Robins Kaplan on the Front Lines of $589M National Opioid Settlement on Behalf of Tribal Nations

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When the states took on Big Tobacco in the 1990s, Robins Kaplan LLP was there. The firm helped to recover more than $6.5 billion on behalf of Minnesota Blue Cross and Blue Shield and the State of Minnesota for tobacco-related healthcare costs and ongoing anti-smoking initiatives.

In the decades since, another insidious killer has infiltrated society in the form of opioid drugs. Once again, Robins Kaplan is on the front lines of justice. The firm announced in February that proposed settlements totaling $589 million had been reached on behalf of Tribal Nations in the national opioid litigation brought against Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc. N/K/A Janssen Pharmaceuticals, Inc., Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, Inc., N/K/A Janssen Pharmaceuticals, Inc. (Janssen) and distributors AmerisourceBergen Corp., McKesson Corp., Cardinal Health, Inc.

Tara Sutton and Holly Dolejsi

The settlements with Janssen (for $150,000,000, payable over two years) and the distributors (for $439,964,500, payable over seven years) are only partial, as claims against several other defendants are still pending in the consolidated, multi-district federal litigation.

The settlement with the Tribes is separate from the $26 billion that the same companies are negotiating with city, county and state governments, and will be paid out within 30 days of approval. The hope is that payments will begin before the end of the year.

Robins Kaplan attorneys were among the first in the country to identify this opportunity for Tribes to exercise their sovereignty and bring suit against the bad actors behind the opioid crisis. Among the attorneys who achieved this historic victory for the 28 Tribal Nations represented by the firm (as well as all 574 federally recognized Tribes) are Tim Purdon, co-chair of the American Indian Law and Policy Group Brendan Johnson, co-chair of the American Indian Law and Policy Group; Tara Sutton, chair of the National Mass Tort Group and member of the firm’s executive board; and Holly Dolejsi, deputy chair of the National Mass Tort Group.

Understanding the Opioid Crisis

Tim Purdon

the cost of the country’s opioid crisis is estimated to have exceeded $1 trillion from 2001 to 2017, and is projected to cost an additional $500 billion by 2020.”

In order to comprehend the significance of this victory, it is vital to first understand the gravity of the problem. Beginning in the late 1990s, pharmaceutical companies downplayed the addictive nature of opioid pain relievers and encouraged the medical community to prescribe them at greater rates. The result has been widespread misuse of both prescription and non-prescription opioids. In 2017, the U.S. Department of Health and Human Services (HHS) declared the opioid crisis a public health emergency.

Between the years 2016 and 2019, HHS provided $9 billion in grants to states, tribes, and local communities to battle this emergency. However, a 2018 report by Altarum, a nonprofit health research and consulting institute, stated that “the cost of the country’s opioid crisis is estimated to have exceeded $1 trillion from 2001 to 2017, and is projected to cost an additional $500 billion by 2020.”

Altarum’s predictions were right on track, as drug overdose deaths in the U.S. rose nearly 30 percent in 2020, according to preliminary data from the Centers for Disease Control and Prevention. More recent provisional data from CDC’s National Center for Health Statistics indicate that there were an estimated 100,306 drug overdose deaths in the U.S. during the 12-month period ending in April 2021, an increase of 28.5% from the 78,056 deaths during the same period the year before.

As grave as these statistics are, the reality is far graver for Native Americans. The Washington Post reported in 2020 that “nationwide, from 2006 to 2014, Native Americans were nearly 50 percent more likely to die of an opioid overdose than non-natives.” Overdoses and deaths have led to a cascade of social problems in Tribal communities, overwhelming medical, social services, law enforcement and foster-care systems.

Reversing an Existential Crisis

The national opioid settlement is a turning point for Tribes in Minnesota and across the nation. While it marks the beginning of recovery for these hard-hit communities, it is also a long-overdue acknowledgement of the Tribes as a sovereign litigating group.

