Bill Summary for S 648 (2013-2014)

Summary date: 

Jun 11 2014

Bill Information:

View NCGA Bill Details2013-2014 Session
Senate Bill 648 (Public) Filed Tuesday, April 2, 2013
A BILL TO BE ENTITLED AN ACT TO CREATE TRANSPARENCY IN CONTRACTS BETWEEN THE ATTORNEY GENERAL AND PRIVATE ATTORNEYS, TO PREVENT THE ABUSE OF PATENTS, TO ALLOW FOR SHAREHOLDER ASSENT TO EXCLUSIVE FORUM, AND TO LIMIT ASBESTOS-RELATED LIABILITIES FOR CERTAIN SUCCESSOR CORPORATIONS.
Intro. by Jackson, Meredith, J. Davis.

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Bill summary

Senate amendments to the 3rd edition make the following changes.

Amendment #1 

Amends proposed GS 114-9.5 to provide that the Attorney General may give permission for a state agency to enter into a contingency fee contract that provides for the private attorney to receive an aggregate contingency fee in excess of specified percentages, depending on the amount of damages (was, may not give permission for a state agency to enter into a contingency fee contract that provides for the private attorney to receive a contingency fee in excess of 22.5 percent). Caps the aggregate contingency fee at $50 million. 

Amendment #2 

Adds a new part to the bill as follows. Enacts new GS 99B-13, creating a rebuttable presumption that the manufacturer did not fail to provide an adequate warning when, in a product liability action against a drug manufacturer, the drug that is alleged to cause harm was approved by the US Food and Drug Administration and the drug and its labeling were in compliance with the US Food and Drug Administration's approval at the time the drug left the manufacturers's control. The presumption may be rebutted by a preponderance of the evidence. Provides that the section does not apply if the claimant proves that the manufacturer, at any time before the event that allegedly caused the harm, did any of three specified activities. The section applies only to product liability claims alleging that a drug manufacturer failed to provide an adequate warning.

Applies to actions commenced on or after October 1, 2014. 

Amendment #3

Amends GS Chapter 99E by adding new Article 5, Successor Asbestos-Related Liability.

Adds new GS 99E-40 (Definitions), providing the terms and definitions to be used in this Article, including asbestos claimcorporationsuccessorsuccessor asbestos-related liability, and transferor.

Creates new GS 99E-42 (Limitation on successor asbestos-related liability), providing that, except as further limited in the statute, the cumulative successor asbestos-related liabilities of a successor corporation are limited to the fair market value of the total gross assets of the transferor, determined at the time of the merger/consolidation. No successor or asbestos-related liabilities are available in excess of this limitation. If a transferor assumes or incurs successor asbestos-related liabilities in connection with a prior merger/consolidation with a prior transferor, the fair market value of the total assets of the prior transferor determined at the time of the earlier merger or consolidation will be substituted for the limitation described above for purposes of determining the limitation of liability of a successor corporation.

Creates new GS 99E-41 (Applicability), establishing that the limitations in GS 99E-42 apply to any successor except for (1)  certain workers' compensation benefits, (2) claims against a corporation that are not considered a successor asbestos-related liability, (3) any obligation under 29 USC 151 or under any collective bargaining agreement, (4) certain successors that continued in the business of mining asbestos or in named related asbestos businesses.

Creates new GS 99E-43 (Establishing fair market value of total gross assets). Allows a successor corporation to establish fair market value of total gross assets for the purpose of limitations under GS 99E-35 through any one of the following methods: (1) by reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms-length transaction or (2) in the absence of other readily available information from which the fair market value can be determined by reference to the value of the assets recorded on a balance sheet.

Provides that total gross assets include intangible assets. Sets other conditions to the extent that total gross assets include any liability insurance that was issued to the transferor whose assets are being valued for purposes of this section, no insurance or other obligations will be affected.

Creates new GS 99E-44 (Adjustment), providing that the fair market value of total gross assets at the time of the merger/consolidation will increase annually at a rate equal to the sum of (1) the prime rate as listed in the Wall Street Journal for each calendar year since the merger/consolidation and (2) one percent.

The above calculation is subject to the following limitations: (1) the rate defined above cannot be compounded, (2) the adjustment of the fair market value of total gross assets will continue as provided above until the adjusted value is first exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid, and (3) no adjustment can be applied to any liability insurance that may be included in the definition of total gross assets in GS 99E-43.

Creates new GS 99E-45 (Scope of Article; application), providing that the article will be liberally construed with regard to successors and it will apply to all asbestos claims filed against a successor on or after the effective date of this act. 

Effective January 1, 2015.

Makes conforming changes to the act's title.

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