Escrow Account and shall be disbursed only as provided by the terms of
the Escrow Agreement. On September 15, 1998,
Settling Defendants shall pay $220 million without any adjustment, that
being Settling Defendants' and the State's best estimate of the first such
annual payment (in respect of 1998).
- 4. Use of Funds. The monies received under this Settlement Agreement
constitute not only reimbursement for Medicaid expenses incurred by the
State of Florida, but also settlement of all of Florida's other claims,
including those for punitive damages , RICO and other statutory theories.
In consonance with the Proposed Resolution, other than the Pilot Program
and legal expense reimbursement, the parties hereto anticipate that funds
provided hereunder, only after approval by the Court, will be used for
children's health care coverage and other health-related services, to
reimburse the State of Florida for medical expenses incurred by the State,
for mandated improvements in State enforcement efforts regarding the
reduction of sales of Tobacco Products to
minors, and to ensure the Proposed Resolution's performance targets. The
funds provided hereby may be used for such purposes as the State match
required to draw federal funds to provide children's health care coverage
and for enhancement of children's a nd adolescents' substance abuse
services, substance abuse prevention and intervention and children's
mental health services.
- 5. Adjustments in Event of Federal Resolution. In the event that the
Proposed Resolution is enacted as federal legislation, or if any
substantially equivalent federal program is enacted, the settlement
provided herein shall remain in place, but the terms of such Proposed
Resolution or federal program shall supersede the provisions of this
Settlement Agreement, except for the Pilot Program and to the extent that
the parties hereto have otherwise expressly agreed. In order to provide
the Settling Def endants with a full credit for all payments made
hereunder pursuant to paragraphs II.B.1 and II.B.3 of this Settlement
Agreement in the event of the enactment of the Proposed Resolution or
substantially equivalent federal program, and to the extent that t he
payments made pursuant to paragraphs II=2EB.1 and II.B.3 of this
Settlement Agreement shall differ from the amounts to be received by the
State of Florida pursuant to such Proposed Resolution or substantially
equivalent federal program, the parties her eto shall take whatever steps
are necessary to ensure that the principal amount of payments received by
the State of Florida will be the same as the amounts it would receive
pursuant to the Proposed Resolution or substantially equivalent federal
program.< P>
- C. DISMISSAL, WAIVER AND RELEASE OF CLAIMS
- 1. Dismissal of Plaintiffs' Claims. Upon approval of this Settlement
Agreement by the Court, Plaintiffs shall dismiss, with prejudice as to
Settling Defendants (including their parents and affiliates), and without
prejudice as to other Non-Settling D efendants, all claims in this Action,
except to the extent such claims seek non-economic injunctive relief
provided by the Proposed Resolution. In the event any Non-Settling
Defendants agree to comply with the non-economic terms contained in this
Settlem ent Agreement, Plaintiffs shall dismiss with prejudice all claims
against any such Non-Settling Defendants, except to the extent such claims
seek non-economic injunctive relief provided by the Proposed Resolution.
- 2. Plaintiffs' Waiver and Release. On the Final Approval Date, the
State of Florida shall release and forever discharge all Defendants and
their present and former parents, subsidiaries, divisions, affiliates,
officers, directors, employees, represe ntatives, insurers, agents,
attorneys and distributors (and the predecessors, heirs, executors,
administrators, successors, and assigns of each of the foregoing) (the
"Released Parties"), from any and all manner of civil claims, demands,
actions, suits, a nd causes of action, damages whenever incurred,
liabilities of any nature whatsoever, including costs, expenses, penalties
and attorneys' fees ("Claims"), known or unknown, suspected or
unsuspected, accrued or unaccrued, whether legal, equitable or statut ory,
both past, as to any claims that were or could have been made in this
action or any comparable federal action, and as to the future, as to all
Claims directly or indirectly based on, arising out of or in any way
related to, in whole or in part, the u se of or exposure to Tobacco
Products manufactured in the ordinary course of business, that the State
of Florida (including any of its past, present or future agents, officials
acting in their official capacities, legal representatives, agencies,
departme nts, commissions, divisions, subdivisions (political and
otherwise), public entities, corporations, instrumentalities, and
educational institutions, and whether or not any such person or entity
participates in the settlement), whether directly, indirectly ,
representatively, derivatively or in any other capacity, ever had, now has
or hereafter can, shall or may have (hereinafter, collectively, the
"Released Claims"). Notwithstanding any provision herein, Plaintiffs do
not release the claims for non-econom ic relief reserved under this
Settlement Agreement, and Defendants retain all defenses thereto.
- The State of Florida hereby covenants and agrees that it shall not,
hereafter, sue or seek to establish civil liability against any Released
Party based, in whole or in part, upon any of the Released Claims. The
State of Florida agrees that this cove nant and agreement shall be a
complete defense to any such civil action or proceeding; provided,
however, that those Non-Settling Defendants which are not parents or
affiliates of the Settling Defendants shall be entitled to the foregoing
release and cove nant not to sue only upon their assent to comply with the
non-economic provisions of this Settlement Agreement and the Waiver of
Claims.
- 3. Settling Defendants' Waiver and Dismissal of Claims. Upon Final
Approval, Settling Defendants shall waive any and all claims against any
of the Plaintiffs in this action including the State, or against any of
their officers, employees, agents, c ounsel, witnesses (fact or expert),
whistle-blowers or contractors, relating to or in connection with this
litigation and shall dismiss, with prejudice, any pending claims or
actions against such persons or entities that arise out of this litigation
of th is lawsuit.
