Law360 (March 14, 2019, 2:40 PM EDT) — Sherman Joyce’s recent Law360 guest article, “Gov’t Opioid Suits Hide Attorney’s Personal Interests,” contained generalizations and oversimplifications — as well as some very creative assumptions around causes and effects. As a principal of a firm that takes pride in its track record of holding corporations accountable and successfully recovering billions of dollars in settlements for its clients, I felt a response was warranted.
We agree with Joyce’s opening contention that two decades after the national tobacco settlement resulting from litigation by 46 states, it is time to take a moment to reflect on the outcomes. There were many lessons learned from that litigation, the most important of which is that even when states prevail in these kinds of suits, there is no guarantee that the recovered monies will ever find their way back to the communities and individuals that suffered the most impact.
In fact, the only communities that were able to directly recover monies from the tobacco settlement were the four municipalities that sued individually. It is this lesson that is driving hundreds of municipalities around the country to sue opioid manufacturers and distributors on behalf of their communities, thereby guaranteeing that settlement dollars will go directly back to the localities devastated by the crisis.
And local governments are in dire need of relief. With 50,000 deaths a year and more than 1,000 overdose incidents a day, this man-made crisis is stressing municipal budgets to the breaking point, forcing cities to scramble to meet the increased demand for emergency response services, law enforcement and treatment programs and siphoning off resources earmarked for other government programs and services.
Joyce suggests that suits litigated by contingency-based law firms somehow breed corruption, and that attorneys for these cases are selected on a “pay to play” basis, with lucrative contracts the reward for political contributions. While one can always find examples of impropriety on either side of big money stakes litigation, this is simply not an accurate characterization of most of the cases currently being filed against opioid manufacturers.
Our firm, which currently represents 37 municipalities in their opioid suits, was retained because of our extensive experience successfully leading pharmaceutical, consumer protection, securities fraud, antitrust and other complex cases. Hardly “personal injury lawyers,” a term Joyce uses frequently and pejoratively in his article, many of our attorneys are former law clerks to federal and state court judges and prosecutors for the U.S. Department of Justice, state attorneys general and major municipalities.
These legal experts have extensive knowledge on pharmaceutical litigation, are sensitive to the issues unique to government representation and appreciate the necessity of close coordination with municipalities. They also believe in the importance of recovery for their clients.
Joyce’s insinuation that firms representing states and municipalities against Big Pharma are unduly driven by “profit motivation” — and that working on a contingency basis is somehow inherently unscrupulous — is simply disingenuous. The truth is that all attorneys are compensated for their work, and to imply otherwise is absurd. And, as far as profit motivation goes, those attorneys who advocate for so-called tort reform are usually well-compensated by CEOs and corporations with deep pockets and self-interest in limiting any check on their conduct.
The system of contingency fees, in which attorneys advance costs and get paid only if they succeed in recovering for their clients, is not only appropriate for opioid litigation, it is necessary. Simply put, individuals and municipalities cannot afford the enormous costs of unraveling complex fraud schemes, and need contingency-based lawyers to advocate for them. Entering into agreements that require payment of attorneys only if they succeed in obtaining losses allows individual victims of corporate malfeasance, who could never hope to stand up to the armies of expensive lawyers that corporations hire to protect their multi-million-dollar interests, to have their day in court and the opportunity to recover losses resulting from corporate wrongdoing.
The U.S. Supreme Court has repeatedly recognized as much, noting, for example, that the Federal Rules Advisory Committee that helped to draft the rules governing class action litigation “had dominantly in mind vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.”
Joyce’s contention that the government bears some responsibility for the opioid crisis is not without merit; the U.S. Food and Drug Administration has dropped the ball more than once. But the conclusion that responding to the crisis is the sole responsibility of Congress, state legislators and federal and state public health officials and regulators — and that, therefore, the civil justice system is not the appropriate avenue to address this crisis — is a bridge too far.
Private enforcement offers critical support to public/regulatory enforcement by making sure that victims get their day in court, and that wrongdoers are deterred from continuing to prey on individuals and communities. The Supreme Court has long recognized that private actions to enforce federal antifraud laws are “an essential supplement to criminal prosecutions and civil enforcement actions.”
The claims underlying the opioid litigation have been repeatedly investigated by the U.S. Department of Justice, the FDA and at least 27 state attorneys general across the country. However, even though the defendants in those actions collectively paid hundreds of millions of dollars, they did not stop engaging in the same conduct that caused the opioid epidemic plaguing this country in the first place. Opioid litigation is serving a critical role by bringing tremendous pressure on these companies to change their practices.
Joyce concludes his opinion by noting that lawmakers and elected officials need to hear from their constituents. We couldn’t agree more, and encourage citizens to let their local, regional and state representatives know that they want the corporations that knowingly contributed to the scourge of opioid addiction that has ravaged their communities to finally be held accountable.
David R. Scott is managing partner of Scott & Scott Attorneys at Law LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Amchem Prods. Inc. v. Windsor , 521 U.S. 591, 617 (1997).
 Tellabs Inc. v. Makor Issues & Rights Ltd. 551 U.S. 308, 313 (2007).