Madison - St. Clair Record

Thursday, September 19, 2019

ICJL urges Madison County to reject contingency fee arrangements with outside opioid litigators

By Ann Maher | Oct 25, 2017

The Illinois Civil Justice League (ICJL) is urging Madison County officials to reject the use of contingency fee arrangements with outside counsel if the county decides to join other local governments in pursuing opioid-related litigation.

To date, four southern Illinois counties have filed collective actions against drug manufacturers and distributors alleging they addicted Illinois citizens to opioids for profit.

Attorneys David Cates of Swansea, son of appellate judge Judy Cates; Christopher Cueto of Belleville and his associate Michael Gras; Eric Holland and Seth Crompton of the Holland firm in St. Louis; and Ann Callis, former Madison County chief judge, Greg Jones and Thomas Lech of the Goldenberg firm in Edwardsville, are among plaintiff attorneys representing St. Clair and Alexander counties in litigation that has been removed to the Southern District of Illinois.

Before the St. Clair County action was removed to federal court, Cates, Holland and Cueto were appointed special assistant state’s attorneys to handle the litigation for a contingency of 30 percent in fees from settlement or 35 percent from judgment.

On June 26, suits also were opened in Union and Jersey counties with their State's Attorneys having appointed Callis and others from the Goldenberg firm as special assistant state’s attorneys. Those cases remain pending in state court.

As chief law enforcer of a county, state's attorneys decide whether to bring action on behalf of their jurisdictions.

So far, Madison County State's Attorney Tom Gibbons has remained undecided, having said earlier this month that his office was exploring whether or not it's right for Madison County.

“We have a lot of people who have been harmed by this opioid and heroin epidemic," Gibbons said. "We are engaged in many other efforts to fight this scourge and are trying to determine if we should add these efforts to our portfolio.”

Among the county’s efforts is a grant-funded program to help combat opioid addiction in jail inmates with the medication Vivitrol, an injectable form of Naltrexone which slowly releases over a 30-day period and helps prevent addicts from relapsing.

Regarding what private attorneys can or should pocket in pursuing litigation on behalf of government, John Pastuovic, president of the ICJL, cautions Madison County officials about the "potentially corrupt relationships" that can arise between state prosecutors and plaintiff lawyers.

In a letter to Gibbons, County Board Chairman Kurt Prenzler, Judiciary Committee Chairman Mike Walters and board members, Pastuovic said that due to a Freedom of Information Act (FOIA) exclusion for state's attorneys offices in Illinois, "the taxpayers will likely never get the opportunity to know how you chose their representation."

Without a state's attorney voluntarily releasing contract information to the public, taxpayers won't know how lawyers were chosen and if they got the best lawyers and the best deal, he wrote.

If Madison County decides to go forward with litigation for the purpose of advancing public health and safety, the ICJL is asking the county to follow "oversight principles" outlined by the Manhattan Institute - a group that is critical of contingency fee arrangements and how fees collected from fee “windfalls” get diverted to political campaigns.

The ICJL wants Madison County to seek competitive bidding for outside counsel with a prohibition on political contributions to county officials from firms or their attorneys who've been selected to litigate; legislative oversight from the county's judiciary committee and a limit on the overall hourly rate charged by outside counsel for their representation.

"While the subject of the political contributions between lawyers and county officials is always sensitive in Madison County, examples of abuse exist all over the United States when prosecutors engage plaintiffs’ firms in contingency fee agreements," Pastuovic wrote.

He called for the county to adopt contractual language that would impose strong penalties if political contributions from lawyers involved in the litigation are made to the campaign committees of county officials and organizations that support them.

Pastuovic referenced the Tobacco Master Settlement of 1998 in which he said that plaintiff firms nationwide recovered $30 billion in fees, estimated at a cost of more than $10,000 per hour.

The big tobacco settlement involved an agreement reached between 46 state attorneys general and the four largest tobacco companies who would pay $206 billion to settle Medicaid lawsuits covering tobacco-related health-care costs.

Suits against big tobacco also included consumer actions, such as the $10.1 billion Price v. Philip Morris judgment out of Madison County, which was ultimately overturned, but which Pastuovic said purported to compensate attorneys almost $32,000 per hour.

"The County can avoid these types of embarrassing cash grabs by instituting sensible standards that limit lawyers to hourly fees that Madison County taxpayers would find acceptable," Pastuovic wrote.

Some foresee litigation arising from the opioid addiction crisis as having the potential to exceed the scope of the tobacco settlement, as at least 11 different federal courts are hearing at least 66 substantially similar cases. Plaintiff attorneys are seeking to consolidate claims at federal court in West Virginia or Illinois.

"Across the nation, local governments are struggling with a pernicious, ever-expanding epidemic of opioid addiction and abuse," wrote West Virginia attorney James Peterson in a petition seeking multi-district litigation. "Every day, more than 90 Americans lose their lives after overdosing on opioids. There can be no dispute that the litigation instituted by the Movants addresses one of the most dire problems currently facing the country."

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Madison County State's Attorney Manhattan Institute