IN THE SUPREME COURT STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA THE STATE OF FLORIDA, et al. : : Appellants, : : v. : Case Nos. 93,148 & : 93,195 THE AMERICAN TOBACCO COMPANY, : et al., : : Appellees. : District Court of Appeal : - Fourth District : Nos & STATE OF FLORIDA, et al., : : Appellants, : Circuit Court Case : No. CL AE v. : : AMERICAN TOBACCO COMPANY, et al., : : Appellees, : : APPELLANTS' INITIAL BRIEF CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. Post Office Box 150 West Palm Beach, FL Telephone: (561) Facsimile: (561) Attorneys for Appellants Stephen J. Krigbaum (978019) F. Townsend Hawkes ( ) Joseph Ianno, Jr. (655351)

2 TABLE OF CONTENTS Table of Authorities... ii Introduction... 1 Statement of the Case and Facts... 1 Summary of Argument... 8 ARGUMENT I. THE MFN ORDER ERRONEOUSLY FAILED TO INCLUDE A NECESSARY TERM AND ALSO IMPROPERLY ADDED TERMS THAT WERE NOT PART OF THE TEXAS AGREEMENT A. The MFN Order adopted by the trial court failed to include a release of Settling Defendants B. The trial court improperly added terms to the Florida Settlement Agreement that were not included in the Texas Settlement Agreement 13 Conclusion Certificate of Service i

3 TABLE OF AUTHORITIES Cases: Dorson v. Dorson, 393 So. 2d 632, 633 (Fla. 4th DCA 1981) M&C Assoc. v. State Dept. of Transp., 682 So. 2d 640 (Fla. 2d DCA 1996) Video Super Stores, Inc. v. Mastriana, 575 So. 2d 326 (Fla. 4th DCA 1991) Woodco, Inc. v. B & H Realty Corp., 501 So. 2d 1330 (Fla. 3d DCA 1987) Other authorities: Fla. R. App. P (a)(3)(C)(ii)... 1 ii

4 INTRODUCTION Appellants, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company and United States Tobacco Company (the "Settling Defendants"), appeal a non-final order of the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, pursuant to Fla. R. App. P (a)(3)(C)(ii). The trial court s order modified certain terms of a settlement between the Settling Defendants and the State of Florida, pursuant to a Most Favored Nation provision in the parties settlement agreement (the MFN Clause ). The stated justification for the modification was to provide the State of Florida with the benefit of additional terms agreed to by Settling Defendants as part of a later settlement of similar litigation with the State of Texas. In fact, the court s order imposed on both the State of Florida and Settling Defendants new terms, to which neither party had agreed as part of any settlement, far exceeding the court s authority to modify the settlement agreement under the terms of the MFN Clause. STATEMENT OF THE CASE AND FACTS 1. The Settlement Agreement Between The Parties. On August 25, 1997, Settling Defendants and the State of Florida entered into an agreement to settle certain claims brought by the State for reimbursement of healthcare costs allegedly incurred as a result of smoking. (Settlement Agreement, State's 1

5 App. 56.) 1 In addition to releases by the State and undertakings by Settling Defendants, including commitments to make certain payments to the State, the Settlement Agreement contained two terms that are at issue in the proceedings below that are the subject of this appeal. The first of these terms was an agreement by Settling Defendants, in section V of the Settlement Agreement, to pay reasonable attorneys fees to the private counsel that the State had retained on a contingency-fee basis to pursue its lawsuit against the Settling Defendants ( private counsel ). As part of the settlement, Settling Defendants agreed to pay such attorneys fees in an amount set by arbitrators and subject to an appropriate annual cap on all such payments and other conditions. (Settlement Agreement, Section V, State s App. 56.) While Section V stated the basic terms of Settling Defendants agreement to pay counsel s fees, it did not and was not intended to reflect the entire agreement of the parties on that subject. For example, Settling Defendants payments of fees were expressly conditioned on and subject to an aggregate annual cap of $500 million on all payments of fees by Settling Defendants on a national basis, in connection 1 Prior to certification to this Court, the Fourth District Court of Appeal consolidated Appellants' appeal, Philip Morris, Inc., et al. v. State of Florida, 4th DCA Case No , along with the State's pending Petition for Writ of Prohibition, 4th DCA Case No , under the State's initial appeal, State of Florida v. The American Tobacco Company, et al., 4th DCA Case No References to the State's Appendix refer to the Appendix filed in Fourth DCA Case No