When Big Tobacco agreed to pay an estimated $240 billion to resolve state lawsuits in 1998, Native American Tribes were excluded from the litigation and no money was set aside for them, despite the fact that they had been among the communities most ravaged by tobacco addiction. The Tribes suffered further indignity when they were later forced to seek grants from states and federal agencies to address tobacco addiction issues in their communities.

The attorneys at Robins Kaplan sought to right that wrong and ensure that Tribes had a seat at the table in the national opioid litigation. U.S. District Judge Dan Aaron Polster shared a similar view. From the outset, he determined that any global settlement in the case must involve the Tribes. The court appointed a Tribal Leadership Committee, made up of attorneys from eight firms, including Robins Kaplan. Both Purdon and Sutton served on the committee.

“The committee was made up of law firms that had experience in both mass tort litigation and Tribal law, and its purpose was to supervise and push these cases forward so Tribes didn’t get left out,” Sutton explained. “We negotiated with the distributors and J&J separate and apart from the cities and counties.”

Brendan Johnson

... there is a fear that due to the loss of children and the number of overdose deaths ... their Tribes may cease to exist."

The devastating human cost relating to the opioid crisis proved an important factor in ensuring that Tribes received swift compensation. Dolejsi said, “As we began to talk with each of the tribes, we began to learn more about how the epidemic impacted them. It was incredibly eye-opening to me and difficult to hear. For example, many Tribes are concerned that so many tribal members with addiction issues are losing custody of their children. As a government, they have to find foster homes, and for some, the problem is so widespread that there are not enough foster families among tribal members to place kids with. This means placing them in non-native homes, when there is already a long history of kids being taken from Tribes in America.”

The outlook for some Tribes is even more grim. Dolejsi continued, “Especially for smaller Tribes, there is a fear that due to the loss of children and the number of overdose deaths, including elders who carry the cultural knowledge, their Tribes may cease to exist. This existential crisis is a unique area of damage and results in a different set of more expedited terms. The disparate impact was taken into account in the settlement, and I firmly believe this was a direct result of the Tribal Leadership Committee.”

Purdon and Johnson co-founded Robins Kaplan’s American Indian Law and Policy Group when they joined the firm in 2015. Purdon is the former United States Attorney for North Dakota, and Johnson is the former United States Attorney in South Dakota. Both have done extensive work in Indian Country.

Purdon commented on the unique positioning of Robins Kaplan and its efficacy in handling this and other high-stakes matters for Tribal Nations. “There is not another firm in the U.S. that has both a mass tort and an American Indian law and policy group. Generally, the firms involved in this case were small-to-mid-sized firms that only represent Tribes, or traditional mass tort firms. They have to build a team to handle a case like this. We’re the only firm with both branches in house. At Robins Kaplan, we have the ability to collaborate and leverage the fantastic lawyers and assets here on their behalf.”

In addition to helping to secure the recent opioid settlement, Purdon and Johnson are achieving other significant wins for Tribes that will improve the lives of Tribal members today and for generations to come. “Brendan and I share a deep commitment to our Tribal clients, and we chose to build this practice. When you work with Tribal communities, it changes the way you look at the world,” Purdon said.

According to Sutton, the opioid settlement demonstrates both Robins Kaplan’s strength in handling multiple plaintiffs and its ability to blend the talents of attorneys across sophisticated practice areas. “The whole point of mass litigation is the efficiencies it brings. It would have been virtually impossible for one of the individual Tribes to bring this type of litigation on its own. One of the most powerful aspects of this settlement is that it will deliver money directly to the Tribes in the quickest, most efficient manner possible, allowing them to arrange for on-reservation, culturally sensitive treatment for their members. That was a big fight for four years in this litigation, and that has never happened before, that I know of. We hope this case will be a roadmap for future litigation to address the widespread harms that Tribal communities are suffering. Hopefully, nothing like the opioid epidemic will ever happen again.”

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