Kool Cigarettes. John Disney/ALM.

An $11.3 billion settlement agreement from 1997 between Florida government and a group of tobacco companies was in the spotlight Tuesday when the Fourth District Court of Appeal considered whether R.J. Reynolds should continue paying millions of dollars a year for cigarette brands it no longer owns.

It's a case that demonstrates how the wording of an old contract — even if it is one of the largest court-approved settlements in U.S. history — can later come back to haunt its parties.

And whatever the outcome, someone's going to be unhappy.

In oral arguments via Zoom, R.J. Reynolds Tobacco Co. asked the court to reverse a trial court ruling finding it responsible for all state payments related to Salem, Winston, Kool and Maverick cigarettes.

R.J. Reynolds argued it washed its hands of those brands in 2015 when its parent company sold them to ITG Brands LLC, owned by Imperial Brands. ITG wasn't part of the crucial 1997 settlement in which R.J. Reynolds and other firms agreed to reduce advertising and pay the state $11.3 billion over 25 years in exchange for relief from liability and health costs stemming from smoking-related illnesses.

More than $100 million plus millions of annual payments in perpetuity is at stake, according to R.J. Reynolds, whose attorney Elliot Scherker of Greenberg Traurig in Miami pointed out that the agreement never included a brand transfer clause.

"What it did include was market share as the sole basis for proportional payments under the [Florida Settlement Agreement], cigarettes shipped in the United States," Scherker said. "It cannot be that RLR, which no longer manufactures or ships the acquired brands, is still liable for payments on shipments of those brands."

Scherker argued neither party is responsible because the purchase agreement only transferred R.J. Reynold's protections against liability to ITG, and didn't make it a successor to the settlement.

Scherker said his client still pays attorney fees related to the settlement "because we agreed to do it," and said it has paid Lorillard Tobacco Co.'s share of the settlement money since their $27 billion merger in 2015. But Scherker said nothing in their agreement mentions an obligation to pay the state based on ITG's cigarette sales.

'The end of the entire agreement'

Arguing for the government, Florida Solicitor General Amit Agarwal said that if R.J. Reynolds got its way, "this really would spell the end of the entire agreement."

Agarwal stressed that Mississippi, Texas and Minnesota courts have weighed the same issue and ruled the same way, finding R.J. Reynolds liable as part of its own market share for cigarettes sold under the transferred brands — which he said Reynolds made $7 billion from selling.

"It's undisputed that 16 billion cigarettes a year continue to be sold under the transferred brands and it's also undisputed that since then, no one, not Reynolds, not Imperial, has paid the state even a cent as to those 16 billion cigarettes every year, even though those cigarettes, of course, are causing the exact same problems that the annual payments in perpetuity are intended to provide compensation for," Agarwal said. "As a result, the state in the aggregate has now lost something on the order of $180 million, which could have been used to treat smoking-induced illnesses like lung cancer and heart disease, COPD."

Agarwal conceded, however, that the state doesn't care which party ultimately pays as long as it gets paid.

Counsel to settling defendant Philip Morris USA, Paul Vizcarrondo of Wachtell, Lipton, Rosen & Katz in New York said that as a party to the agreement it has the right to enforce its terms against R.J. Reynolds and ITG, which it claims is a successor.

Vizcarrondo alleged Imperial admitted during Delaware litigation that R.J. Reynolds was conspiring with it to dodge its settlement payments "at Philip Morris' expense."

"Because of the mechanics of the way that the annual payments are calculated, Reynolds' payments are less and Philip Morris' payments are more if Imperial is not a settling defendant under those calculations," Vizcarrondo said.

Elizabeth McCallum of Baker & Hostetler in Washington, D.C., noted that the trial court found her client ITG was not a successor and wasn't obligated to pay Florida. Reversing that, McCallum argued, would mean ignoring state corporate law, which says buyers don't assume liability for what they purchase unless they expressly agree.

McCallum also highlighted that both parties agreed ITG would "use its reasonable best efforts to attempt to reach agreement with Florida to assume obligations of a settling defendant" but claimed the state never followed through with negotiations.

Questions about fault and liability transferred under R.J. Reynolds's and ITG's purchase agreement are currently pending before a Delaware court.

Fourth DCA Judges Spencer Levine, Dorian Damoorgian and Alan Forst sat on the appellate panel, which is yet to rule.

 

More appeals:

In Rare News for Plaintiffs Lawyers, Miami Attorney Stages Fee Fight Against Big Tobacco — And Wins $2.4 Million

'Psychology Is Not a Precise Science': Florida Court Rules in Case Involving Parkland Shooter Nikolas Cruz