Editor’s Note: In the June 18, 2018, issue of Law360, Manatt shared insights into the spate of opioid-related lawsuits that state attorneys general have filed over the past year and the bipartisan multistate investigation that several had been leading. The lawsuits demonstrate attorneys’ general willingness to litigate, if negotiations are ineffective. The article, summarized below, calls out the important lessons for any organization that may find itself in the crosshairs of a multistate attorneys’ general investigation. Click here to download the full article.

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Over the past 12 months, 23 state attorneys general have brought lawsuits against opioid manufacturers. Even more noteworthy is that of the last six states to sue—all of which filed in a coordinated effort on May 15—several were leading the bipartisan multistate investigation. The decision to litigate by prominent bipartisan states—such as Texas, North Carolina and Florida—will have interesting repercussions on the prospect of a universal settlement with the attorneys general.

Advantages of Multistate Investigations—and What Sets the Opioid Investigation Apart

While each state is free to use its consumer protection laws independently, on large cases of national import, attorneys general will frequently combine their staffing resources and conduct joint multistate investigations. These investigations offer advantages for both companies and states. Companies can centralize their negotiations with a single committee instead of having 50 separate conversations. Attorneys general can more efficiently spread discovery tasks across multiple offices rather than having each state go over the same material.

There are several aspects of the opioid cases that are unusual. First, many states that were part of the multistate investigation, even in leadership roles, have pulled out, which is rare. Second, the states publicized the fact there was a multistate investigation, which was an extraordinary step. Third, multistate investigations usually don’t involve questions of liability but typically focus on issues such as restitution and compliance monitoring that don’t need to be solved through litigation.    

The defining moment for the opioid cases may turn out to be the press conference held by Washington Attorney General Bob Ferguson last September at which he announced that he was pulling out of the multistate investigation. While he was gracious in his comments about the efforts of his colleagues who remained part of the multistate investigation, Ferguson made it clear that it was time to go to court. Nine months later, almost half of the attorneys general have come to a similar conclusion.

In another remarkable turn of events, several attorneys general have secured the services of class action plaintiffs to bring their actions. That some states, even ones with Republican attorneys general, are willing to bolster their own career staff with class action lawyers sends the powerful message that attorneys general are not only unafraid to litigate, but willing to secure the resources necessary to see a matter through to the end.

Conclusion

The opioid cases demonstrate that the attorneys general are willing to break from the pack, litigate and seek outside assistance. While it seems unlikely that this will become the “new normal,” it is clear that when multistate investigations form, there will be a credible threat that if negotiations break down, litigation will ensue. The opioid litigation is very likely gearing up for a long, hard grind in the courts, but the impact of these actions will be felt throughout all attorney general investigations for a long time to come.