Leave Opioid Lawsuits to State Attorneys General

By: George Jepsen and Perry Zinn Rowthorn

A critical mass of 36 state attorneys general have responded to the opioid crisis with investigations and litigation targeting manufacturers and distributors. But hundreds of private lawyers have also filed a barrage of opioid-related lawsuits on behalf of local governments, making it much harder for the state-led effort to convince the industry to agree to a comprehensive settlement. To resolve this logjam, attorneys general should structure state-centric deals under which localities can benefit if they drop their lawsuits.

Local governments have filed more than 1,700 opioid lawsuits, most in the past 18 months. In many cases lawyers working under contingency-fee agreements have promised cash-strapped counties and towns unrealistic financial recoveries. Hundreds of these lawsuits have been consolidated before a federal judge, Dan Aaron Polster of the Northern District of Ohio, but many more are pending across the country.

Local officials deserve credit for confronting the opioid crisis, but their lawsuits threaten to disrupt the flow of much-needed prevention and treatment resources into their communities by delaying a global settlement in the state cases. The local lawsuits allege public-nuisance and consumer-protection claims typically asserted by attorneys general, but without the statutory enforcement authority that attorneys general possess.

Attorneys general are empowered by state legislatures to prevent and address unfair or deceptive business practices. This relieves them of many of the normal burdens of litigation. They need only prove that unfair or deceptive conduct occurred—not that it caused their states specific financial damage—for a court to award penalties and other relief. Those penalties can add up to billions of dollars when wrongdoing is proved to be severe or widespread, as alleged in some of the state-level opioid lawsuits. (None of the companies involved have admitted misconduct or liability.) State attorneys general have successfully deployed these tools time and again to address difficult national consumer problems.

Cities and counties don’t possess such regulatory enforcement authority and have a much steeper climb in opioid cases. They need to show that specific people or entities committed a specific act or omission that caused the localities—not their residents—specific damages. Even if they meet that challenge, they arguably have to show that the legal chain of causation wasn’t broken by prescribing doctors who could judge the risks themselves or drug dealers whose criminal activity may not be opioid companies’ legal responsibility.

In January a Connecticut judge dismissed all municipal lawsuits against opioid manufacturers in the state. Similar rulings will likely follow in other states. As the Connecticut judge said: “Yes, the cities are governments, and they are suing drug companies about opioid abuse. . . . The trouble is that these matters are ordinary civil damages cases and face the ordinary civil rules about who can sue for what.”

None of this means that attorneys general have an easy road in their cases. Many observers compare the opioid cases to the 1998 national tobacco settlement, in which cigarette makers have paid more than $126 billion to the states. There are complicating differences. Opioids have legitimate medical uses and were marketed primarily to doctors, while tobacco companies pitched consumers directly.

Yet settlements with drug companies could deliver significant money for treatment and prevention and agreements to reform opioid sales and marketing. One possibility would restrict opioid marketing to purposes that fit Centers for Disease Control and Prevention guidelines, such as acute cancer pain, immediate postoperative pain management, or end-of-life care.

We believe some—even most—opioid manufacturers and distributors want to explore a settlement as long as they can achieve close to complete global relief from civil litigation. But the local governments’ suits are procedurally much harder to settle than the states’ filings. The typical tools to settle multiple, similar lawsuits simultaneously don’t readily apply. A cottage industry of law professors has sprung up conjuring novel procedural vehicles never approved by courts to wrestle cities and counties into settlements. Don’t hold your breath.

What would work is comprehensive settlements in which all relief flows to attorneys general and state public-health systems, best equipped to spend it most effectively. Attorneys general can earmark some of that money to local governments for their opioids programs—if they withdraw their lawsuits. Private lawyers would lose control and perhaps some fees, but many of the financial promises they made weren’t realistic.

Despite deepening partisan divisions, attorneys general continue to work across party lines to address national problems. Their central role in consumer protection must be preserved. If not, we risk a new normal in which the efficacy of attorneys general is routinely impeded by cities and counties. The public will suffer.

Mr. Jepsen, a Democrat, was Connecticut’s attorney general, 2011-19. Mr. Rowthorn was the state’s deputy attorney general, 2013-19.