Judge Approves “Innovative” Class to Give 34,000 American Communities Strong Negotiation Power in the Federal Opioid Litigation

Jayne Conroy

CLEVELAND – Federal Judge Dan Aaron Polster, of the Northern District of Ohio, certified yesterday an “innovative” negotiation class that includes more than 34,000 U.S. cities and counties seeking reimbursement for monies they have expended – and continue to expend – addressing the opioid crisis and appointed Simmons Hanly Conroy Shareholder Jayne Conroy as co-lead of the class.

The class creates a voting arrangement by which all the county and municipal entities in the United States can participate collectively, through their representatives, in any settlement discussions. Polster called it a “powerful, creative and helpful” option to move what’s been regarded as the largest and most complex litigation in U.S. history closer to resolution.

“[The negotiation class] would expedite relief to communities so they can better address this devastating national health crisis,” Polster wrote in the order.

Polster had previously appointed Conroy, interim co-lead of the class, pending its final certification, citing her “significant and impressive experience in leadership roles in mass tort MDLs.” The final certification order grants Conroy, along with co-lead Christopher Seeger and class counsel, sole authority to negotiate settlements with the 13 pharmaceutical manufacturers, distributors and pharmacies named in the federal opioid multidistrict litigation, In re: National Prescription Opiate Litigation.

Conroy and Seeger issued the following joint statement about the certification.

“If there is one point to take away from Judge Dan Polster’s approval of the Negotiation Class, it is that the American community has been given a level-playing field—and an official legal structure—to vote on proposals to resolve the national opioid litigation. And that’s unequivocally good news.

“Today’s decision clears the way for all towns, cities, and counties in our country to not only negotiate with the opioid industry but to use their joint bargaining power to secure the resources they need to fund addiction, recovery, and prevention efforts in their own neighborhoods.

“By ratifying the Class, the Court has recognized both the urgency facing our communities as well as the need to give defendants a unified entity to pursue resolution to the thousands of claims against them. We agree with the court’s characterization of the Negotiation Class as a ‘powerful, creative, and helpful’ tool to bring relief to communities that operates without inhibiting other ongoing litigation and settlements at the state, county, or local levels.”

Conroy brings a wealth of legal experience to her role leading this innovative class. She previously served on the Plaintiff Executive Committee in the DePuy Pinnacle federal litigation involving more than 9,000 patients injured by Johnson & Johnson’s metal-on-metal hip replacement device. As a member of the trial team, she secured three consecutive 9-figure bellwether trial verdicts, including a $1 billion result for six families.

Conroy also has a track record of holding opioid manufacturers responsible for their role in the opioid epidemic. In 2003, she and Shareholder Paul Hanly , who serves as co-lead of the Opioid MDL, represented more than 5,000 clients against Purdue Pharma, the manufacturer of OxyContin, and won a significant settlement in 2006.

Key Facts:

  • This is not a litigation class. Certification of the Negotiation Class will not be used to litigate or try any claim, in any court, against any of the defendants named in national opioid litigation. It does not affect the prosecution of existing actions filed against opioid manufacturers, opioid distributors, or pharmacies by Class members. And it will not stop any individual cases brought by cities and counties from proceeding or settling.
  • The Negotiation Class has important benefits for the Defendants as well. Now that the Negotiation Class is confirmed, Defendants will be able to predict, with certainty, that any settlement reached with the Class will be binding for a known percentage of cities and counties. Defendants will not need to renegotiate innumerable settlements or face new lawsuits from counties and cities that have not yet filed.
  • All Class members will have the right to opt-out of the proposed Negotiation Class after receiving a Court-approved Class Notice after the proposed class structure receives preliminary approval from the Court.
  • Under the proposed Negotiation Class, there will be a voting process that can approve a proposed settlement if more than 75% of voting class members approve the proposed settlement, based on 75% supermajorities of litigating and non-litigating counties and municipal bodies by number and population.
  • Each potential Class member may determine its allocation of any potential settlement at the County level by utilizing the Settlement Allocation Map and Calculator posted on the Negotiation Class Website – which will become available to the public when the notice period starts.
  • For more information on negotiation class process, allocation formula, supermajority voting mechanism and fees, visit the above website.

The case is In Re: National Prescription Opiate Litigation, MDL No. 2804, Case No. 17-md-02804 .