The move is also designed to provide someassurances to defendants about the total scope of lawsuits that areout there. (Photo: Shutterstock.com)

Plaintiffs lawyers leadinglawsuits brought over the opioid crisis have filed a motion tocertify an expansive class of various governments in preparationfor a nationwide settlement.

In a motion for classcertification filedFriday, lawyers sought to have a federal judge who is overseeingmore than 1,800 lawsuits by cities, counties and other governmentsover the opioid crisis, approve an unprecedented “negotiationclass” for the “sole purpose of negotiating and potentiallysettling with defendants conducting nationwide opioidsmanufacturing, sales, or distribution.”

Read more: Opioid manufacturers: A publicnuisance?

They suggested a June 24 hearingfor preliminary approval of the class, with final approval sometimein September.

The motion excludes stateattorneys general, some of whom have brought lawsuits in statecourts across the country, and sets up a procedure in which 24,500cities, counties and other smaller governments could resolve theirclaims. It comes two days after Alabama Attorney General SteveMarshall voluntarilydismissed the state's case in federal court and as Oklahoma AttorneyGeneral Mike Hunter is in the midst of the firstopioid trial in the nation against manufacturer Johnson &Johnson.

The motion also comes as U.S.District Judge Dan Polster of the Northern District of Ohio haspushed for global settlement talks while setting the first trial inthe MDL for Oct. 21.

“This precise vehicle has neverbeen used before, but we are very confident that this is a validuse of the procedure and that the court will, we are hopeful,welcome this as an opportunity to move the resolution of thesecases forward,” said co-lead plaintiffs attorney Paul Hanly ofSimmons Hanly Conroy in New York.

The move is also designed toprovide some assurances to defendants—manufacturers anddistributors of the prescription painkillers, as well aspharmacies—about the total scope of lawsuits that are outthere.

“Negotiations have been ongoingfor a number of months,” Hanly said, “but there are no offers onthe table, and we hope that this vehicle will move us in thedirection where defendants will begin to put offers on thetable.”

But Adam Zimmerman, a professorat Loyola Law School in Los Angeles, said such a detailed proposalcould indicate that defendants are closer to a settlement. Two ofthem, Insys Therapeutics and Purdue Pharma, have already reachedsettlements with the state of Oklahoma and the U.S. Department ofJustice.

“Maybe this is a signal thatsome of the defendants, maybe Purdue, might be willing to enternegotiations under conditions like this,” he said.

An unprecedented idea

Joe Rice, another co-leadplaintiffs' attorney and partner at Motley Rice, in ablog post, called the deal “innovative” and a “powerfulvoice” for the multitude of governments, most of which have notfiled lawsuits over opioids.

“Imagine you have a legion ofsoldiers preparing to go up against a very powerful adversary on abattlefield,” Hanly said. “You don't want the individual soldiersin the legion to be wandering in different directions and taking adifferent strategy with respect to the adversary. You want them allto be unified with the same goal in mind, with the same set ofrules, so that they are collectively a power—and that's what wethink this accomplishes.”

Lawyers reiterated that theclass certification would not prevent governments from litigatingor settling their cases on their own. The proposal also excludeshundreds of lawsuits in the MDL, including those by unions andNative American tribes.

The motion is more unusual thanmost filed for certification of class actions, because it comesprior to any settlement yet would not be used to pursue litigationbeyond the limited confines that Polster has allowed. In mostcases, class actions get certified under those two circumstances,but lawyers insisted in court papers that the “negotiation class”proposed in the opioid litigation fits within the confines of theFederal Rule 23 of Civil Procedure, which governs classactions.

In a brief supporting theirmotion, they included 40class representatives, including counties in California, Florida,Georgia, New Jersey and New York, and major cities such as Atlanta,Chicago, Denver, Los Angeles and San Francisco.

That list is impressive,Zimmerman said.

“The named plaintiffs alone inthis proposed negotiation class are 40 of the largest cities orhard-hit cities by the opioid crisis itself,” he said.

Also, he noted, class actionexpert Samuel Issacharoff, of New York University School of Law,signed the motion.

The idea of a “negotiationclass” also was modeled on a draft 2019 law review article out thismonth by Duke University School of Law professor Francis McGovern,who is one of three special masters in the case, and WilliamRubenstein, a professor at Harvard Law School and expert on classactions who McGovern hired as a consultant in the settlementdiscussions.

But Zimmerman questioned whetherthere would be enough commonality for Polster to certify a“negotiation class” under Rule 23. Not only do cities and countieshave differing damages from the opioid crisis, they've broughtvarious liability claims against a host of defendants.

“It's highly ingenuitiveespecially for a sprawling case,” he said. “The question will be:Will the cities buy it, and will the court buy it?”

Court documents outline a planin which 5,000 counties and 19,500 “incorporated places,” such astowns and villages, could decide whether to be part of the“negotiation class.” They would have the choice to opt out of theclass, but being part of it would give them voting powers. Underthe proposal, a settlement could go forward if 75% of the classmember governments voted for the deal. But the supermajorityincludes at least six different “pools” of class members, brokenout by population or whether the governments had filed lawsuits ornot.

Lawyers also provided acalculator at www.opioidnegotiationclass.comto determine how much eachgovernment could get under a potential settlement. That formula isbased on each government's volume of opioid pills, overdose deathsand “opioid use disorder cases,” described as individuals who aredependent or addicted to opioids.

Under the proposal, Hanly said,cities and counties would have a better chance of negotiating withstates over their split of a potential settlement fund—a stickingpoint that prompted many smaller governments to pursue opioidcrisis-related lawsuits separate from their states. If such a splitis needed, the proposal named three representatives to be part of anegotiation team: former San Francisco City Attorney Louise Renne,City of New York Corporation Counsel Zachary Carter, and the Cityof Chicago's corporation counsel Mark Flessner.

“This entire process has to takeinto account, and it's one of the big question marks behind thisentire proposal, the elephant in the room, which are the stateattorneys general,” Zimmerman said. “Because the state attorneysgeneral could negotiate a settlement and, in negotiating thatsettlement, depending on the state law and home rules of thatstate, could agree to a settlement that leaves out thecounties.”

The proposal also sets aside 10%of any nationwide settlement fund for individual attorneys seekingcompensation, while class counsel could apply for fees and coststhrough a potential common benefit fund.

And although no settlementdollars are available yet, Hanly described why many governmentsmight want to participate.

“It is true that at the timewithin which an entity has to opt out there will not be a dollaramount, but what they're being asked to either stay in or opt outof is simply a structure that would operate if and when there aredollars to be distributed,” he said. “A small county in Kansas isnot going to be taken seriously in negotiations with one of thesehuge companies, but that same small county in Kansas, if it remainsa member of this class, will have all the benefits that the wholeMDL process brings to individual plaintiffs in thiscase.”

Read more: 

• Insys files for bankruptcy amid opioidliabilities
• 5 more states sue Purdue Pharma over opioidmarketing
• Responding to criticism, FDA takes action on opioidoversight