Opt-in?
Or opt-out?
That was the question on Cook County Commissioners’ minds when they met in a closed session on Tuesday, November 19, to discuss whether the county wanted to be part of the National Prescription Opiate Litigation.
On the advice of Cook County Attorney Molly Hicken, the meeting was not recorded. It was also closed to the public, following the exception in the Open Meeting Law for attorney-client privileged communication for discussion of pending litigation.
The purpose of the closed session was to determine whether Cook County wanted to take part in the negotiation class by the deadline of November 22, 2019. In a memo to the board, Hicken explained she had consulted with other county attorneys in the state, and analyzed the issue and had recommendations for the board to consider and discuss.
Hicken wrote that the county must weigh financial implications of joining the suit, considering the amount of damages the county can prove are directly the responsibly “of prescription opiate providers against the anticipated costs of litigation in federal court against producers and distributors.”
The court handling this case has certified two Racketeer Influenced and Corrupt Organizations Act (RICO) claims under Title 23(b)(3) and two Controlled Substances Act (CSA) issues under Rule23(c)(4).
The class suit is certified for plaintiff ’s to consider and potentially vote on any future settlement offers made to the class by one or more of the 13 defendants. The goal of the class action is to maximize bargaining power and to provide finality to opioids litigation for any settling defendant.
The 13 defendants are Purdue, Cephalon, Endo, Mallinckrodt, Actavis, Janssen, McKesson, Cardinal, AmerisourceBergen, CVS RX Services, Inc., Rite-Aid Corporation, Walgreens and Walmart.
At the heart of the first RICO, the claim is that five defendants “misled physicians and the public about the need for and addictiveness of prescription opioids. All to increase sales.”
Alleged in the second claim is that eight defendants “ignored their responsibility to report and halt suspicious opioid sales, all in an effort to artificially sustain and increase federally set limits (quotas) on opioid sales.”
According to the Centers for Disease Control and Prevention (CDC), from 1999 to 2017, more than 702,000 people died from drug overdoses.
More than 70,000 people died from drug overdoses in 2017, making it the leading cause of injury related death in the country. Of those, almost 68 percent of those deaths involved prescription opioids.
This negotiation class doesn’t involve any claims made by state governments against the defendant(s), and no class settlement will release or otherwise interfere with any state government’s rights to future litigations.
A federal judge, judge Dan Polster, who oversees all of the national opioids litigation, certified September 11, 2019, for the case to go forward.
Judge Polster works out of the Northern District of Ohio. He was selected by a judicial panel to oversee more than 2,000 pending lawsuits coming from counties, cities, hospitals, tribes, etc.
If there is a settlement offer, at least 75 percent or more of the participating cities or counties, will have to agree upon the proposal. If that happens, under the class action settlement approval outlined in Federal Rule of Civil Procedure 23(e), the Court will decide whether that offer was fair, reasonable, and adequate. All of the applications for fees and costs also require approval under Rule 23.
Last, the defendants have said if this bellwether trial moves forward, it must conclude with a “global” settlement for them, protecting them from further lawsuits in this matter.
As for Cook County, the commissioners voted to take no action, “which means we are “opting in” to the Negotiation Class,” said Hicken.
When asked how much money the county might receive from this case, Hicken responded, “No real way to provide these details, because there is no settlement proposal yet.
“The negotiation class was created for the purpose of resolving the cases (and potential cases) against thirteen different defendants and their affiliates, including Purdue, CVS, and Wal-Mart (to name a few more well-known companies). The class will close, at some point after the opt-out period ends, and then the defendants (or any single defendant) will have a chance to propose a settlement.
“If a proposed class settlement is reached, the proposal is submitted to the entire Negotiation Class membership for voting. Seventy five (75) percent agreement of voting class members is required to get the settlement proposal to the court for approval.
“The negotiation class remains an entity for five years to allow for resolving the cases. Only if a settlement is proposed, agreed-upon, and approved by the court during that period will there be pay-out to the class members.”
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