Tobacco investors survive courtroom heat
WASHINGTON (CBS.MW) -- Tobacco companies were handed yet another loss in a Florida courtroom Friday, but stocks barely budged.
Analysts said the muted reaction reflects a more optimistic, albeit cautious, outlook for the beleaguered sector, which has been under persistent pressure since the beginning of last year. Pressure has mounted amid fears the high-profile Engle class action trial under way in Miami could eventually bankrupt some of the industry's biggest players.
Friday, the jury in the Engle case awarded $6.9 million in compensatory damages to two smokers. The jury also awarded a record $5.8 million to a third plaintiff, but said the award shouldn't be collected because the statute of limitations had expired.
The Engle case is named after Howard A. Engle, a Miami physician suffering from emphysema.
Defendants include Phillip Morris (MO: news, msgs); RJR Tobacco (RJR: news, msgs); Brown & Williamson, a unit of BAT (BTI: news, msgs); Brooke Group (BGL: news, msgs); Lorillard, a unit of Loews Corp. (LTR: news, msgs); and two industry groups.
Under the controversial trial plan put in place by Circuit Judge Robert Kaye, the jury will next begin to consider lump-sum punitive damages for the entire Engle class, which consists of around 500,000 ill smokers. That has raised fears the industry could face punitive damages of as much as $300 billion.
Legal experts and analysts have argued that plaintiffs attorney Stanley Rosenblatt is more likely to seek closer to $100 billion in damages -- a still hefty amount. Rosenblatt isn't required to reveal the amount he is seeking on behalf of the class until his closing arguments in the punitive phase.
Legislation could delay damage payouts
Still stockholders seem unthreatened. Analysts said investors appear to be pinning their hopes largely on legislation recently introduced in Florida, which would essentially delay the payout of damages by tobacco companies.
The industry has argued that common law practice in Florida is for juries to set compensatory damages for all members of a class before awarding punitive damages. The legislation would codify that practice and would apply to the Engle case.
Roy Burry, an analyst who follows tobacco at Brown Brothers Harriman, said the legislation stands around a 50-50 chance of passing.
"It would, in the final phase (of the trial), make it much more difficult to result in real financial liability to the industry," Burry said. Brown Brothers Harriman has "buy" ratings on both Phillip Morris and RJR.
Florida is slated to receive more than $14 billion from tobacco companies over the next 25 years as part of the 1998 settlement agreement between the industry and the states. Much of that money has already been earmarked for state programs.
"In our opinion, the prime motivation for any member of Florida's House or Senate to vote in favor of such legislation is a desire to protect Florida's revenue stream," said Martin Feldman, a tobacco analyst at Salomon Smith Barney, in a recent research note.
Investor fears have centered on worries that a massive damage award would require companies to post bonds worth hundreds of millions of dollars, possibly driving some firms into bankruptcy.
A number of tobacco states have also taken action, rushing through legislation that would limit the size of such bonds to between $25 million to $100 million. Legal experts have questioned whether the laws are constitutional, however.
More class action trials possible
Meanwhile, tobacco opponents acknowledged that the Florida legislation, if passed, may take some of the heat off the industry, at least in the near term.
"The Florida legislation may do something to make it difficult to require a bond for a punitive damage award, so I think some of the pressure is off the companies," said Richard Daynard, chairman of the Tobacco Products Liability Project at Northeastern University.
But Daynard contends any respite may not be long-lived. The Engle case is the first class-action lawsuit to move to trial. Daynard predicts similar suits will eventually go to court in other states.
"I think the pressure is going to be unrelenting on the industry, though I think it's possible the Engle case itself won't push them into bankruptcy," Daynard said.
A California jury recently awarded $20 million in punitive damages to plaintiff Leslie Whitely. Some tobacco analysts saw the award as something of a victory for cigarette makers, given that Whitely was seeking $115 million.
In the Whitely case, cigarette makers argued that the tobacco industry has changed as a result of its 1998 settlement with the states and others. Cigarette makers open themselves up to renewed legal action by the states if they violate the terms of those agreements, essentially turning the state attorneys general into a tobacco police force, the firms argued.
The argument holds that the agreements negate the need for punitive damages, which are assessed solely to prevent defendants from repeating past bad behavior, Feldman said.
The analyst predicted tobacco companies will expand on that defense in the punitive phase of the Engle case. "If Stanley Rosenblatt seeks $100 billion in punitives and that jury subsequently reacts in a similar manner to the Whitely jury, then perhaps $17 billion may be awarded ... materially less than we think that the market is currently assuming," Feldman said.
Other analysts were less impressed by the Whitely outcome, however. Burry said the industry's punitive defense "was not that successful."
"Twenty million is still a lot. It's many multiples of the compensatory damages," he said.
Tobacco industry says it's changed
Phillip Morris said Friday it intends to present a "substantial defense" in the punitive phase, aimed at showing the jurors how the company has changed its business practices.
And the tobacco companies have repeatedly made clear they intend to attack Engle's class action status and Kaye's trial plan full force once they get to the appeals court.
The errors committed by the trial judge during this trial are too numerous to mention, but all of them will be raised during our appeal of the two adverse verdicts," RJR said in a statement.
Phillip Morris general counsel William S. Ohlemeyer said the company is pondering "how quickly" to ask an appeals court for a review of the trial procedure.
"An appellate court must eventually decide whether the trial court's decision to try this case as a class action was proper. In the meantime, we will present what we hope will be a compelling case against punitive damages," he said.
Meanwhile, analysts caution that the cloud has far from lifted over the sector. Ann Gurkin, an analyst at Davenport, said she is maintaining an "underperform" rating on the tobacco sector. After all, the industry is still on a losing streak in the courtroom, the outcome of the Florida legislation isn't certain, and Engle's potentially damaging punitive phase has yet to be decided.