6 with the resolution of tobacco and health litigation. (Affidavit of Arthur F. Golden dated February 2, 1998 ( Golden Affidavit, Appendix Tab 1, p. 1-3). This agreed condition and others were to be included in a side-letter agreement, rather than the settlement agreement itself, and drafts of such letters were exchanged prior to the conclusion of the settlement. No such letter was executed when the settlement was concluded, however, as a result of time pressures to enter into the settlement. (Golden Affidavit, p. 3.) The second term of the Settlement Agreement that relates directly to the procedures below is the MFN Clause, which provides as follows: The Settling Defendants agree that if they enter into any future pre-verdict settlement agreement of other litigation brought by a non-federal government plaintiff on terms more favorable to such governmental plaintiff than the terms of this Settlement 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 such non-federal governmental entity. (State's App. 56 at 13.) This provision of the Settlement Agreement was invoked as the source of the trial court s authority to issue the order on appeal. 3

7 2. The Aftermath Of The Settlement. Shortly after the conclusion of settlement between the State of Florida and Settling Defendants, it became apparent that, notwithstanding Settling Defendants agreement to pay fees pursuant to arbitration, certain of the State s private counsel intended to seek fees under their contingency-fee contract with the State. These private counsel sought to enforce their contract rights through charging liens filed against all settlement payments. The State sought to quash these liens and, in addition, asked the trial court to compel immediate arbitration of attorneys fees, notwithstanding the State of Florida s and Settling Defendants agreement that arbitration would not commence until late (State s App. 47.) This motion was initially granted, then later vacated on the State s motion. (State s App. 37, 38). While these matters were being litigated, Settling Defendants separately entered into an agreement with the State of Texas that, in most respects, closely tracked their settlement with the State of Florida. (Texas Settlement Agreement, Appendix Tab 2). As in Florida, Settling Defendants agreed to pay attorneys fees pursuant to arbitration and subject to a national cap on all such payments. Unlike the Florida agreement, however, the Texas agreement was signed by Texas s private counsel, each of whom expressly agreed to the terms of Settling Defendants agreement to pay attorneys fees pursuant to arbitration, which were set forth in a detailed exhibit 4

8 to the Texas agreement (the Texas Exhibit ). As part of the arbitration agreement described in the Texas Exhibit, each Texas private counsel expressly acknowledged that its claim against Settling Defendants with respect to attorneys fees was limited to payment under the terms of the Texas Exhibit. In addition, the Texas Exhibit included an agreement by Settling Defendants to pay up to $50 million as an advance on fees to Texas private counsel, conditioned on the State of Texas s continuing agreement to pay an equivalent amount. Following Settling Defendants entry into the Texas settlement, one of Florida s private counsel, W.C. Gentry, filed a motion to incorporate the terms of the Texas Exhibit under the Florida Settlement Agreement pursuant to the MFN Clause (the Gentry MFN Proposal ). (State App. 40). Given the continued controversies in Florida with respect to Settling Defendants agreement to pay attorneys fees and the essential similarity between the terms of the Texas Exhibit and those agreed to by Settling Defendants with respect to payment of Florida s private counsel (except as to payment of the $50 million advance, which Settling Defendants were prepared to agree to in Florida on the terms set forth in the Texas Exhibit), Settling Defendants had no objection to incorporation of the Texas Exhibit as part of the Florida settlement provided that the terms were the same as the terms agreed to in Texas. 5

9 The different course of the Florida litigation precluded simple adaptation of the Texas terms, however. In Florida, unlike Texas, the private attorneys were no longer acting collectively, nor were they parties to Settling Defendants agreement with the State to arbitrate and pay private counsel s fees. Indeed, certain private counsel were openly hostile to the arbitration arrangement. In addition, in Florida, unlike Texas, the State was not prepared to commit to making an advance payment of fees to its private counsel. In response to the Gentry MFN proposal, the court urged the State, Settling Defendants and private counsel to attempt to come to an agreement as to the effect of the Texas Settlement on the Florida Settlement in light of the Most Favored Nation clause. Accordingly, over a course of several weeks, Settling Defendants negotiated with the State and Mr. Gentry in the hopes of reaching an agreement as to the precise terms of a fee arbitration process for Florida modeled on the Texas Exhibit. Settling Defendants were prepared to make a number of concessions both to the State and to Mr. Gentry. Nothing in the Texas Exhibit was consistent with Settling Defendants payment of fees under such circumstances. Accordingly, each of the concessions Settling Defendants were prepared to make to the State and Gentry with respect to arbitration of fees was conditioned on the inclusion of two terms in Florida that had no counterparts in the Texas Exhibit: first, 6

