Local Government Plaintiffs and the Opioid Multi-District Litigation

Abstract

In late 2017, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation of a few hundred cases pending around the country against opioid manufacturers and distributors into a Multi-District Litigation (MDL) in the Northern District of Ohio. Today, the Opioid MDL consists of over 1,500 opioid-related cases brought primarily by states, cities, counties, and other local entities, and that number is growing weekly. Strikingly, these lawsuits are not primarily seeking damages for injuries to individuals. Rather, they are seeking compensation for the cost of public services needed to address the consequences of addicted communities, ranging from emergency response capabilities to rehabilitation services. The Opioid MDL is the first mass litigation to involve this number of local government plaintiffs, and although this Note predicts that the Opioid MDL, like most MDLs, will resolve in an aggregate settlement, the presence of local governments poses a unique problem for achieving that outcome. Mass litigation can only result in settlement if the settlement provides some guarantees to the defendants of “global peace” — meaning that the settlement forecloses all, or close to all, current and future litigation against the defendants — and any settlement arising out of the Opioid MDL will have to contend with resolving the claims of close to 40,000 city, township, and county governments. Even though only a fraction of these local governments are currently part of the Opioid MDL, their presence leaves open the threat that absent localities will sue later, undermining the likelihood or value of any settlement. This Note looks specifically at how a settlement might be structured to include local governments and grant the defendants something close to finality by looking to prior MDL precedent and employing the settlement tactics used in those cases to the Opioid MDL. In doing so, this Note proposes that even though the players in this MDL are unique, the solutions are not. Because any settlement negotiations are strictly confidential, this Note is the first to dive into the specifics of how a settlement might be structured.

Keywords: Opioid, Opioid MDL, MDL, Multidistrict Litigation, Complex Litigation, Opioid Multidistrict Litigation, class actions, contractual aggregation, settlement, local governments, parens patriae