Proceedings moving apace before Ohio U.S. District Judge Dan Polster bode the worst of all solutions to the opioid crisis – a swift global settlement modelled on the tobacco settlement of the 1990s. The result will inflict lasting damage on our constitutional order and do virtually nothing to solve the opioid crisis. Opioid abusers, just like smokers in the infamous tobacco settlement, stand to receive nothing. A single unelected federal judge will have feigned to have “solved” opioids, levied billions in unlegislated taxation, made drugs more costly and harder to secure for non-abusers while leading abusers to turn to heroin and fentanyl, and filled state and local coffers with revenue-by-judiciary while richly endowing trial lawyer barons – hand-picked by the judge – with billions in public funds. A swift education of the American public about this abuse of the judicial process is in order, not a swift settlement.

More: “After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives” [Zachary Siegel, In Justice Today] The FDA is charged with setting uniform national policy on pharmaceuticals; will it allow regulatory power to be transferred pell-mell to MDL court or to the actors in a resulting settlement? [WLF] And from Jim Beck, Drug and Device Law:

…injuries from illegal opioid use are precisely the sort of injuries that the in pari delicto doctrine was designed to preclude from being recovered in litigation.

Well, what about the states as plaintiffs?…[W]ho can restrict the rights of physicians to prescribe drugs for off-label uses? That would be the states, in their traditional roles of regulators of medical practice…. States could ban precisely the off-label uses they are complaining about, but they haven’t.

Earlier here.

Courts are no place to set opioids policy is a post from Overlawyered - Chronicling the high cost of our legal system

The Financial Times has predicted a “tidal wave” of litigation that will snowball into a global settlement. Once an industry finds itself in a position where it faces a plaintiff at every level of government in nearly every state, cities, towns, counties and states jostle to put their claims into suit to get a piece of the action, “particularly when it doesn’t cost politicians anything,” as Richard Ausness, a professor at the Kentucky College of Law, told the FT.

Which leads to the heart of the question. Any settlement will likely follow the template of the tobacco Master Settlement Agreement, a quarter of a trillion-dollar wealth transfer that bloated state governments, levied unlegislated and cruelly regressive taxes on smokers, and sent $20 billion in unappropriated public money to the state AGs’ favorite donors: the mass-tort trial lawyers who have become government-financed Lawyer Barons.

A similar settlement on opioids would temporarily ease fiscal crises in the many states that have frittered away their tobacco-settlement money; but it would only encourage more such lawless and unlegislated regulation of other targets. Furthermore, it will lead to higher pharmaceutical prices and higher healthcare costs and premiums, in a process that is utterly opaque to the public, taxed without representation to enrich the lawyers (many of them former state Attorneys General stepping into a self-engineered path to personal wealth) and the governments with which they are in league.

Read the whole thing here.

P.S. Esme Deprez and Paul Barrett of Bloomberg on wheeler-dealer Mike Moore.

Peggy Little on opioids as next tobacco is a post from Overlawyered - Chronicling the high cost of our legal system

Parlay sweetheart attorney general contracts into multi-billion-$-fees? https://t.co/t9OQ2zupwm

— Walter Olson (@walterolson) July 24, 2017

Which in turn played off Jonathan Adler’s:

Create a highly profitable cartel that funds state projects & is protected by federal regulations? https://t.co/2Vxf9ujp2W

— Jonathan H. Adler (@jadler1969) July 24, 2017

And Gabriel Malor’s:

Get astoundingly rich with the help of Congress? https://t.co/VUxoX9bC6P

— Gabriel Malor (@gabrielmalor) July 24, 2017

Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:

Damn straight! That's the business model.

— Joe Nocera (@NoceraBV) July 24, 2017

And:

Don't forget: …and actually secure the future of the manufacturers, with the consumers the only ones who lose anything.

— Carl V Phillips (@carlvphillips) July 24, 2017

Woo Hoo! I can't wait until I get to tell a cancer patient all I can give her is a Tylenol! ?

— Bona Felis (@scsloan01) July 25, 2017

In a more conventional op-ed vein, there’s this from Tiger Joyce.

“Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco” is a post from Overlawyered - Chronicling the high cost of our legal system

Liability roundup is a post from Overlawyered - Chronicling the high cost of our legal system

By the time my book The Rule of Lawyers came out in its 2004 softcover edition, enough was known about the multistate tobacco settlement for me to call it a “gigantic heist.” More stories have emerged since then. How many more still haven’t come to light?

Prosecutors: “Fast Eddie” Vrdolyak got secret cut of Illinois tobacco fees is a post from Overlawyered - Chronicling the high cost of our legal system

Although the blithe denials of a couple of sources who spoke to The Hill might suggest otherwise, contingency-fee representation of states and other public bodies in damages claims was deemed ethically improper over most of American history. It’s a story I tell in The Rule of Lawyers, where I talk about Dickie Scruggs’ pioneering venture in the early 1990s in representing the state of Mississippi in claims for removal of asbestos from government property:

The United States [as of this point] had long justified its departure from other countries’ [bans on contingent fees] on the grounds that otherwise [given our lack of “loser-pays”] some poorer clients might be unable to obtain a lawyer at all. But no one was seriously claiming that no lawyer could be found to handle the asbestos case for the state of Mississippi on an hourly fee basis.

