{ "id": 4269654, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LORILLARD TOBACCO COMPANY et al., Defendants-Appellees", "name_abbreviation": "People v. Lorillard Tobacco Co.", "decision_date": "2007-03-30", "docket_number": "No. 1\u201406\u20142326", "first_page": "190", "last_page": "199", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 190" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "814 N.E.2d 933", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "936-37" } ], "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083918 ], "year": 2004, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0772-01" ] }, { "cite": "761 N.E.2d 724", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "730", "parenthetical": "\"order of the circuit court to compel or stay arbitration is injunctive in nature and subject to interlocutory appeal under paragraph (a)(1) of the rule\"" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29928 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "11", "parenthetical": "\"order of the circuit court to compel or stay arbitration is injunctive in nature and subject to interlocutory appeal under paragraph (a)(1) of the rule\"" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0001-01" ] }, { "cite": "826 N.Y.S.2d 181", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 2006, "opinion_index": 0 }, { "cite": "859 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "7 N.Y.3d 716", "category": "reporters:state", "reporter": "N.Y.3d", "year": 2006, "opinion_index": 0 }, { "cite": "30 A.D.3d 26", "category": "reporters:state", "reporter": "A.D.3d", "case_ids": [ 3651649 ], "weight": 10, "year": 2006, "pin_cites": [ { "page": "32-33" }, { "page": "76" }, { "page": "31" }, { "page": "75" }, { "page": "32" }, { "page": "76" }, { "page": "32" }, { "page": "76" }, { "page": "32-33" }, { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ad3d/30/0026-01" ] }, { "cite": "905 A.2d 42", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 2006, "pin_cites": [ { "page": "49", "parenthetical": "explaining that \"[although the agreement thus limits the subject matter of the disputes that are arbitrable, it employs broad language in defining the scope of the disputes that fall within that subject matter\"" }, { "page": "50" } ], "opinion_index": 0 }, { "cite": "279 Conn. 785", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 3668609 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "798", "parenthetical": "explaining that \"[although the agreement thus limits the subject matter of the disputes that are arbitrable, it employs broad language in defining the scope of the disputes that fall within that subject matter\"" }, { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/conn/279/0785-01" ] } ], "analysis": { "cardinality": 958, "char_count": 24306, "ocr_confidence": 0.747, "pagerank": { "raw": 6.982491104371647e-08, "percentile": 0.42242308335350826 }, "sha256": "7696d0244c7e51ecdb8e029f1ed27d64f93b0d280497d8ba714c14926dd36b1e", "simhash": "1:5b78dfb69e1dd215", "word_count": 3816 }, "last_updated": "2023-07-14T16:46:01.247775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LORILLARD TOBACCO COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GALLAGHER\ndelivered the opinion of the court:\nThe State of Illinois (Illinois) filed this interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)), from an order of the circuit court of Cook County, which, among other things, compelled arbitration of the instant dispute between the parties. We affirm and remand.\nBACKGROUND\nSeveral years ago, Illinois, as well as other states and jurisdictions, filed suit against several tobacco manufacturers based upon alleged wrongdoing in the marketing and advertising of their cigarettes. Illinois alleged, inter alia, that the manufacturers had defrauded the public by concealing evidence of smoking\u2019s adverse health effects and by affirmatively misleading the public with medical research reports. Illinois sought to recover the billions it had spent on health care for its residents with smoking-related illnesses.\nOn November 23, 1998, the defendant tobacco manufacturers entered into a Master Settlement Agreement (MSA) with 46 states, including Illinois, as well as the District of Columbia, Puerto Rico, the United States Virgin Islands, American Samoa, the Northern Mariana Islands, and Guam. Although not all states, these settling entities are referred to as Settling States in the MSA. The Settling States agreed to dismiss their lawsuits and release past and future claims in exchange for annual payments from the tobacco manufacturers, as well as several other concessions, including marketing and advertising restrictions. The instant case involves the annual payment due for the calendar year 2003.