Loading...
HomeMy WebLinkAbout2018 16_LEGAL COUNCIL OPIOID EPIDEMIC_2019.02.19OWASSO CITY COUNCIL AMENDED RESOLUTION NO. 2018-16 A RESOLUTION OF THE OWASSO CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, AUTHORIZING RETENTION OF LEGAL COUNSEL TO PURSUE LITIGATION ADDRESSING THE OPIOID ADDICTION EPIDEMIC WHEREAS, pharmaceutical opioids have harmed the City of Owasso and its citizens. This harm was created and exacerbated by the misconduct and illegal activities of opioid manufacturers, distributors and other third parties, and constitutes a public nuisance in the City of Owasso; and, WHEREAS, there is a substantial need for legal services to pursue the City of Owasso's claims against opioid manufacturers, distributors and potential other third parties; and, WHEREAS, the City of Owasso selects the legal team of McAfee & Taff, a Professional Corporation, and Fulmer Sill, PLLC, to serve as counsel to prosecute this matter working under the oversight and approval of the City of Owasso; and, WHEREAS, all fees to be paid to counsel are contingent upon the recovery of penalties, damages, attorney's fees, and costs. Fees shall be paid only from such recovery. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT: retention of the legal team of McAfee & Taft, a Professional Corporation, and Fulmer Sill, PLLC, shall be authorized for the filing of a civil suit against opioid manufacturers, distributors and other potential third parties for penalties, damages, injunctive relief, and to abate the public nuisance, and any other remedy available by law. The Mayor is further authorized to execute the Representation and Fee Agreement in this matter. BE IT FURTHER RESOLVED THAT: any monies received in settlement of, or by judgment in, this litigation shall be utilized by the city of Owasso solely for purposes of prevention, treatment, counseling or education related to the use of opioids grad- addiction. APPROVED AND ADOPTED this 19th day of Owasso, Oklahoma. ua Attest: F, t.liiann M. Stev ns, City Clerk Approved As To Form: JUIV Lombardi, City Attorney Council of the City of R agar -REAL Commonly TO: The Honorable Mayor and City Council FROM: Julie Trout Lombardi City Attorney SUBJECT: Amended Resolution 2018 -16, authorizing filing of civil suit against opioid manufacturers, declaring a public nuisance and authorizing abatement of the nuisance DATE: February 15, 2019 BACKGROUND: The Council previously approved Resolution 2018 -16 on December 18, 2018. This resolution authorized the filing of a civil suit against opioid manufacturers, distributors and other potential third parties for penalties, damages, injunctive relief and other remedies available by law. Counsel for the City has advised that they intend to include a cause of action in the petition alleging that the defendants' misconduct regarding opioids has created a public nuisance in the City of Owasso. Therefore, it is necessary to amend Resolution 2018 -16 to include language declaring a public nuisance and authorizing abatement of the nuisance. RECOMMENDATION: Staff recommends approval of Amended Resolution 2018 -16 authorizing the filing of civil litigation against opioid manufacturers, distributors and other appropriate third parties, and determining that the harm created by the misconduct of these parties with regard to opioids constitutes a public nuisance in the City of Owasso, and further authorizing counsel to file a legal action to abate the public nuisance. ATTACHMENTS: Original Resolution 2018 -16 approved on December 18, 2018 Amended Resolution 2018 -16 OWASSO CITY COUNCIL RESOLUTION NO. 2018-16 A RESOLUTION OF THE OWASSO CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, AUTHORIZING RETENTION OF LEGAL COUNSEL TO PURSUE LITIGATION ADDRESSING THE OPIOID ADDICTION EPIDEMIC WHEREAS, pharmaceutical opioids have harmed the City of Owasso and its citizens. This harm was created and exacerbated by the misconduct and illegal activities of opioid manufacturers, distributors and other third parties; and, WHEREAS, there is a substantial need for legal services to pursue the City of Owasso's claims against opioid manufacturers, distributors and potential other third parties; and, WHEREAS, the City of Owasso selects the legal team of McAfee & Taft, a Professional Corporation, and Fulmer Sill, PLLC, to serve as counsel to prosecute this matter working under the oversight and approval of the City of Owasso; and, WHEREAS, all fees to be paid to counsel are contingent upon the recovery of penalties, damages, attorney's fees, and costs. Fees shall be paid only from such recovery. