State v. Philip Morris Inc.

30 A.D.3d 26, 813 N.Y.S.2d 71
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 6, 2006
StatusPublished
Cited by29 cases

This text of 30 A.D.3d 26 (State v. Philip Morris Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Philip Morris Inc., 30 A.D.3d 26, 813 N.Y.S.2d 71 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Sweeny, J.

The case before us arises out of the ultimate settlement of a lawsuit brought by numerous governmental entities against major tobacco producers to recoup health-care costs associated with tobacco use. The negotiations leading up to this settlement were extensive and exhaustive. The result was a written agreement between the states and the tobacco companies, called the “Master Settlement Agreement” (MSA), which set forth in detail the rights and responsibilities of the parties, including the amounts to be paid by the tobacco companies and the formulae used to compute the various payments to be made. In an attempt to obviate future litigation concerning certain computations and payments to be made by the tobacco companies, the agreement contained an arbitration clause which could be invoked under certain circumstances. The interpretation of that clause is the subject of this litigation. The issue before us is whether the arbitration clause in the MSA applies to determinations concerning specific application of downward adjustments to payments due from appellants. For the following reasons, we hold that it does.

[28]*28Only the four largest tobacco companies were the original participating manufacturers (OPMs) in the settlement. The MSA permitted, other companies to join the settlement, even if they were not part of the original suit, to avoid future litigation. Approximately 40 additional tobacco companies, including the three nonparty appellants herein, joined in the settlement and are referred to in the MSA as “subsequent participating manufacturers’’ (SPMs).

The MSA provides for each settling manufacturer to make an annual lump-sum payment, as well as to agree to certain marketing restrictions and other obligations. The payment obligation is calculated annually and allocated among the settling governmental entities. The calculation of how much is owed is made by an Independent Auditor. The calculation begins with an agreed upon annual aggregate payment as set forth in the MSA ($6.5 billion in 2002, rising to $9 billion in 2018). The aggregate amount is allocated to the OPMs and SPMs based on market share, which is calculated by the percentage share of the total number of cigarettes sold nationally, and is then subject to certain adjustments. One such adjustment is designed to compensate all participating manufacturers for any loss of market share that may be attributable to the competitive disadvantage these companies face as a result of the MSA, as against nonparticipating manufacturers (NPMs). This “NPM Adjustment” is calculated by the Independent Auditor on a nationwide basis utilizing a procedure set forth in the MSA.

The Auditor first compares the aggregate market share of the participating manufacturers with their aggregate market share for the base year 1997. If the aggregate market share has decreased by more than 2%, there is a “Market Share Loss.” For each year where the Market Share Loss is greater than zero, the MSA provides that “a nationally recognized firm of economic consultants (the ‘Firm’) shall determine whether the disadvantages experienced as a result of the [MSA] were a significant factor contributing to the Market Share Loss for the year in question” (MSA § IX [d] [1] [C]). Only if the Firm determines that the MSA was a significant factor contributing to the Market Share Loss will the NPM Adjustment apply. The determination of the Firm is final and nonappealable.

Section IX (d) (2) provides that the NPM Adjustment shall apply to the allocated payments of all settling states, except that a settling state will not be subject to the NPM Adjustment “if such Settling State continuously had a Qualifying Statute [29]*29... in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due, and diligently enforced the provisions of such statute during the entire calendar year,” or if the settling state enacted a Model Statute and diligently enforced it. If a settling state fell within this exception, then the NPM Adjustment would be reallocated among all other settling states, on a pro rata basis.

Each individual state court retains jurisdiction for purposes of implementing and enforcing the MSA. However, section XI (c) of the MSA, entitled “Resolution of Disputes,” provides:

“Any dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX (j) or subsection XI (i) shall be submitted to binding arbitration before a panel of three neutral arbitrators, each of whom shall be a former Article III federal judge. Each of the two sides to the dispute shall select one arbitrator. The two arbitrators so selected shall select the third arbitrator. The arbitration shall be governed by the United States Federal Arbitration Act.”

Section IX (j) specifically includes the NPM Adjustment and section XI (i) is captioned “Miscalculated or Disputed Payments.”

The dispute here involves the calculation of the payment due in 2004, and whether an NPM Adjustment, as calculated from the 2003 Market Share Loss, should have been applied. During the computation process for that year, the nonparty appellants requested that the Independent Auditor apply an NPM Adjustment, based on the calculation that the SPMs had suffered a Market Share Loss in 2003. The states, including New York, opposed such an adjustment, arguing that each state enacted a “Model Statute” within the meaning of section IX (d) (2), and that there is a presumption that the statutes are being diligently enforced. As a result, they claim that unless there has been a “significant factor” determination (i.e., that the MSA was a significant factor in the Market Share Loss of the SPMs), and that the Model Statutes were not being enforced, the Independent Auditor should not use any NPM Adjustment in making its [30]*30calculations. In effect, they argue that both a “significant factor” determination and a finding that the Model Statutes are not being enforced are conditions precedent to the Independent Auditor applying an NPM Adjustment in its calculations.

When the Independent Auditor issued its preliminary calculations on March 5, 2004, it determined the potential NPM Adjustments were applicable to the SPMs, including appellants herein. However, based upon an explicit finding that all settling states had enacted Model Statutes that are in full force and effect, it did not apply the NPM Adjustment in arriving at the final amount due for that year.

A notice of dispute was filed by the SPMs, and the Independent Auditor solicited and received input, including oral argument, from all parties. On March 31, 2004, it issued its final calculations and report. It assumed the MSA was a “significant factor,” although no such determination had been made by the “Firm.” The loss was calculated at approximately $31 million. Nevertheless, it did not apply the NPM Adjustment on the basis that the states had enacted proper statutes and asserted that they were being diligently enforced.

The Independent Auditor thereafter attempted to informally resolve the dispute, without result.

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Bluebook (online)
30 A.D.3d 26, 813 N.Y.S.2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-philip-morris-inc-nyappdiv-2006.