\nOriginally, only the four largest tobacco companies, defendants Philip Morris, Inc. (Philip Morris), R.J. Reynolds Tobacco Co., Inc. (Reynolds), Lorillard Tobacco Co., Inc. (Lorillard), and a fourth company, Brown & Williamson, entered into the MSA. In 2004, Brown & Williamson merged with defendant Reynolds. As the first tobacco companies to enter into the MSA, Philip Morris, Reynolds, and Lorillard became known as \u201coriginal participating manufacturers\u201d (OPMs). The MSA permitted other tobacco companies to join into the settlement in order to avoid future litigation. Many did so and became known as \u201csubsequent participating manufacturers\u2019\u2019 (SPMs). The remaining defendants in this case, Commonwealth Brands, Inc.; Daughters and Ryan, Inc.; Farmers Tobacco Co. of Cynthiana, Inc.; House of Prince A/S; Japan Tobacco International U.S.A., Inc.; King Maker Marketing, Inc.; Kretek International, Inc.; Liberty Brands, LLC; Liggett Group LLC; ET. Djarum; Peter Stokkebye Tobaksfabrik A/S; Santa Fe Natural Tobacco Co., Inc.; Sherman 1400 Broadway N.Y.C., Inc.; Top Tobacco, L.P.; Vibo Corporation, d/b/a General Tobacco; Virginia Carolina Corp., Inc.; and von Eicken Group are SPMs. Collectively, the OPMs and SPMs are referred to as participating manufacturers (PM). Those tobacco companies that did not enter into the settlement are known as nonparticipating manufacturers (NPMs).\nThe MSA requires the PM to make annual payments that are intended to help the Settling States achieve \u201csignificant funding for the advancement of public health measures\u201d and \u201cthe implementation of important tobacco-related public health measures.\u201d The PM do not make payments directly to individual Settling States. Rather, each PM is required to make a single, nationwide payment into an escrow account on April 15 of each year, which is then allocated among the Settling States. The PM\u2019 payment obligation is calculated and determined annually by an \u201cIndependent Auditor.\u201d The MSA provides that \u201c[t]he Independent Auditor shall be a major, nationally recognized, certified public accounting firm.\u201d Currently, the Independent Auditor is PricewaterhouseCoopers.\nThe MSA contains a comprehensive formula for the Independent Auditor to use in determining the PM\u2019 annual payment obligation. The starting point is the aggregate base payment obligation for all OPMs set forth in the MSA. This amount is then subject to several adjustments. One of these adjustments is the \u201cNon-Participating Manufacturer Adjustment\u201d (NPM Adjustment), which is at issue in the present case.\nAs noted earlier, NPMs are tobacco companies that have not joined the MSA. Therefore, these NPMs \u2014 unlike their PM competitors \u2014 are not subject to the MSA\u2019s marketing restrictions and payment obligations. The drafters of the MSA recognized that the marketing restrictions and payment obligations could put the PM at a competitive disadvantage relative to the NPMs and potentially cause PM to lose market share to NPMs. Thus, the NPM adjustment attempts to level the playing field by reducing the annual payment obligations of PM if, collectively, it is proven that they actually lost market share to NPMs. The threshold question is whether the PM experienced a collective loss of United States market share of more than 2%, relative to their combined market share in 1997 (the year before the MSA went into effect). Without such a loss, the analysis ends and the PM are not entitled to an NPM Adjustment. In the instant case, however, the parties do not dispute that the PM experienced such a loss.\nWhere the PM do experience an aggregate market share loss of more than 2%, the next step is for an economic consulting firm (the Firm) to determine \u201cwhether the disadvantages experienced as a result of the provisions of [the MSA] were a significant factor contributing to the Market Share Loss.\u201d If the PM experience the requisite aggregate market share loss and the Firm also concludes that the MSA was a \u201csignificant factor\u201d contributing to that loss, the MSA provides that the NPM Adjustment shall apply.\nEven if an NPM Adjustment is otherwise potentially available to PM, the MSA contains a way for a Settling State to avoid a reduction in payments. Specifically, the MSA provides that \u201c[a] Settling State\u2019s Allocated Payment shall not be subject to an NPM Adjustment *** if such Settling State continuously had a Qualifying Statute *** 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 such entire calendar year.