- IV. MOST FAVORED NATION
- The Settling Defendants agree that if they enter into any future
pre-verdict settlement agreement of other litigation brought by a
non-federal governmental plaintiff on terms more favorable to such
governmental plaintiff than the terms of this Settlem ent Agreement (after
due consideration of relevant differences in population or other
appropriate factors), the terms of this Settlement Agreement will be
revised so that the State of Florida will obtain treatment at least as
relatively favorable as any s uch non-federal governmental entity.
- V. COSTS AND FEES
- On or before September 30, 1997, the Settling Defendants shall cause
to be paid to the Attorney General of Florida $10 million for the best
estimate of costs and expenses attributable to his office and other
appropriate state agencies or entities in c onnection with this litigation
(cost for public employees shall be at prevailing market rates); and on or
before September 30, 1997, the Settling Defendants shall further cause to
be paid $12 million to the Plaintiffs' private counsel for their best
estim ate of their costs and expenses. Thereafter the Attorney General's
Office, the appropriate state entities and Florida's private counsel shall
provide the Settling Defendants with an appropriately documented statement
of their costs and expenses. The Set tling Defendants shall promptly pay
the amount of such costs and expenses in excess of the above $22 million,
or shall receive a refund or a credit against other payments due hereunder
if the total of such costs and expenses shall be less than $22 million .
Any dispute as to the nature or amount of reimbursable costs and expenses
shall be decided with finality by the persons selected to award fees, as
provided below.
- Settling Defendants agree to pay, separately and apart from the above,
reasonable attorneys' fees to private counsel. If the Proposed Resolution
or substantially equivalent federal program is enacted, the amount of such
fees will be set by a panel of
independent arbitrators with finality, subject to an appropriate annual
cap on all such payments and other conditions. In the absence of any such
legislation enacting the Proposed Resolution or a substantially equivalent
federal program, attorneys' fees
in connection with this litigation will be awarded in the same manner
(subject to the appropriate annual cap and other conditions) by three
independent arbitrators selected by the parties hereto.
- In addition to the foregoing, in the event of the enactment of the
Proposed Resolution or other substantially equivalent federal program, the
parties hereto contemplate that the State of Florida and any other similar
state which has made an exceptiona l contribution to secure the resolution
of these matters may apply to the panel of independent arbitrators for
reasonable compensation for its efforts in securing the Proposed
Resolution, subject to an appropriate separate annual cap on all such
payments.
- VI. MISCELLANEOUS
- A. HEADINGS. The headings of the paragraphs and sections of this
Settlement Agreement are not binding and are for reference only and do not
limit, expand, or otherwise affect the contents of this Settlement
Agreement.
- B. NO ADMISSION. This Settlement Agreement and any proceedings taken
hereunder are not intended and shall not in any event be construed as, or
deemed to be, an admission or concession or evidence of any liability or
any wrongdoing whatsoever on the p art of any party or any Released Party.
The parties hereto and Released Parties specifically disclaim and deny any
liability or wrongdoing whatsoever with respect to the allegations and
claims asserted against them in this action and enter into this Settl
ement Agreement solely to avoid the further expense, inconvenience, burden
and uncertainty of litigation.
- C. NON-ADMISSIBILITY. These settlement negotiations have been
undertaken by the parties in good faith and for settlement purposes only,
and neither this Settlement Agreement nor any evidence of negotiations
hereunder, shall be offered or received in evidence in this Action, or any
other action or proceeding, for any purpose other than in an action or
proceeding arising under this Settlement Agreement.
- D. AMENDMENT. This Settlement Agreement may be amended only by a
writing executed by all signatories hereto and any provision hereof may be
waived only by an instrument in writing executed by the waiving party.
The waiver by any party of any breach of this Settlement Agreement shall
not be deemed to be or construed as a waiver of any other breach, whether
prior, subsequent, or contemporaneous, of this Settlement Agreement.
- E. COOPERATION. The parties to this Settlement Agreement and their
attorneys agree to use their best efforts and to cooperate with each other
to cause this Settlement Agreement to become effective, to obtain all
necessary approvals, consents and auth orizations, if any, and to execute
all documents and to take such other action as may be appropriate in
connection therewith. The parties hereto may agree, without further order
of the Court, to reasonable extensions of time to carry out any of the
provi sions of this Settlement Agreement.
- F. GOVERNING LAW. This Settlement Agreement shall be governed by the
law of the State of Florida.
- G. CONSTRUCTION. None of the parties hereto shall be considered to be
the drafter of this Settlement Agreement or any provision hereof for the
purpose of any statute, case law or rule of interpretation or construction
that would or might cause any pr ovision to be construed against the
drafter hereof.
- H. INTENDED BENEFICIARIES. This Action was brought by the State of
Florida, through its Governor and Attorney General, to recover certain
monies and to promote the health and welfare of the people of Florida. No
portion of this Settlement Agreement shall provide any rights to, or be
enforceable by, any person or entity that is not a party hereto or a
Released Party.
- I. COUNTERPARTS. This Settlement Agreement may be executed in
counterparts. Facsimile or photocopied signatures shall be considered as
valid signatures as of the date hereof, although the original signature
pages shall thereafter be appended to this
Settlement Agreement.
- ENTERED INTO THIS 25th DAY OF AUGUST, 1997.
- WEST PALM BEACH,
- STATE OF FLORIDA
- By:
- Lawton M. Chiles, Jr., Governor
- Robert A. Butterworth, Attorney General
- PHILIP MORRIS INCORPORATED
- By:
- R.J. REYNOLDS TOBACCO COMPANY
- By:
- BROWN & WILLIAMSON TOBACCO CORPORATION
- By:
- LORILLARD TOBACCO COMPANY
- By:
- UNITED STATES TOBACCO COMPANY
- By:
- DATE: August 25, 1997
This is a page in the section entitled Lawyers Make Billions at Expense of Sick and Dying
Smokers in the Web site entitled Legal Reform
Through Transforming the Discipline of Law into a Science.