Abuse of prescription opioids has exacted an immense and undeniable human toll both nationally and within Broward County. This crisis has caused tens of thousands of deaths and has ruined countless lives. The impacts have been even more staggering when factoring in addictions to less expensive and more easily obtained drugs, such as heroin and other clandestine opioid analogues (e.g., fentanyl), that have resulted from the inability of individuals who had become addicted to prescription opioids to obtain sufficient quantities of prescription opioids. Broward County's Medical Examiner has estimated that, in 2017, in Broward County alone, the number of overdose deaths involving opioids might exceed 1,000.
This crisis has also created significant financial impacts. Like many local and regional governments, Broward County has incurred additional costs as an employer, as an insurer, and as a service provider. These costs have included, but are not limited to, increased emergency and health care costs, increased law enforcement expenses, and increased substance abuse treatment and diversion plan expenses.
In an effort to address the human toll and financial impacts, local governments throughout the United States have begun retaining counsel and filing lawsuits against manufacturers and distributors of prescription opioids. The cases filed to date allege, among other things, that manufacturers committed unfair or deceptive trade practices, including by misrepresenting the medical science, regarding the use of prescription opioids to treat chronic pain. The defendant manufacturers are alleged to have marketed opioids under false or misleading statements that opioid pain medications are not addictive and are safe for long-term use, despite knowledge that opioids are addictive and subject to abuse, particularly when used long-term for chronic pain. The distributors are alleged to have acted in concert with manufacturers, and in direct contravention of federal law, including by failing to report suspicious sales both in terms of quantity and frequency.
This agenda item asks the Board to consider two matters. First, a decision must be made as to whether the County wishes to file suit. Second, a decision must be made regarding the process for retention of outside counsel (while this Office would actively coordinate with outside counsel throughout any litigation, the nature and magnitude of this potential litigation indicate that outside counsel should be retained to serve as lead counsel).
Should Suit be Filed? This is purely a policy decision. We have extensively analyzed the proposed litigation and believe (i) it may result in significant financial recoveries and other beneficial relief, and (ii) if structured properly, it would involve limited financial downside. If the County chooses to pursue the litigation, we recommend that the County retain outside counsel on terms including the following: (1) a contingency fee arrangement in which the selected team would receive a maximum of 25% of the net recovery received by the County; (2) the team would advance all required costs and expenses of the litigation and agree that the County is only obligated to reimburse such costs or expenses out of any financial recovery; (3) litigation costs and expenses (we would also seek to negotiate a cap on these) would be equitably divided among all plaintiffs the team represents (i.e., among all governmental entities represented by the same team or its constituent members in opioid epidemic litigation); and (4) if the team (or any member of the team) contracts to represent a governmental entity in opioid epidemic litigation at a lower contingency fee, lower cap on costs (if applicable), or if such contract more narrowly defines the recoveries to which the contingency fee would apply, the County's financial obligation would automatically be reduced to match that term (i.e., a "most favored nations" clause).
Retention of Outside Counsel. We have met with nine extremely qualified teams of law firms seeking to represent the County in this potential litigation. One of those teams has since withdrawn, and additional legal teams have more recently expressed interest in discussing this potential representation. Following those meetings, we asked each team to complete initial and supplemental questionnaires designed to obtain additional information needed to evaluate the merits of the potential litigation and outside counsel.
If the Board decides to pursue this litigation, we seek direction regarding one of the below alternatives, or such other direction as determined by the Board:
1. Direct the County Attorney to select and enter into an agreement (to include the above-referenced terms) with a litigation team that would file claims deemed appropriate by the County Attorney (in consultation with retained counsel). In selecting the team, the County Attorney would consider (the absence of any factor(s) would not be disqualifying), among other factors, a) a team's experience in multidistrict litigation (a process in which all cases filed in, or removed to, federal court will be consolidated before a single court for pretrial proceedings); b) a team's previous or current leadership in multidistrict litigation (typically, multidistrict litigation includes designating multiple law firms to a committee that plays a lead role in coordinating among the various plaintiffs; past or current leadership experience does not guarantee a leadership role in this potential litigation); 3) the extent of diversity among the lawyers who would be substantially working on the matter; 4) the inclusion of local, qualified law firms on the team; and 5) a team's willingness to explore legally available options for protecting the County from possible "fee or cost shifting" if the litigation (or certain claims) were unsuccessful.
2. Direct the County Attorney to create a short list of three or four litigation teams which, if desired by the Board, could briefly present their qualifications to the Board at the January 9, 2018, meeting, thereby permitting the Board to select a litigation team.
3. Direct the County Attorney to select the litigation team and to negotiate the retention agreement, which would be brought back for the Board’s consideration in January.
Additional Information. Our neighboring counties are currently considering these same issues, but their decisions will likely not be made until February or later. There are certain advantages to coordinating with them, if possible. We will discuss this issue with you during individual briefings.
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