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OWASSO, OKLAHOMA, THAT: retention of the legal team of McAfee & Taft, a Professional Corporation, and Fulmer Sill, PLLC, shall be authorized for the filing of a civil suit against opioid manufacturers, distributors and other potential third parties for penalties, damages, injunctive relief and any other remedy available by law. The Mayor is further authorized to execute the Representation and Fee Agreement in this matter. BE IT FURTHER RESOLVED THAT: any monies received in settlement of, or by judgment in, this litigation shall be utilized by the city of Owasso solely for purposes of prevention, treatment, counseling or education related to the use of opioids and addiction. APPROVED AND ADOPTED this Owasso, Oklahoma. CN IA'AL ris elly, Mayor Attest: Ju M. Stevens, ens, ns nn Approved As To Form: lie Lombardi, City Attorney City Council of the City of REPRESENTATION AND FEE AGREEMENT THIS AGREEMENT is made the _ Owasso, Oklahoma (the "City ") and McAfee Sill, PLLC (collectively, the "Attorneys "). day of December, 2018, between the City of & Taft, a Professional Corporation, and Fulmer WHEREAS, the City believes that it has a cause of action against certain Opioid Manufacturing, Distributors and potentially other third parties (collectively, the "Defendants ") for damages and equitable relief arising out of the conduct of the Defendants in connection with the manufacturing, marketing and distribution of opioids (the "Claim "). WHEREAS, the City represents that they are the owner of the Claim and have not assigned, modified, settled or received payment for the Claim, or entered into any prior fee agreement with any other attorneys) with respect to the Claim. NOW, THEREFORE, IT IS AGREED between the City and the Attorneys as follows: 1. Contingent Fee. In consideration of the services to be rendered by the Attorneys in connection with the Claim against Defendants, if the City obtains a recovery on their Claim, the City agrees to pay Attorneys the following attorneys' fees for the risks of prosecuting this case on a contingency fee basis: a. If the case is settled prior to empanelment of a jury, a sum equal to twenty -five percent (25 1/4) of the Recovery; and b. If the case is settled after empanelment of a jury; or a judgment in favor of the City is obtained, a sum equal to thirty percent (30 %) of the Recovery; (the "Contingency Fee "). In calculating the Contingency Fee, the Recovery will first be reduced by the Costs as defined in paragraph 4 of this Agreement, and increased by any court awarded attorneys' fees as defined by Paragraph 3. 2. Recovery. The term "Recovery" as used herein shall mean all sums and things of value received pursuant to any demand upon or litigation against Defendants whether said sums are received pursuant to settlement, court proceedings or otherwise. 3. Court- Awarded Attorneys' Fees. If the City recovers court- awarded attorneys' fees, the amount awarded shall be deemed part of the Recovery. The City understands that if they do not prevail on certain claims that may be asserted against the defendants, there is a potential for the Court to award attorneys' fees and costs in favor of Defendants. City understands and agrees that any such award in favor of Defendants will be against the City, and the City will be solely liable to satisfy such judgment. Attorneys will not be liable for a judgment of attorneys' fees awarded in favor of Defendants. 4. Costs. All necessary costs and expenses incurred in connection with the CIaims, including but not Iimited to court costs, deposition costs, expert witness fees, witness expenses, computer forensic expenses, e- discovery, copying, Westlaw and/or other legal research fees, settlement expenses, telephone, travel and Iodging expenses of the Attorneys in connection therewith, shall initially be paid for by the Attorneys. Costs may included case specific expenses and the City's pro rata share of any general case expenses or assessments. General case expenses are those expenses incurred in the prosecution of the City's Claim for the benefit of the City that may also arise for other similarly situated municipalities, counties and other parties involved in the opioid litigation. If this matter is removed to an Opioid MDL proceeding in federal court, and it is determined that the City must pay an assessment to the MDL proceedings for attorneys' fees, legal expenses and/or costs connected to the MDL (the "MDL Assessment"), then the MDL Assessment shall be treated as Costs under this Agreement and will be paid to the MDL prior to the calculation of the Recovery. All costs inemzed by Attorneys shall be deducted from any amounts received and repaid to Attorneys before the Recovery is calculated. To the extent the City receives an award of costs from the Court, the amount awarded shall be deemed part of the Recovery. If no Recovery is obtained, City will have no obligation to pay costs, unless the costs are costs awarded to Defendants by the Court on the City's Claims. 5. Assignment of Portion of Claim. City hereby transfers and assigns to Attorneys an undivided interest in City's claims. The undivided interest hereby assigned to Attomeys by City is equivalent to the fees, costs, and expenses, including the percentage of any Recovery, that City, by this Agreement, promises to pay to Attorneys. The undivided interest assigned by this Agreement is a present, not an executor interest. 6. Settlement Decisions. All decisions relative to acceptance or rejection of any settlement offer will remain the sole discretion of the City, provided, however, if the City neglects to accept the Attorneys' advice on whether to accept any settlement offer, the City agrees they will become liable for all costs incurred in said action and any attorneys' fees billed after the date the City receive written notification from Attorneys that they should accept the settlement offer. 