10 a provision requiring an express waiver and release of all claims by any private counsel that elected to participate in the feearbitration process, and second, a provision expressly excusing Settling Defendants from any obligation to pay fees with respect to those private counsel that rejected fee-arbitration on Settling Defendants terms. When it became clear that the parties could not agree as to all of the terms that would govern payment of attorneys fees in Florida, the State, Settling Defendants and Mr. Gentry each submitted a proposed addendum to the Settlement Agreement containing detailed arbitration terms. Although the various proposed addenda were largely consistent with respect to the basic procedures that would govern the arbitration process, they differed in a number of significant respects. The most significant, for purposes of this appeal, was that only the Settling Defendants proposal attempted to preserve the basic feature of the Texas arbitration process that Settling Defendants would be paying fees pursuant to arbitration only to private counsel who had agreed to such a process. Ultimately, the Court approved the terms of the feearbitration addendum proposed by Mr. Gentry, rejecting the competing proposals of both the State and Settling Defendants in an order dated April 16, In at least three critical respects, however, the arbitration arrangement imposed on Settling Defendants 7

11 by the Court bears no resemblance to the Texas Settlement that ostensibly justified revision of the Settlement Agreement pursuant to the MFN clause. First, it arguably allows private counsel both to accept Settling Defendants offer with respect to arbitration and to assert further claims against Settling Defendants based on their offer to arbitrate fees. Second, while it roughly tracks the Texas Exhibit insofar as it provides for payment of an advance to private counsel by the State, it also requires Settling Defendants to repay the State for its advance even though such a term is not a part of the Texas agreement. Finally, the April 16th Order included a provision stating that Settling Defendants will not seek to oppose a request by the State of Florida of additional compensation in an amount of $250 million, a term that does not appear in the Texas Exhibit. SUMMARY OF ARGUMENT The Settlement agreement a contract between Settling Defendants and the State of Florida cannot be revised over the parties objection except in accordance with the parties agreed MFN clause. The courts April 16th Order cannot be justified as a revision to the Florida settlement pursuant to other litigation the ostensible justification for the order under the Most Favored Nation clause. By consenting to the Most Favored Nation clause, Settling Defendants agreed, prospectively, that they would be subject under the Florida settlement to terms agreed to as part of 8

12 subsequent settlements. The terms under which Settling Defendants have been ordered to arbitrate fees in Florida had not been agreed to by Setting Defendants in any other case. The court s order cannot be justified under the Most Favored Nation clause of the settlement agreement. The MFN Order failed to incorporate a provision necessary to make the Florida settlement consistent with the Texas settlement, and incorporated language in the provisions that was not included in the Texas Settlement Agreement. Because the Texas Settlement Agreement was structured to include Texas' private counsel as signatories, who agreed that this sole recourse against the Settling Defendants for attorneys' fees was through the fee arbitrating process, it was necessary to include a release provision barring Florida's private counsel participating in the arbitration process from asserting additional claims for fees against the Settling Defendants. In addition, the trial court incorrectly included a provision that required Settling Defendants to reimburse the State of Florida for the $50 million advance payment on attorneys' fees required under the MFN Order. This reimbursement was not a part of the Texas settlement. The trial court also improperly included a provision that barred the Settling Defendants from objecting to any application by the State for $250 million in additional compensation for its exceptional contribution 9

13 to any national legislation. Again, this language was not contained in the Texas Settlement Agreement. 10

14 ARGUMENT I. THE MFN ORDER ERRONEOUSLY FAILED TO INCLUDE A NECESSARY TERM AND ALSO IMPROPERLY ADDED TERMS THAT WERE NOT PART OF THE TEXAS AGREEMENT. Pursuant to the Settlement Agreement adopted as an enforceable order of the Court, the Settling Defendants agreed that the terms of the Settlement Agreement could be revised based on certain later settlements with non-federal government plaintiffs. The Settling Defendants and the State of Texas entered into a Settlement Agreement after the Florida settlement. The Texas Settlement Agreement contained certain provisions regarding arbitration of attorneys' fees that established more complete procedures for resolution of disputes in this area that the State of Florida viewed as more favorable to it pursuant to the Most Favored Nation provision quoted previously. After several hearings, the State of Florida, Settling Defendants and private counsel, W.C. Gentry, submitted proposals for the implementation of the Most Favored Nation provision. The trial court adopted and implemented the proposal submitted by private counsel over the objections of all parties to the Settlement Agreement. The proposal submitted by private counsel and ultimately adopted by the trial court was flawed and failed to comply with the express terms of the Settlement Agreement and the intent of the Most Favored Nation provision. A. The MFN Order adopted by the trial court failed to include a release of the Settling Defendants. 11

