Board reconsiders class-action opioids suit, opts in

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BRATTLEBORO — The town has rescinded its decision to opt out of a class-action lawsuit to recoup costs associated with the opioid crisis.

"We're hedging our bets," Select Board member Elizabeth McLoughlin said during a board meeting Tuesday. "Let's go."

The town could maximize the results of litigation by staying in a class-action lawsuit involving all towns, cities and counties in the United States that have not opted out.

The Brattleboro Select Board decided last week to file its own suit against drug manufacturers, distributors, chain pharmacies and pharmacy benefit managers but opted out of the class-action suit. On Tuesday, Town Attorney Bob Fisher brought new information to the Select Board to reconsider the latter decision.

The negotiating class was created to seek settlements with defendants who make, distribute or sell opioids nationwide. Joining the class gives groups "maximum negotiating power, makes the negotiation of comprehensive settlements a more practical process, enables Defendants to know the group with which they are negotiating, and enables Class Members to vote on resulting settlement offers," according to opioidsnegotiationclass.info. Defendants are accused of misleading physicians and the public about the addictive quality of prescription opioids in an effort to increase sales, and ignoring their responsibilities to report and stop suspicious opioid sales.

Fisher encouraged the board to take the advice of the lawyer who filed the other suit and authored a memo on the subject.

"By remaining in the class, Brattleboro will have a voice at any national settlement table where negotiations are being had with those defendants who seek to use the class vehicle," wrote Joanne Cicala, an attorney representing Brattleboro and Bennington in multi-district litigation (MDL), which is a special federal legal procedure intended to speed up the process of complex cases. "[I]t may present the only way for Brattleboro to recover."

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Cicala said if Brattleboro opted out, it would not have access to information learned when evidence is gathered and could lose out on any resolution resulting from defendants who pay the class as an alternative to bankruptcy.

"It will be constrained to wait for what can reasonably be expected to be a number of years before its claims may be heard," she wrote. "If a global deal is reached, our ability to advocate for a reasonable allocation to Brattleboro — or additional consideration — will be constrained by our position as outsiders, without a trial date."

Staying in the class "will permit us to work up your case even while we are awaiting a trial setting," Cicala wrote. "[T]his will also permit us to better value your claims in the context of settlement discussions with any national defendants who seek to use the class vehicle."

Cicala said if the class if rejected through an appeal, there would be no harm to Brattleboro having consented to joining. Fisher noted the town would not be able to recover funds from the same defendant twice with these cases.

If a settlement is proposed, the class is expected to have a vote on whether to approve or reject it. National data would then be used to determine each community's share of the settlement fund based in part on the number of opioids shipped, opioid-related deaths and people who suffer from opioid use disorder.

The deadline to opt out of the class-action suit was Friday and the town submitted a form to do so. Cicala "explained there was a way to rescind the opt-out if the board wished to do so," Fisher said. "That has been done before."

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.


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