7. Attorneys' Obligations. The Attorneys agree that they will diligently institute and prosecute said action to a final determination, make all reasonable and necessary efforts to collect any judgment that may be rendered therein in favor of the City; that they will promptly communicate to the City any offers of compromise; and that, in the event of a judgment unfavorable to the City, they will, if in the Attorneys' sole judgment reasonable grounds therefore exist, appeal said cause and prosecute the same to final determination. Attorneys shall staff this matter with such attorneys and legal assistants as they deem appropriate. 8. Withdrawal. Attorneys may withdraw from representation of City's Claim at any time with written notice. 9. No Guarantee. The City acknowledges that Attorneys have made no guarantee regarding the successful prosecution of the Claim, nor any guarantee regarding the Recovery or the type of relief, if any, which the City may obtain therefrom. Further, the City acknowledges that the Attorneys do not warrant or represent the validity of the Claim, the results of any action or the collectability of any judgment. 10. Multiple Representation. The City understands and agrees that Attorneys may represent other clients, including governmental entities, in connection with claims against Defendants. Defendants may attempt to settle cases in groups under a matrix -type system whereby our clients are offered different settlement amounts, depending on the circumstances of different groups of clients categorized by the specific allegations of misconduct and/or severity of damages. Once settlement value under the "matrix" is determined, the City is given the opportunity to accept or reject the settlement and /or injunctive relief being offered, within the matrix system, for whatever group within which the City may be placed. Defendants may also try to settle all or a portion of our clients' cases as a group, meaning the Defendants may attempt to settle all or a portion of your Claim along with a number of other similar cases the Attorneys are handling. When a Defendant offers this "group settlement" system, Attorneys will get each client's authorization for a minimum, gross amount for which the client authorizes the Attorneys to attempt to settle the client's case. The Attorneys then add up the total of all clients' minimum, authorized settlement values and attempts to settle the group for at least the total of all minimum amounts authorized by all the clients. The City agrees to the above settlement procedures. 11. SeverabiIity. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 12. Amendments and Modifications. The City and the Attorneys specifically acknowledge and agree that this Agreement constitutes the entirety of their agreement and supersedes and replaces any and all prior agreements, negotiations, or discussions between them; and, that this Agreement shall not be amended, modified, or changed in any manner whatsoever unless such amendments, modifications, or changes shall be in writing and signed by all the parties hereto. 13. Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Oklahoma. ATTORNEYS: CITY OF OWASSO, OKLAHOMA: McAfee & Taft By: Todd Court, Vice President Fulmer Sill By: Matthew J. Sill sd REAL PeepIp�REAIC oc(cr -HEAL COmmunlly TO: The Honorable Mayor and City Council FROM: Julie Trout Lombardi City Attorney SUBJECT: Resolution 2018 -16, authorizing filing of civil suit against opioid manufacturers DATE: December 14, 2018 BACKGROUND: The City of Owasso was approached months ago by the law firms of McAfee and Taft and Fulmer Sill to discuss multi- district civil litigation against opioid manufacturers. This litigation is intended to combat the burgeoning opioid epidemic which arises out of decisions and actions of these manufacturers. The City Council met with attorneys from both firms at the work session on August 14, 2018, and again discussed the matter in executive session on October 9th and December 4th, Attorney fees in this litigation would be paid on a contingency basis with 25% of a settlement being paid in fees prior to empanelment of a jury and 30% subsequent to empanelment of a jury or from any judgment in favor of the City. All costs associated with the litigation shall initially be paid by the attorneys, and shall only be remitted by the City if a settlement is reached or a judgment in favor of the City is rendered. If neither occurs, the City will have no obligation to pay fees associated with the litigation. Thus far, fourteen (14) cities have committed to filing multi- district litigation against opioid manufacturers, distributors and other third parties through McAfee and Taft and Fulmer Sill including Oklahoma City, Edmond, Midwest City, Yukon and Broken Arrow. Additional cities have either decided to proceed with other firms or to handle the litigation internally. The proposed resolution authorizing the City to participate in this litigation additionally makes provision for use of any monies recovered through settlement or judgment. Specifically, such monies must be utilized in furtherance of prevention, treatment, counseling or education related to the use of opioids and addiction._ RECOMMENDATION: Staff recommends approval of Resolution 2018 -16, authorizing the filing of civil litigation against opioid manufacturers, distributors and other appropriate third parties, and further authorizing the Mayor to execute a Representation and Fee Agreement with McAfee & Taft and Fulmer Sill, PLLC. ATTACHMENTS: Resolution 2018 -16 Representation and Fee Agreement