\u201d (Emphasis added.) MSA \u00a7IX(d)(2)(B). The MSA additionally provides that \u201c[t]he aggregate amount of the NPM Adjustments that would have applied to the Allocated Payments of those Settling States that are not subject to an NPM Adjustment *** shall be reallocated among all other Settling States pro rata in proportion to their respective Allocable Shares *** and such other Settling States\u2019 Allocated Payments shall be further reduced accordingly.\u201d MSA \u00a7IX(d)(2)(C).\nThe Present Dispute\nThe present dispute concerns the Independent Auditor\u2019s decision not to apply an NPM Adjustment to the PM\u2019 April 17, 2006, annual payments. This litigation had its origins in early 2004, when certain PM requested that the Independent Auditor offset the amount of the 2003 NPM Adjustment. Certain SPMs did file suit in Connecticut and New York to compel arbitration. The courts in those states ultimately determined that the disputes were arbitrable under the MSA. See State v. Philip Morris, Inc., 279 Conn. 785, 905 A.2d 42 (2006); State v. Philip Morris, Inc., 30 A.D.3d 26, 32-33, 813 N.Y.S.2d 71, 76 (2006), appeal allowed, 7 N.Y.3d 716, 859 N.E.2d 921, 826 N.Y.S.2d 181 (2006). The dispute regarding the NPM Adjustment continued into 2006 and resulted in this litigation.\nUnder the MSA, each year, the Independent Auditor collects information from the parties. MSA \u00a7XI(d)(l). The Independent Auditor must then issue its \u201cPreliminary Calculation\u201d of the amounts due from the PM at least 40 days before the April payment date. MSA \u00a7XI(d)(2). Specifically, the MSA requires the Independent Auditor to deliver to all the parties \u201cdetailed Preliminary Calculations *** of the amount due from each [PM] *** showing all applicable *** adjustments *** and setting forth all the information on which the Independent Auditor relied in preparing such Preliminary Calculations.\u201d MSA \u00a7XI(d)(2). Any party that disagrees with \u201cany aspect\u201d of the Independent Auditor\u2019s Preliminary Calculations may serve notice of its objections upon the other parties. MSA \u00a7XI(d)(3). The Independent Auditor reviews any objections and then issues a \u201cFinal Calculation,\u201d which must include an explanation of any changes made to the Preliminary Calculations. MSA \u00a7XI(d)(4). Again, the parties may serve notice of any objections they may have to the Final Calculation. MSA \u00a7XI(d)(6).\nAfter the Firm concluded that the MSA was a \u201csignificant factor\u201d contributing to the PM\u2019 2003 market share loss, the OPMs requested that the Independent Auditor offset the amount of the 2003 NPM Adjustment against their April 17, 2006, payments.\nIn response, the Settling States objected and urged the Independent Auditor not to apply the 2003 NPM Adjustment on the same grounds on which it had relied in prior years, namely, that the Independent Auditor should \u201cpresume\u201d diligent enforcement of their Quahfying Statutes.\nOn March 7, 2006, the Independent Auditor issued its Preliminary Calculation of the 2006 annual payment. The Independent Auditor did not apply the NPM Adjustment in its Preliminary Calculation. Thus, as requested by the Settling States, the Independent Auditor effectively presumed that the Settling States were diligently enforcing their Qualifying Statutes. The Independent Auditor defended its non-application of the 2003 NPM Adjustment until such time as the parties or a trier of fact resolved the dispute over the issue of \u201cdiligent enforcement\u201d with regard to the Quahfying Statutes. The Independent Auditor explained that it was not charged with that responsibility nor was it \u201cqualified to make the legal determination as to whether any particular State [had] \u2018diligently enforced\u2019 its Qualifying Statute.\u201d\nAs the Settling States further note, the Independent Auditor stated that its decision not to grant the NPM Adjustment was \u201c[b]ased on the data available at this time\u201d \u2014 i.e., until it received \u201c[additional [information\u201d in the form of some \u201cResolution of the question related to diligent enforcement of the qualifying statutes.\u201d\nOn March 29, 2006, the Independent Auditor issued its Final Calculation and reiterated that it would not award an NPM Adjustment for 2003 until such time as the parties or a trier of fact resolved the dispute over the issue of \u201cdiligent enforcement\u201d with regard to the Qualifying Statutes.\nOn April 10, 2006, the OPMs served notice that they disputed the Independent Auditor\u2019s final calculation. Nonetheless, the OPMs paid the full amounts calculated by the Independent Auditor on the due date of April 17, 2006. Reynolds and Lorillard, however, paid the sums attributable to the disputed amount into the \u201cDisputed Payments Account\u201d as provided in the MSA. MSA \u00a7\u00a7XI(d)(7), (d)(8).