Plaintiffsattorneys brought the motion June 14 for certification of the“negotiation” class, which excludes state attorneys general, someof whom have brought lawsuits in state courts across the country.(Image: Shutterstock)

A federal judge appeared likely to grant certification of aproposed class of thousands of cities and counties as a potentialmodel to settle cases brought over the opioid crisis.

At a hearing Tuesday, lawyers for some of the pharmaceuticaldistributors and the states were among those who raised objectionsabout a proposal from lead plaintiffs counsel in the multidistrictlitigation to create a “negotiation” class that wouldencompass potentially 33,000 cities and counties. U.S. DistrictJudge Dan Polster of the Northern District of Ohio, who hasencouraged settlement from the start of the opioid litigation,pushed back against many of the objections.

Related: Purdue Pharma settles Oklahoma opioid suit for $270million

“There needs to be some vehicle to provide resolution of thesecases,” he said at the hearing, which took place in Cleveland.“Everyone knows that trying probably 2,500 cases now, between thefederal ones and the ones in state court, first, would sink thestate and federal judiciaries. But, also, the amount of privateresources would be staggering, and no one would want to do that.So, there has to be a vehicle to resolve them. It doesn’t have tobe one vehicle alone.”

Numerous times, Polster asked the objecting lawyers if they hadany other ideas.

“No one has a monopoly on good ideas. The more ideas floated,the better,” he said.

He said he would take the matter under submission and rule “inthe near future.”

Plaintiffs attorneys brought the motion June 14 forcertification of the “negotiation” class, which excludes stateattorneys general, some of whom have brought lawsuits in statecourts across the country, as well as unions and Native Americantribes.

The class certification motion is unusual because it comes priorto any settlement but, also, is not for pursuing litigation. Inmost cases, judges certify class actions under those twocircumstances, but lead plaintiffs lawyers in the opioidmultidistrict litigation insisted that the proposal fits within theconfines of the Federal Rule 23 of Civil Procedure, which governsclass actions.

The idea of a “negotiation” class originated in a draft 2019 lawreview article by Duke University School of Law professor FrancisMcGovern, who is one of three special masters in the case, andWilliam Rubenstein, a professor at Harvard Law School and expert onclass actions whom McGovern hired as a consultant in the settlementdiscussions.

After objections poured in from some distributors andpharmacies, and attorneys general in 30 states, Polster gave plaintiffs attorneys more time to garnersupport.

They filed an amended motion July 9.

But in renewed objections, a group of 39 stateattorneys general, in an amicus brief, raised potentialissues involving state sovereignty, allocation of funds, lengthyappeals and excessive attorney fees.

Distributors and pharmacies, both defendants in the cases, saidthe proposal was “not legally supportable.” They also pointed to“fundamental conflicts of interest” involving the proposed classrepresentatives, half of whom have lawyers who represent states inseparate opioid lawsuits.

On Tuesday, Polster said he banned all lawyers who representedboth a state and a city or county from arguing or filing motionsrelating to the “negotiation” class proposal. “Those lawyers have aconflict at the moment because all, or most, of the state AGs areopposing this motion,” he said in court.

He also said that, if he granted the certification motion, hewould appoint a neutral to represent cities and counties that hadnot yet filed lawsuits. He also would order that the case involveonly federal claims and limit the parties to 13 “nationwidedefendant families.”

Before arguments Tuesday, he asked both sides to address thestrongest arguments of their opponents.

“Frankly, I don’t think any strong arguments have been made,”said plaintiffs counsel Chris Seeger of Seeger Weiss. Hesaid many of the objections “border on frivolous.”

Class action expert Samuel Issacharoff of the New YorkUniversity School of Law, who worked with lead plaintiffs attorneyson the proposal, called defendants’ concerns about absent classmembers “crocodile tears.” He also brushed off the idea that avoting procedure outlined in the proposal would be confusing forrepresentatives of smaller cities and counties, which “got intooffice through the elective process.”

Under the plan, cities and counties would have the choice to optout of the class, but being part of it would give them votingpowers. A settlement could go forward if 75 percent of theclass member governments voted for the deal.

Yet, Issacharoff acknowledged that the objections ofthe states were a “source of concern.” Under the proposal, threerepresentatives would negotiate with attorneys general overpossible allocations of funds, should they reach their ownsettlements.

Both he and Seeger emphasized that no one had to participate inthe class.

“The answer to that is quite simple: if they don’t like this,ignore this,” Issacharoff said. “You want to go to trial? Go totrial. Good luck, have at it.”

Polster made similar remarks to Sonya Winner, a partner atCovington & Burling, who argued on behalf of the defendants whowere objecting to the idea, which she called a “mirage” that wouldlead to a “considerable amount of confusion.”

He then asked whether she had a better idea.

“I can’t propose an alternative today,” Winner said. “That’s notwhat we’re here for.”

“I disagree,” he responded.

She continued to point out numerous problems with the proposal,including an allocation process that comes before lawyers havereached any settlement with actual dollars. Under the proposal,lawyers provided a calculator at www.opioidnegotiationclass.com todetermine how much each government could get under a potentialsettlement.

“That’s the best part of the settlement. Why is that bad?”Polster asked her.

“Because it’s not true,” she said, noting that the calculationswere for counties only and, according to the fine print, many smallcities would get nothing.

“This is as complicated a litigation as there’s ever been, andadding another layer of complication to a class action that is notsupportable, that does not follow the federal statutes, that doesnot even do what the plaintiffs claim it does, is wastingeveryone’s time and everyone’s energy,” she said.

Paul Singer, chief of the consumer protection division of theTexas attorney general’s office, who spoke on behalf of the states,also got pushback from the judge, who disagreed that the proposalwould violate state sovereignty or force states to allocatesettlement funds in a certain way.

Separately, defendants filed a motion Monday to grant more timefor the first federal bellwether trial over opioids, brought by twoOhio counties. That trial, scheduled for seven weeks starting Oct.21, is “not enough time for a fair presentation of the evidence,”they wrote, given there are 45 defendant companies and $8 billionat stake.

They noted that a separate trial, in a case brought by thestate of Oklahoma, which ended last month,lasted seven weeks but involved a singledefendant, manufacturer Johnson & Johnson.

Read more: 

• Lawyers in opioid suit seek nationwide classcertification
• New lawsuit unveils scope of Purdue’s‘extraordinary efforts’ to push opioids
• Opioid manufacturers: A publicnuisance?