15 The Texas Settlement Agreement, including Exhibit 1 thereto, was executed by the State of Texas, Settling Defendants and Private Counsel. In Texas, Private Counsel, as signatories, expressly agreed to participate in the fee arbitration process and expressly agreed that the arbitration process was the exclusive remedy of Private Counsel for the recovery of attorneys' fees as against the Settling Defendants. In contrast, Florida's Private Counsel did not execute the Settlement Agreement and did not agree that the fee arbitration process is their exclusive remedy. 2 In order to incorporate the Texas arbitration provisions into the Florida Settlement Agreement, a release of all claims against Settling Defendants by Florida Private Counsel who participate in the arbitration process should have been included in the MFN Order. Because the Texas private counsel had actually signed the Texas Settlement Agreement, they were bound by its terms, and could look only to the arbitration process to satisfy their claims for fees against Settling Defendants. See Woodco, Inc. v. B & H Realty Corp., 501 So. 2d 1330 (Fla. 3d DCA 1987) and Video Super Stores, Inc. v. Mastriana, 575 So. 2d 326 (Fla. 4th DCA 1991) (settlement not binding on person not a party to agreement). In order to make the two agreements function in an equivalent manner, the trial court should have required Florida's Private 2 In fact, one of Florida's Private Counsel has sued two of the Settling Defendants for tortious interference with the contingency fee contract for the recovery of its attorneys' fees. 12

16 Counsel who participate in the fee arbitration process to release the Settling Defendants from any further claims for attorneys' fees. If the arbitration provisions were to be incorporated into the Florida agreement, simple logic dictated that participating counsel should be bound by the arbitration process and required to release Settling Defendants from other claims for attorneys' fees. Because the terms of the Texas settlement regarding arbitration were to be incorporated into Florida's agreement, the trial court's failure to include this release was error. B. The trial court improperly added terms to the Florida Settlement Agreement that were not included in the Texas Settlement Agreement. The purpose of the MFN provision in the Florida Settlement Agreement is to permit the incorporation of certain terms in later settlements into the Florida agreement. The MFN provision is not intended to allow the trial court to rewrite the terms of the Settlement Agreement between the State of Florida and the Settling Defendants. The trial court exceeded its authority under the MFN provision when it included certain provisions in the MFN Order amending the Florida Settlement Agreement that were not contained in the Texas Settlement Agreement. First, the Texas agreement did not provide that Texas' payment of $50 million as an advance on attorneys' fees to private counsel would be reimbursed to Texas by the Settling Defendants. Instead, the Texas 13

17 agreement provided that a $50 million advance payment on fees would be made by Texas as well as the Settling Defendants, but imposed no obligation on Settling Defendants to reimburse Texas for its $50 million advance on fees. The Texas settlement provided: (f) Advance of Payment of Fees. (i) Settling Defendants collectively and the State of Texas each will advance $50 million to Private Counsel toward payment of attorneys' fees to counsel retained by the State of Texas in this action, such amounts to be credited to the Settling Defendants and the State of Texas, in the amounts of their respective advances, against subsequent payments of attorney's fees. The obligation of Settling Defendants to advance such amount is expressly conditioned on the continuing agreement of the State of Texas to advance an equal amount in accordance with the terms of the Settlement Agreement and this Exhibit. Such advance will be made by Settling Defendants severally and not jointly in proportion to their respective market shares, as set forth in Rider B hereto, within 45 days after the date of the Settlement Agreement and shall be paid to Walter Umphrey on behalf of Private Counsel. The advance to be made by the State of Texas shall be made no later than ten days after Final Approval of the Settlement Agreement or July 10, 1998, whichever is later. If the full amount of the advance to be made by the State of Texas is not paid by such date, the Settling Defendants shall be entitled to a refund of the advance paid by Settling Defendants in an amount equal to the unpaid portion of the State's advance. (Texas Settlement, Appellants' App. 2, Exhibit 1 at 6) In contrast, the trial court improperly include the following underlined language in its MFN Order amending the Florida settlement: (f) Advance on Payment of Fees. 14