\nOn April 19, 2006, Illinois filed a motion to enforce the MSA and the consent decree and for declaratory relief in the circuit court of Cook County. Illinois sought, among other things, a declaration that it had \u201cdiligently enforced its Qualifying Statute\u201d and that \u201cany NPM adjustment to Illinois MSA payments as defined in Section IX(d) [of the MSA] is inappropriate.\u201d\nOn April 20, 2006, the OPMs requested that Illinois arbitrate the parties\u2019 dispute pursuant to section XI(c) of the MSA. In their letter, the OPMs referred to the state courts in other jurisdictions that had already determined that the dispute was arbitrable. Illinois refused to arbitrate, noting that it had already filed suit over what it believed to be separate, nonarbitrable issues that would moot the issues raised in the OPMs\u2019 letter.\nOn May 2, 2006, the OPMs filed a motion to compel arbitration and dismiss the State\u2019s motion or, in the alternative, stay this litigation. The remaining defendants, all SPMs, joined in the OPMs\u2019 motion.\nAfter briefing and oral argument, the circuit court, on August 8, 2006, granted the OPMs\u2019 motion to compel arbitration and stayed the case pending the outcome of the arbitration. The circuit court concluded that the plain and unambiguous language of the MSA\u2019s arbitration clause required arbitration of the parties\u2019 dispute concerning the NPM Adjustment, including the State\u2019s diligent enforcement defense. On August 21, Illinois timely filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307. 188 Ill. 2d R. 307.\nANALYSIS\nThe State correctly notes that this court has jurisdiction under Supreme Court Rule 307(a)(1) to review the circuit court\u2019s order granting Illinois\u2019s motion to compel arbitration. See Salsitz v. Kreiss, 198 Ill. 2d 1, 11, 761 N.E.2d 724, 730 (2001) (\u201corder of the circuit court to compel or stay arbitration is injunctive in nature and subject to interlocutory appeal under paragraph (a)(1) of the rule\u201d).\nThe circuit court did not hold an evidentiary hearing and concluded that the plain and unambiguous language of the MSA required arbitration of this dispute. Thus, our review is de novo. Cohen v. Blockbuster Entertainment, Inc., 351 Ill. App. 3d 772, 776, 814 N.E.2d 933, 936-37 (2004).\nIn each settling state, the court that approved the MSA and entered the corresponding consent decree is referred to as that State\u2019s \u201cMSA Court.\u201d The MSA provides that each MSA Court \u201cshall retain exclusive jurisdiction for the purposes of implementing and enforcing this Agreement and the Consent Decree.\u201d MSA \u00a7VII(a)(2). In Illinois, the MSA Court is the circuit court of Cook County.\nThe MSA, however, carves out exceptions to the MSA courts\u2019 jurisdiction, which includes, among other things, that which is \u201cprovided in subsection[ ] *** XI(c).\u201d MSA \u00a7VII(a)(3). The interpretation of that subsection is at issue here and shall be referred to as the Arbitration Provision.\nWhile arbitration is a favored method of dispute resolution, \u201cparties to an agreement are bound to arbitrate only those issues they have agreed to arbitrate, as shown by the clear language of the agreement and their intentions expressed in that language.\u201d Salsitz v. Kreiss, 198 Ill. 2d at 13, 761 N.E.2d at 731.\nThe Arbitration Provision of the MSA states as follows:\n\u201c(c) Resolution of Disputes. 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.\u201d MSA \u00a7XI(c).\nWe conclude that the clear language of the Arbitration Provision shows that the parties intended to arbitrate the present dispute.\nIllinois argues, however, that the Arbitration Provision is a narrow exception to the MSA Court\u2019s broad jurisdiction. Although not binding upon this court, we note that courts in other jurisdictions have almost unanimously concluded that the present dispute is arbitrable. We agree with those courts that have found the instant dispute arbitrable under the MSA\u2019s plain language.\nOne court, acknowledging that the arbitration clause does not encompass the entire MSA, nonetheless construed the clause as being \u201cbroad\u201d due to its plain language that does encompass any dispute \u201carising out of\u2019 or \u201crelating to\u201d any calculations or determinations of the Independent Auditor. See State v. Philip Morris, Inc., 30 A.D.3d at 31, 813 N.Y.S.2d at 75. Another court viewed the arbitration clause as \u201cnarrow\u201d because it was a \u201csubstantively limited exception to the Court\u2019s otherwise exclusive power to hear and decide disputes as to [that State] arising under the MSA.