Litigation Lessons

AAC LITIGATION LESSONS An opioid litigation update

From the beginning, the counties of Arkansas have viewed the Arkansas opioid epidemic as a predominantly local problem in need of local solutions. You know how lives lost to overdose, and lives ruined by addiction, cause deep pain and trauma that spreads through families and communities. These are your communities and families that are suffering from the opioid epidemic. These are your spouses and siblings, parents and children, family and friends, who are suffering from opioid addiction. Nobody wants to solve this epidemic more desperately than you.

We strongly believe that because the opioid epidemic is a community problem, it must have a community solution. This has been our theme since we filed the united Arkansas litigation on behalf of Arkansas counties, cities, and the state, on the ides of March 2018.

The counties’ united lawsuit remains on file in Arkansas state court — all 75 counties are plaintiffs along with the 16 highest-population cities and the state through a prosecuting attorney. Your case has survived an onslaught of resistance from the opioid manufacturers and distributors, defense lawyer-driven distraction and delay tactics, and a direct attack before the Arkansas Supreme Court by the Arkansas Attorney General.

Your case still stands alone as the only case like it. County, city, and state governments have not united like this in any other case filed in the United States.

Because it has become clear to most governments and courts in this litigation that a solution to the opioid addiction epidemic demands a local response, the local governments of Arkansas are in the right position — united — to do the hard work of abating the epidemic in our communities.

The unity of Arkansas governments has been beneficial in national settlement negotiations, which have been underway with some defendants for months. Because Arkansas counties and cities can speak with one voice, we have a powerful voice in national negotiations.

If there is a settlement soon, as many are predicting, settlement funds may begin to flow to government plaintiffs as soon as the Summer of 2021. That may sound like a long time from now, but settlement funds flowing to governments beginning in 2021 would be remarkably swift for this type of litigation. In March 2018, we estimated that this litigation would likely take 5-7 years before any recovery is realized. March 2021 will be three years since you filed the united Arkansas litigation.

Much work remains to be done before settlement funds can flow into Arkansas, not just in national settlement negotiations among lawyers and experts and judges, but here at home. We have worked for most of this year to negotiate a memorandum of understanding, commonly referred to as an MOU, among the county, city, and state governments of Arkansas, to control what happens with settlement funds designated for Arkansas from any settling defendant in opioid litigation.

An MOU among all the governments of Arkansas — 75 counties, over 500 cities and towns, and the state — is essential. We must act together to control our own destiny in this litigation. An MOU among the counties, cities, and state governments should include a commitment to use funds for evidence-based abatement strategies that have been proven effective.

An Arkansas MOU could also ensure that the government plaintiffs of Arkansas enjoy a higher recovery than the governments might receive without an MOU. The governments of Arkansas need to work together and strike an agreement now, before any national settlements are finalized. Simply put, without an MOU, Arkansas could leave millions of dollars in potential settlement funds on the table.

We also must move quickly because after an MOU is finalized, our work is not done. Steps must be taken to ensure that any opioid foundation or commission created to manage and disperse settlement funds is ready to use funds as soon as they are received — so we can begin fighting this epidemic as soon as possible. We need to finalize the MOU now so that we can take steps to create any abatement entity, constitute any governing board or commission, and allow that entity to begin its important work. This work can and should begin now, before settlement funds reach Arkansas, so bureaucratic delays do not impede efforts that can and will save lives.

The more of this work that we are able to complete before any settlement funds flow to Arkansas, the more lives, families, and communities, we will be able to save in Arkansas. It is time to get the Arkansas MOU done, and get to work on abatement. We have been working on your behalves to do exactly this.

We have all known since before we filed the first lawsuit on behalf of Arkansas governments against the opioid industry, about the fact that the counties, cities, and state must unite to fight the Arkansas opioid epidemic together. Hopefully very soon, we will have the honor of announcing that the state of Arkansas has agreed to an MOU with Arkansas counties and Arkansas cities — an MOU that we can endorse to the united counties of Arkansas.

Colin Jorgensen Risk Management Litigation Counsel