Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages

Conclusion

So that’s the story. Would we do it again, knowing what we do now? Absolutely. Although the commitment went far beyond anything we anticipated and the work and expenses exceeded every estimate we made, the case brought a rogue industry to justice. We couldn’t stop the sale of a legal product but we were able to force Tobacco to foot the bill for the costs of treating smoking related diseases paid by the State of Florida. That alone will free up approximately $17 billion to Florida’s citizens over the first 25 years of the settlement period. Hopefully, Florida’s anti-smoking programs funded by the settlement will convince the majority of our youth to avoid Tobacco’s web. Although I already knew most of the Team members before the case, being in the trenches of a case like this with these guys really solidified some friendships. Unfortunately, Governor Chiles died a year after the case settled and was unable to see some of his efforts come to fruition. He was a wonderful person who always had the best interests of the citizens of Florida first on his agenda. Without him, the case of the State of Florida vs. Big Tobacco would not have occurred. Most satisfying was the smile on Governor Chiles’ face when he announced to the world we had settled on his terms and the Tobacco billboards were coming down in Florida.

As with our other mass tort or project cases prior to Tobacco, Fonvielle Hinkle & Lewis has adjusted back to normal following this case. The files in the case of the State of Florida vs. Big Tobacco are now in storage and are beginning to accumulate dust. The cleanup and recovery period has been extensive but it is once again “business as usual” at our office. Contrary to rumors, none of us are retiring; we are all looking forward to the continuation and expansion of our law practice representing injured persons.

The Attorney's Fee Dispute

As some of you may know from all of the press surrounding the attorneys’ fees in this case, a dispute arose among Team members over how we were to be paid under the Settlement Agreement. Pursuant to the terms of the agreement, the Tobacco Industry agreed to pay our fees over and above the payments to be made to the State, but only if the Trial Team agreed to have the amount of our fees determined through an arbitration process and thereafter paid over an extended period of years. This provision was inconsistent with our contingent fee contract and the Trial Team split over the issue of enforcing our contingent fee contract with the State or electing to accept the fee arbitration process.

Fonvielle Hinkle & Lewis was among the Team members who believed it to be in the best interest of our client to go to arbitration and let the Tobacco Industry pay our fees in addition to the State’s recovery. On the other hand, our lack of trust for this Industry made it difficult to relinquish our rights under our contract with the State. Although the arbitration process is designed to create a neutral process for resolution of an issue such as the amount of our fees, the fact that the Tobacco Industry required this process before they would pay our fee made us all very uncomfortable. Ultimately, the dilemma was solved when the Governor agreed that the Trial Team could go to arbitration, consider the result, and then elect to accept the arbitration results or proceed to enforce our contract with the State.

Three of the team members, including myself, accepted the responsibility of preparing a detailed presentation for the arbitration panel. Once again a portion of Fonvielle Hinkle & Lewis was totally devoted to Tobacco issues as we spent several months preparing a video and written presentation for the arbitration panel.

Our position before the panel was that our contract with the State of Florida for a 25% contingent fee was reasonable under the circumstances of this case. If 25% of the recovery was a reasonable fee when we undertook this case, it should be equally reasonable once we prevailed. As it turned out, the facts of the case spoke for themselves. Eleven million dollars in costs advanced by the Trial Team plus the unbelievable amount of work required by us during the litigation, coupled with a risk factor so high that we had been unable to convince even one of the big Miami personal injury law firms to join our Team, made for persuasive argument.

Ultimately, the arbitration panel agreed with our position and awarded the Florida Trial Team a fee that computes to approximately 25% of Florida’s recovery in the case. The significant factor here is that our fee, as awarded by the arbitration panel, will be paid by the Tobacco Industry over and above the recovery paid to the State of Florida. With these results from our fee arbitration, the entire Trial Team immediately elected to accept the fee awarded by the arbitration panel and release the State of Florida from our original contract. This final proceeding allowed the State of Florida to keep every dime of every Tobacco payment instead of having to pay 25% of each payment to us. In addition to our fees, Tobacco also agreed to reimburse the Trial Team for the $11 million in out-of-pocket costs that we had advanced during the case.