\u201d State v. Philip Morris, Inc., No. X02CV960148414S (Conn. Super. August 3, 2005), slip op. at 33, aff\u2019d, State v. Philip Morris, Inc., 279 Conn. 785, 905 A.2d 42 (2006). Nonetheless, the court determined that the dispute was clearly covered under the operative language of the narrow arbitration clause. State v. Philip Morris, Inc., No. X02CV960148414S (Conn. Super. August 3, 2005), slip op. at 33, aff\u2019d, State v. Philip Morris, Inc., 279 Conn. 785, 798, 905 A.2d 42, 49 (2006) (explaining that \u201c[although the agreement thus limits the subject matter of the disputes that are arbitrable, it employs broad language in defining the scope of the disputes that fall within that subject matter\u201d). We conclude that, regardless of whether the Arbitration Provision is characterized as \u201cbroad\u201d or \u201cnarrow,\u201d the plain and unambiguous language of the Arbitration Provision requires arbitration of the present dispute.\nIllinois correctly notes that the Independent Auditor did not make a determination as to whether there was diligent enforcement of the Qualifying Statutes. Thus, Illinois contends, since there was no determination made by the Independent Auditor, there is nothing to arbitrate. We disagree. The present dispute does involve a determination made by the Independent Auditor. The MSA clearly provides that, in calculating the annual payments due, the Independent Auditor must make an initial determination regarding the applicability of any adjustments, including the NPM Adjustment. It is that determination that is in dispute in the instant case. The Independent Auditor\u2019s decision not to apply the NPM Adjustment was based upon its presumption \u2014 made at the Settling States\u2019 urging \u2014 that they were diligently enforcing their Qualifying Statutes. The determination that the NPM Adjustment should not apply clearly falls within the language of the Arbitration Provision.\nEven if the present dispute does not involve a direct challenge to a determination made by the Independent Auditor, the dispute would still be subject to mandatory arbitration because the MSA provides that all disputes \u201carising out of or relating to\u201d such determinations must be arbitrated. MSA \u00a7XI(c). We agree with the following succinct and clear analysis:\n\u201cThe Independent Auditor\u2019s decision not to apply the NPM Adjustment, and the dispute over whether that adjustment should have been applied, clearly \u2018arises out of that decision and is certainly \u2018related to it,\u2019 thus making it a proper subject for arbitration pursuant to the plain terms of the MSA.\u201d State v. Philip Morris, Inc., 30 A.D.3d at 32, 813 N.Y.S.2d at 76.\nAdditionally, the Arbitration Provision further shows that the parties intended that the present dispute be arbitrable. The parenthetical phrase in the Arbitration Provision provides clear examples of disputes subject to arbitration as \u201cincluding, without limitation, any dispute concerning the operation or application of any of the adjustments, *** described in subsection IX(j).\u201d (Emphasis added.) MSA \u00a7XI(c). Subsection IX(j) includes the NPM Adjustment. Thus, by the plain language of the MSA, the \u201capplication of any of the adjustments\u201d constitutes a dispute that arises out of or relates to the Independent Auditor\u2019s determinations or calculations and is, therefore, subject to arbitration. We conclude that the circuit court correctly interpreted the MSA and the Arbitration Provision.\nMoreover, we agree with those courts before us that have pointed out the \u201ccompelling logic to having these disputes handled by a single arbitration panel of three federal judges, rather than numerous state and territorial courts.\u201d See, e.g., State v. Philip Morris, Inc., 30 A.D.3d at 32, 813 N.Y.S.2d at 76. As the New York court further explained:\n\u201cSince the granting of an exemption by one settling state will automatically lead to the reallocation of its allocated portion of the NPM Adjustment to all other non-exempt settling states, each governmental signatory has its own self-interest at stake in the outcome of this issue, which is necessarily in conflict with every other state. Such a result defeats the whole purpose of having a Master Settlement Agreement. The mechanism of submitting disputes involving the decisions of the Independent Auditor to a neutral panel of competent arbitrators, who are guided by one clearly articulated set of rules that apply universally in a process where all parties can fully and effectively participate, obviates this problem and ensures fairness for all parties to the MSA. To hold otherwise is contrary to both the spirit and the plain language of the Master Settlement Agreement.\u201d State v. Philip Morris, Inc., 30 A.D.3d at 32-33, 813 N.Y.S.2d at 76.