Ditch the opioid 'negotiating class' proposal, experts say. State attorneys general are better suited to reach a deal

cleveland county courthouse
Prosecutors in Oklahoma recently wrapped up a trial against Johnson & Johnson on opioid marketing claims. (Cleveland County, Oklahoma)

Cities and counties around the U.S. have sued opioid drugmakers and distributors over their alleged role in a nationwide crisis, and plaintiffs recently proposed a “negotiating class” to help the sides reach a settlement. But that idea isn't helping, two experts say.

Instead, it's an idea the parties shouldn't sink time into, former Connecticut Deputy Attorney General Perry Zinn Rowthorn told FiercePharma. Rowthorn, along with Connecticut's former Attorney General George Jepsen, this week wrote an op-ed in the Cleveland Plain Dealer picking apart the proposal.

The upshot of their argument: State attorneys general, which are running their own investigations and lawsuits, are better equipped to negotiate a settlement favorable to all the plaintiffs involved.

Why? The experts, who are now partners at Shipman & Goodwin's attorneys general practice, argue the proposal forces municipalities to decide upfront whether they want to take part in the process—before they know anything about a potential settlement.

The proposal would also apply to every city and county in the U.S.—24,500 jurisdictions in all, many of which haven't actually sued the opioid makers. Those that haven't might not be aware of their opt-in or opt-out rights. They might even ignore the class notices altogether.

So, while the proposal would require a 75% affirmative vote for a settlement, only those plaintiffs that choose to opt in would vote. That in turn means a small number of localities could play an outsized role in a major national issue. It's not the way governments around the country should set policy, the attorneys general argue.

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Instead of spending time on the "negotiating class" idea, the experts argue state attorneys general are more equipped to negotiate a settlement. If attorneys general reach a deal, cities and counties could join in.

The lawsuits are part of what Rowthorn called the "most complicated piece of litigation that really anyone has seen, frankly.” Thousands of cities and counties have sued opioid companies, while state attorneys general around the country are pressing their own probes and lawsuits.

Meanwhile, the defendants themselves don't like the proposal. In a court filing, the drugmakers and distributors involved brought up some of the same arguments. According to the defendants' lawyers, the idea doesn't comply with federal class action law, and any deal the sides reach would face years of scrutiny on appeal. In the end, an appeals court could send the parties back to "square one," they wrote.

Now, Rowthorn said there's no consensus about how the issue will proceed.

As the multidistrict litigation plays out in Cleveland, Oklahoma recently finished a trial against Johnson & Johnson after securing settlements with Teva Pharmaceutical and Purdue Pharma. The state argues J&J played a “kingpin” role in opioid distribution there that led to a crisis. J&J says the facts don’t match up with Oklahoma’s allegations.  

A judge is set to rule soon on the case in a decision that will reverberate around the country as it will represent the first ruling either for or against a drugmaker on the issue.