At its December 12 meeting, the Board authorized the filing of litigation against manufacturers, distributors, and other potential parties in connection with the opioid epidemic. The Board further directed the County Attorney to shortlist and rank up to four outside law firm teams from which the Board would choose the County's outside counsel.
Before the December 12 meeting, the County Attorney and Senior Assistant County Attorney Angela Benjamin had met with nine highly qualified teams of law firms seeking to represent the County. One of those teams subsequently withdrew. After receiving the Board's direction on December 12, the County Attorney and Ms. Benjamin met in the sunshine with three additional highly qualified teams.
Having completed all due diligence deemed necessary, the County Attorney hereby presents to the Board the following unranked shortlist of legal teams (presented in alphabetical order based on the name of the lead proposing firm):
- Kopelowitz Ostrow Ferguson Weiselberg Gilbert; Morgan & Morgan; and Haliczer Pettis & Schwamm.
- Lieff Cabraser Heimann & Bernstein; and Robbins Geller Rudman & Dowd LLP.
- Motley Rice LLC; Gelber Schachter & Greenberg, P.A.; and Colson Hicks Eidson.
- Simmons Hanly Conroy; Crueger Dickinson; and von Briesen & Roper, S.C.
Because of the stated importance of participation by local firms and by a diverse group of attorneys, and due to the fluid nature of each legal team's potential composition, the County Attorney is delaying ranking the four shortlisted teams until no later than January 19 to provide the shortlisted teams with the opportunity to enhance the diversity and local presence of their proposed teams. The composition of some or all of the shortlisted teams may, therefore, change before January 19.
The ranking will be submitted to the Board (and distributed as additional material) on or before January 19. Please remember that a two-way cone of silence remains in effect until the ranking is submitted. All of the legal teams with which we have met will be reminded of the cone of silence. Additionally, each of the shortlisted teams has confirmed that representatives from the team are available to make a short presentation to the Board at the Board's January 23 meeting.
The Board had previously directed that this matter be brought for the Board's consideration on January 9. However, in a December 14 memorandum, the County Attorney advised the Board that the federal court presiding over the multidistrict litigation ("MDL") had scheduled an in-person conference for January 9 on the topic of MDL leadership. Although the January 9 conference proceeded for other reasons, on January 4 the federal court approved the plaintiffs' MDL leadership slate. Each of the shortlisted teams (and others that were not shortlisted) is currently represented among the MDL's leadership.
Any contract with outside counsel will include the following mandatory terms: (1) a contingency fee arrangement in which the team would receive a maximum of 25% of the net recovery received by the County; (2) the team would advance all 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 would be equitably divided among any and all plaintiffs represented by the team (i.e., among all governmental entities represented by the same team or its constituent members in opioid epidemic litigation) (in addition, we would seek to negotiate a cap on these costs and expenses); and (4) if the team (or any member of the team) contracts to represent a local governmental entity in opioid epidemic litigation at a lower contingency fee or a 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).