\nWhile not essential to our disposition of this case, we agree with the PM that the structure of the MSA\u2019s payment provisions compels arbitration. As the PM note, the MSA imposes a single, unitary payment obligation on each PM based on its nationwide sales. We also agree with the statement made by one court that the MSA\u2019s \u201cbroad referral to an arbitration panel of \u2018[a]ny dispute, controversy or claim arising out of the independent auditor\u2019s calculations or determinations reflects the necessity of creating a uniform, nationwide set of rules by which the independent auditor is to calculate the annual payments.\u201d State v. Philip Morris, Inc., 279 Conn. at 800, 905 A.2d at 50. This is why the MSA carves out an exception to the MSA courts\u2019 jurisdiction for payment-related disputes in the Arbitration Provision (MSA \u00a7XI(c)).\nIn view of our decision that the plain and unambiguous language of the MSA\u2019s arbitration provision requires arbitration of the parties\u2019 dispute concerning the NPM Adjustment, including the State\u2019s diligent enforcement defense, we need not address the Illinois public policy concern that favors arbitration.\nFor the reasons stated above, the August 8, 2006, order of the circuit court that granted the OPMs\u2019 motion to compel arbitration and stayed the case pending the outcome of the arbitration is affirmed. This cause is remanded for further proceeedings consistent with this opinion.\nAffirmed.\nO\u2019BRIEN, RJ., and O\u2019MARA FROSSARD, J, concur.\nThe tobacco companies and four states, Florida, Minnesota, Mississippi, and Texas, entered into separate individual settlement agreements.\nAt that time, the Firm still had not determined whether the MSA had been a significant factor in the PMs\u2019 2003 aggregate market share loss. In the instant case, by the time the Independent Auditor issued its Final Calculation for 2006 on March 29, 2006, the Firm had determined that the MSA was a significant factor in the PM\u2019 2003 market share loss. The parties have raised no issue in this appeal regarding that determination by the Firm.\nUnder the MSA, if any information necessary to calculate the annual payments is missing, the Independent Auditor must calculate the annual payments by employing an assumption or best estimate for the missing information. MSA \u00a7XI(d)(5).\nIt is undisputed that, in 1999, Illinois enacted a Qualifying Statute. See 30 ILCS 168/1 et seq. (West 2000).", "type": "majority", "author": "JUSTICE GALLAGHER" } ], "attorneys": [ "Lisa Madigan, Attorney General, of Chicago (Gary Feinerman, Solicitor General, and Michael A. Scodro, Deputy Solicitor General, of counsel), for the People.", "Kirkland & Ellis LLF\u00a1 of Chicago (Stephen R. Patton, PC., and Douglas G. Smith, of counsel), for appellees Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Lorillard Tobacco Company.", "Winston & Strawn LLI) of Chicago (Thomas J. Frederick, Kevin J. Narko, and Luke A. Palese, of counsel), and DLA Piper, of New York, New York (Alexander Shaknes, James Mathias, and Brett Ingerman, of counsel), for appellee Phillip Morris USA, Inc.", "Greenberg Traurig, LLR of Chicago (Ruth A. Bahe-Jachna, of counsel), and Weil, Gotshal & Manges LLR of New York, New York (Penny E Reid and Idit Froim, of counsel), for appellee Lorillard Tobacco Company.", "Howrey LLR of Chicago (Joseph J. Siprut, of counsel), and Howrey LLR of Washington, D.C. (Robert J. Brookhiser and Elizabeth B. McCallum, of counsel), for other appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LORILLARD TOBACCO COMPANY et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201406\u20142326\nOpinion filed March 30, 2007.\nLisa Madigan, Attorney General, of Chicago (Gary Feinerman, Solicitor General, and Michael A. Scodro, Deputy Solicitor General, of counsel), for the People.\nKirkland & Ellis LLF\u00a1 of Chicago (Stephen R. Patton, PC., and Douglas G. Smith, of counsel), for appellees Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Lorillard Tobacco Company.\nWinston & Strawn LLI) of Chicago (Thomas J. Frederick, Kevin J. Narko, and Luke A. Palese, of counsel), and DLA Piper, of New York, New York (Alexander Shaknes, James Mathias, and Brett Ingerman, of counsel), for appellee Phillip Morris USA, Inc.\nGreenberg Traurig, LLR of Chicago (Ruth A. Bahe-Jachna, of counsel), and Weil, Gotshal & Manges LLR of New York, New York (Penny E Reid and Idit Froim, of counsel), for appellee Lorillard Tobacco Company.\nHowrey LLR of Chicago (Joseph J. Siprut, of counsel), and Howrey LLR of Washington, D.C. (Robert J. Brookhiser and Elizabeth B. McCallum, of counsel), for other appellees." }, "file_name": "0190-01", "first_page_order": 206, "last_page_order": 215 }