Until quite recently the notion of letting lawyers represent government on a contingency-fee basis would have been seen as pernicious, absurd, or both. But as Scruggs was no doubt aware, times were changing fast. Many of America’s legal authorities had begin to regard contingency fees — and the encouragement they gave to speculative litigation — not as a lesser evil that should be limited to the cases where it was necessary, but as something wholesome and beneficial in itself. The first experiments had already been noted by the end of the 1980s, with the state of Massachusetts hiring private lawyers on contingency for asbestos rip-out cases. If contingency fees for public lawyering could pass the ethical smell test in the state that was home to Harvard Law School, why shouldn’t they do so in Mississippi, too?

Since the Great Tobacco Robbery steered billions of dollars in fees to the pockets of politically influential law firms, the practice has been the subject of continued lively controversy, with legislative proposals in many states aiming to curtail or eliminate the opaque or even undisclosed deals by which private law firms get themselves cut themselves in on a share of public moneys by attorneys general dependent on their political support. Earlier on the contingency-fee angle in the climate subpoena affair here and here.

Confirmed: climate denial heresy hunt based on contingency fee deal is a post from Overlawyered - Chronicling the high cost of our legal system

“Oil as the new tobacco” — and what that might mean is a post from Overlawyered - Chronicling the high cost of our legal system

As one of the shrewdest analysts of the outrageous tobacco litigation saga, Little is particularly well situated to spot the parallels:

…Nearly every speaker [at the “AGs United for Clean Power” press conference] expressly cited the state AGs’ successful victory over the tobacco industry as a template for this action. One AG called upon other countries, states, communities and individuals to join in this effort. Why the public announcement before the facts come in? Why the global call to arms by this minority of state AGs?

An alert observer will recognize that this press conference follows right on the heels of drastic fiscal crises in many states. The state AGs’ wildly successful settlement with the tobacco industry in the 1990s –which incidentally also deployed foreign countries, dissenting states, cities, towns and health insurers to amass industry-busting claims– shifted a quarter of a trillion dollars to the states and their attorneys, leading to fiscal and governmental bloat that, to borrow a term from the climate activists, is unsustainable. New targets need to be identified and demonized so that this state regulatory confiscation from private industry can continue.

Another echo is the role of private law firms angling for what could be stupendously large contingency fees, a phenomenon that was the driving force of the state tobacco litigation. Little notes the role of prominent class action and tort firm Cohen Milstein, which “has a state AG practice headed by partner Linda Singer, former AG of the District of Columbia. The New York Times has profiled [its] solicitation of state AGs to bring class action and mass tort suits.” Another private attorney involved in the new affair, Matt Pawa, is likewise deep in contingency-fee representations of state attorneys general to pursue ostensibly governmental claims in which public officials would ordinarily be expected not to take a personal financial interest. If the AGs’ press conference was characterized by “hot,” accusatory, prejudicial rhetoric more often associated with plaintiff’s lawyers than with professional prosecutors, this might be why, Little notes.

She also makes clear the deep political illegitimacy and unaccountability of the regulation-through-litigation Fourth Branch these suits are intended to set up:

These extortionate suits are cynically Made to Settle. Professor G. Robert Blakey, a RICO consultant engaged by the Department of Justice to plan the federal tobacco lawsuit, frankly admitted, “this case is not made to win, it’s made to settle.” Both the state and its contingency fee outside financiers are thus in a position to reap enormous rewards with no risk of judicial precedents that would stem the tide of other, like initiatives against other industries. A state is a subsidized political plaintiff, driven by interest groups and ideology and its officers’ political ambitions; it can afford to bring a weak case and pursue it more vigorously than could any private plaintiff. Further, the arsenal of remedies at its disposal—consent decrees, injunctive relief, enforcement powers available under its consumer protection, trade practices and antitrust statutes—are simply not available to a private tort plaintiff. All of which underscores why these contingency arrangements violate the targets’ due process rights.

I wrote a whole book in 2003 — The Rule of Lawyers — on the pretensions of this emerging Fourth Branch of litigators and why they were not consistent with American self-government. For a while — as one after another attempt at a “next tobacco,” from guns to soft drinks, failed to take off — it looked as if maybe our system had learned the lesson and that the scandals would not repeat. If only that were so!

Peggy Little on the climate advocacy subpoenas is a post from Overlawyered - Chronicling the high cost of our legal system

Relatedly, Andrew Stuttaford thinks I am too kind in describing CDC director Thomas Frieden as in denial about the prospective health benefits when smokers switch to vaping. And thank you to Andrew for describing Overlawyered as “must-read”.

P.S. Faced with two options on how to regulate premium cigars, FDA chose the harsher, of course [HalfWheel, Jacob Grier (“The market for cigars is about to become a lot less diverse and a lot more boring.”)]

More: I’ve got a piece up at Cato now on winners and losers from the FDA’s move. Plus, a new Jacob Sullum column: “The FDA’s deadly e-cigarette regulations.” And a Washington Post editorial defends the agency’s action on a for-the-children rationale, yet says not a word about the precipitous plunge in youth smoking rates and only refers in passing to the issue of harm reduction.

The FDA’s war on vaping is a post from Overlawyered - Chronicling the high cost of our legal system

Earlier generally here and specifically on the subpoena of the Competitive Enterprise Institute here and here.

Climate advocacy subpoenas, III is a post from Overlawyered - Chronicling the high cost of our legal system