Judge in Sprawling Opioid Case Looks Ready to Approve Class

CLEVELAND (CN) – The federal judge overseeing thousands of lawsuits filed by local governments against opioid manufacturers and distributors appeared likely Tuesday to approve a nationwide class to negotiate a settlement for the companies’ role in the opioid crisis.

OxyContin pills arranged for a 2013 photo at a pharmacy in Montpelier, Vt. (AP Photo/Toby Talbot, File)

Attorneys flew in from around the country to argue before U.S. District Judge Dan Polster in Cleveland on the government plaintiffs’ motion to form a special negotiating class.

With lawsuits from more than 2,000 cities and counties funneling into his courtroom, Polster said the multi-district litigation would be based on a small number of federal claims from Summit County, Ohio, which includes nearby Akron.

A group of 39 cities and counties proposed the idea to give every governmental subdivision in the United States a vote on a potential settlement. Cities and counties could also opt out of the negotiating class if Polster approves it.

More than 75% of the voting class members would have to approve a settlement. This supermajority would have to be achieved in each of several categories, including the total number of cities and counties that have sued and their populations, with each government entity’s vote being weighted by population.

The proposal also includes a settlement allocation map and calculator that would allow political subdivisions to compute their share of a potential payment.

The share is based on three factors: overdose deaths, opioid-use disorder cases, and drug distribution.

Attorney Christopher Seeger of Seeger Weiss argued on the plaintiffs’ behalf in a hearing Tuesday, stating that the defendants’ objections to the qualifications for a class action “border on the frivolous.”

“You could substitute any two plaintiffs for [Cuyahoga and Summit counties] and you would be looking at the same case with the same evidence,” he said.

The negotiation class would be “a tool to assist in the global resolution of some, most or all claims,” Seeger added.

Samuel Issacharoff, a law professor at New York University, helped to create the proposed negotiation class.

“We have received almost no objections to this proposal from the class,” he said. “That is almost unheard of.”

One objection came from attorney Jim Ferraro, who represents seven Cleveland suburbs.

“This should be an opt-in class,” he argued. “A city could vote against the 75% but be bound by the settlement if it passes.”

Judge Polster told Ferraro than nearly 2,000 governments did not object to the idea, and the other 30,000 political entities would be notified within 60 days if he certifies the class.

On behalf of the drug manufacturers, attorney Sonya Winner of Covington & Burling called the idea of a negotiation class “a mirage.”

“The defendants need the comfort that a settlement would survive objections and appeals,” she said. “This doesn’t assure a valid, viable settlement.”

“This proposal would sow considerable confusion among the proposed class,” Winner added. “The plaintiffs are asking you to shut your eyes and make findings now based on expediency.”

She also disagreed with the argument about the hypothetical substitution of plaintiffs.

“You can’t substitute Phoenix, Arizona, or Cumberland County, Maine, because their situation has nothing to do with a shipment that comes to Summit County,” Winner said.

Paul Singer of the Texas Attorney General’s office spoke on behalf of 37 of his counterparts who expressed their opposition to the negotiation class.

“We review class action settlements on our citizens’ behalf,” he said. “This idea would infringe on state sovereignty.”

But Polster disagreed.

“A settlement would be a product of negotiations between the states and the cities and counties,” the judge said. “It would get money to where the harm is, even if the subdivision hasn’t filed a lawsuit.”

Polster said he would not like to see settlement money land in states’ general funds.

“In the tobacco legislation, $200 billion went into states’ general funds,” he said, “and 90% of that money did not go toward anything related to tobacco smoking or lung cancer.”

Jon Blanton of the Ohio Attorney General’s office countered the judge’s assertion.

“Attorneys general are best situated to work with legislators to get the help to where the harm really is,” he said.

Attorney Jenny Lee Anderson she represented Fargo, N.D., which qualifies as a non-litigating city because it filed suit after the cutoff date.

“We would like to explore the possibility of representing the non-litigating class members,” she said.

Polster said he would decide whether to certify the negotiation class in the “near future.”

“There needs to be some vehicle to provide resolution to these cases,” he said. “I would encourage all settlement discussions and all ideas. This is just one.”

In a joint statement after the hearing, the plaintiffs’ attorneys expressed confidence that the judge would approve the class.

“We are encouraged by Judge Polster’s response to our motion and remain hopeful for a positive outcome in the near future. Judge Polster was right when he said we need a novel solution to a novel problem. That’s exactly what we have proposed with the ‘negotiation class,’” they said.

Brian Grosh contributed to this story.

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