MEETING DATE: 4/17/2018
DEPARTMENT: COUNTY COUNSEL
DEPT HEAD/DIRECTOR: Barbara Thompson, County Counsel
AGENDA ITEM PREPARER: Irma Valencia, Deputy County Counsel
SBC DEPT FILE NUMBER: 160
SUBJECT:
COUNTY COUNSEL'S OFFICE - B. THOMPSON
Approve Professional Services Agreement with Baron & Budd, P.C., regarding opioid litigation.
SBC FILE NUMBER: 160
AGENDA SECTION:
CONSENT AGENDA
BACKGROUND/SUMMARY:
Counties are on the front lines of the opioid crisis. In 2017, several states and over 100 counties filed lawsuits against manufacturers and distributors of opioids to recover the costs of prevention efforts, treatment and services as well as jailing residents addicted to prescription painkillers and heroin. The types of damages being sought include employee costs, including overtime, health insurance, workers compensation costs; criminal justice services, including medical examiner costs, storage of bodies, toxicology lab costs, police services, corrections, Narcan/naloxone training; mental health, including addiction counseling, substance abuse clinics; human services, including foster care, family and children services, public assistance for child care, hospital care, indigent burial services; court costs, including public defense services, prosecution, probation, specialized drug courts, juvenile courts and detention, and DUI services.
San Benito County has a unique opportunity to join a recently formed consortium of California counties for the purpose of joining in the federal multidistrict opioid litigation. Approximately 18 California counties have committed to this joint process. Members of the consortium have agreed to work together using the same firm, the same master complaint and the same messaging. This approach allows smaller counties to consolidate their collective resources, use their collective "buying power" to get a proverbial "seat at the table" in this litigation and make it as easy as possible for counties, especially the smaller ones, to participate in this litigation effort if they choose to do so. Members of the consortium will be required to sign a Joint Prosecution Agreement, to file the same master complaint (each County will have some discretion over the defendants they choose to name), to file the complaint on the same day (as part of the messaging and 'impact' strategy), and to work as a team on uniform messaging. The consortium is forming a litigation management team of 3-5 attorneys from the rural counties to act as a liaison and provide leadership for the group.
On 3/16/18, four of the member rural counties interviewed three major firms who specialize in this type of case and are already working on the MDL (Keller Rohrbach, Baron & Budd, & Lief Cabraser/Robbins Geller). While they felt all of these firms were very qualified and capable of representing their interests, they ultimately selected Baron & Budd for the consortium. They were particularly impressed by B&B’s specialized and unique experience representing public entities in this type of litigation, their positioning and leadership within the MDL, their established and well developed client support structure for handling everything from press releases to discovery to closed session memos, and their solid and sophisticated understanding of the State – county relationship and the strategies that could be employed to protect our county interests.
As a one-time offer for consortium members, B&B has agreed to reduce its contingency fee from 25% (the normal rate for counties with populations less than 1M) to 18%. This rate is slightly lower than the 20% initially offered by the other two firms. B&B will advance and cover all litigation costs with no right to recovery against the counties unless we prevail.
Due to the consortium’s commitment to filing all complaints on the same day and their desire to file before an early May settlement conference, it is necessary that interested counties have Board approval to participate in the consortium and hire B&B no later than April 18, 2018.
BUDGETED:
SBC BUDGET LINE ITEM NUMBER:
CURRENT FY COST:
None
STAFF RECOMMENDATION:
1. Authorize the County to join the consortium of small rural California counties for the purpose of participating in the MDL opioid litigation; and
2. Retain the firm of Baron & Budd to represent the County with respect to potential claims against the manufacturers and wholesalers of prescription opioid painkillers; and
3. Authorize County Counsel to approve any minor changes to the Professional Services Agreement, if additional changes are negotiated by the Consortium or other member counties, and to enter into a Joint Prosecution Agreement with other consortium members; and,
4. Approve and authorize County Counsel, or the Chair to execute the final Professional Services Agreement with Baron & Budd.
ADDITIONAL PERSONNEL: