AG Brnovich Leads Bipartisan Coalition Fighting Creation of ‘Negotiation Class’ that Undermines Opioid Multidistrict Litigation

PHOENIX – Attorney General Mark Brnovich and 12 other attorneys general recently urged the federal appeals court in Cincinnati to reverse an Ohio federal judge’s order that undermines the ability of States to negotiate a comprehensive opioid settlement. The attorneys general allege that no grant of legislative or constitutional authority permitted the District Court to certify a “negotiation class” to resolve multidistrict litigation against entities who played a role in the opioid crisis. The attorneys general state that they are better suited to coordinate with other states and negotiate a comprehensive settlement that will provide for all citizens rather than just specific political subdivisions.

More than 2,000 political subdivisions across the country have filed individual lawsuits seeking damages for public injuries caused by the opioid crisis. In September 2019, District Judge Dan Polster certified a “negotiation class” lumping all of the individual entities together into one class and expanding the class to cover cities, counties, and towns across the country, allowing plaintiffs’ lawyers to negotiate a settlement that binds the states.

Traditionally, class members are given the option to opt out of the class after the settlement is reached. However, this newly coined “negotiation class” will require class members to opt out before a settlement is reached. And it would bind local governments that have no independent power to bring a case like this in the first place.

“Opioid manufacturers are trying to strike sweetheart deals with plaintiffs’ lawyers at the expense of the states and people,” said Attorney General Mark Brnovich. “I’m going to do everything I can to protect consumers, and not only does this negotiation class threaten Arizona’s sovereignty, it is not in the best interest of Arizona communities impacted by the opioid crisis.”

In their brief, the attorneys general argue the proposed class threatens harm to state interests, including state sovereignty. Under the Constitution, the States themselves, not the federal courts, determine what their political subdivisions are empowered to do. By permitting a national class of local governments to settle claims that they have no state-law authority to litigate, the District Court has created an alternative to state government; it has freed the subdivisions from state jurisdiction and thus invaded state sovereignty. Additionally, if the certified class succeeds in reaching a settlement, it will inflict more damage on states by lopsidedly diverting opioid-settlement funds to certain political subdivisions and away from the States.

Currently, the Arizona Attorney General’s Office has ongoing litigation against opioid manufacturers and is already seeking restitution for the public.

Attorneys general from the following states are part of this brief: Arizona, Alaska, Delaware, District of Columbia, Idaho, Indiana, Kansas, Louisiana, Michigan, Nebraska, New Hampshire, North Dakota, and South Dakota.

Copy of brief.