18 (i) Settling Defendants collectively and the State of Florida each will advance $50 million to Private Counsel toward payment of attorneys' fees to counsel retained by the State of Florida in this action, such amounts to be credited to the Settling Defendants and the State of Florida, in the amounts of their respective advances, against subsequent payments of attorney's fees awarded by the panel. The State of Florida shall be repaid its advance from the first $50 million paid by Settling Defendants as a result of the panel's award and Settling Defendants shall receive a credit against the next $50 million awarded. The obligation of Settling Defendants to advance such amounts is expressly conditioned on the continuing agreement of the State of Florida to advance an equal amount. Such advance will be made by Settling Defendants severally and not jointly in proportion to their respective market shares, within 30 days of adoption of this agreement and shall be paid to David Fonvielle, Esquire on behalf of Private Counsel. The advance to be made by the State of Florida shall be made from the escrow account for prepayment of attorneys' fees pursuant to Order of Court. If the full amount of the advance to be made by the State of Florida is not paid, the Settling Defendants shall be entitled to a refund of the advance paid by Settling Defendants in an amount equal to the unpaid portion of the State's advance. (emphasis added) (State's App. 1, Exhibit 1 at 6-7 ). This new provision requiring Settling Defendants to reimburse the State of Florida for its advance payment of fees was simply not included in the Texas Settlement Agreement. Under the MFN provision in the Florida Settlement Agreement, the trial court was without the authority to add a term in Florida that is not included in the Texas agreement. 15

19 The trial court also included language in a second provision that cannot be found in the Texas agreement. This second provision reads: (h) Application by State in Event of National Legislation. If legislation implementing the Proposed Resolution (or a substantially equivalent federal program) is enacted, Settling Defendants and the State of Florida contemplate that the State of Florida and any other similar state which has made an exceptional contribution to secure the resolution of these matter may apply to the national panel of independent arbitrators described in subsection (g) for reasonable compensation for its efforts in securing enactment of such legislation. As provided in defendants' 8 K submissions, Settling Defendants will not oppose application of $250 million by the State of Florida. Any amount awarded to the State of Florida by such panel shall be paid in conjunction with awards to other governmental entities and shall be paid in proportion to the respective unpaid amounts of such awards, subject to a separate annual cap of $100 million on the total of all such payments to be made by Settling Defendants. (emphasis added) (State's App. 1, Exhibit 1 at 7-8). The Texas settlement did not include the underlined language, stating that Settling Defendants would not oppose a $250 million additional award to Florida based on a claim of "exceptional contribution". (Texas settlement, Appellants' App. 2, Exhibit 1 at 7). Again, the trial court exceeded its authority and erred by adding a new term to the Florida settlement which simply did not appear in the Texas settlement. 16

20 Where the parties have entered into a settlement agreement, their rights and duties are merged into that agreement, and its provisions are binding on the trial court as well as the parties. See M&C Assoc. v. State Dept. of Transp., 682 So. 2d 640 (Fla. 2d DCA 1996). This is especially true of settlement agreements, which are highly favored in the law. See Dorson v. Dorson, 393 So. 2d 632, 633 (Fla. 4th DCA 1981). The trial court was simply not free to rewrite the provisions of the Settlement Agreement by adding terms that were not included in the Texas Settlement Agreement. Based on the foregoing, the trial court erred in (1) failing to require a release of Settling Defendants by Private Counsel participating in fee arbitration, and (2) including language in both paragraphs (f)(i) and (h) that was not part of the Texas agreement. 17

21 CONCLUSION This Court should reverse and remand with directions that a release provision be added to the arbitration provisions in the Florida Settlement Agreement, and that the new language in paragraphs (f)(i) and (h) in Exhibit 1 of the MFN Order be stricken. Respectfully submitted, CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. Post Office Box 150 West Palm Beach, FL Telephone: (561) Facsimile: (561) Attorneys for Appellants Stephen J. Krigbaum (978019) F. Townsend Hawkes ( ) Joseph Ianno, Jr. (655351) 18

22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail to all counsel on the attached service list this day of July, Joseph Ianno, Jr. Florida Bar No