Following a months-long, blinded selection process, Michigan Attorney General Dana Nessel last Thursday announced the selection of two outside legal teams to support the Department of Attorney General on two critical litigation fronts: PFAS and opioids.
The result of the selection process, which began in May, was approved by the state Administrative Review Board on September 12th and contracts were recently finalized.
“We are eager to get to work with these national experts to pursue litigation to protect Michigan residents from chemical and pharmaceutical manufacturers and distributors that have poisoned our people and our property,” said Nessel. “These firms bring extraordinary skills, experience and resources to the table and will help guide us on some of the most important work we can do for our state.”
Opioids
Opioids, both prescription and illicit, are one of the main drivers of drug overdoses nationwide and in Michigan. The state has already expended significant resources combatting the opioid epidemic, the crime related to it, and drug treatment and rehabilitation associated with it. The Department of Attorney General sought to determine whether litigation should be brought to protect the State of Michigan, its residents, and the public interest.
A total of seven firms (or teams of firms) responded to the request for proposal issued on May 9. Upon review of the written presentations, four firms were asked to make oral presentations the week of July 15. The final recommendation by the review team was presented to the attorney general August 7 but to ensure objectivity in the decision-making process the actual identities of the firms were not disclosed to the attorney general at that time.
Following substantial vetting, the Department of Attorney General selected the litigation team led by Baron & Budd PC (Dallas, Texas); the law firm of Levin, Papantonio, Thomas, Mitchell, Rafferty, & Proctor PA (Pensacola, Florida); and the Sam Bernstein Law Firm (Farmington Hills, Michigan). This core group incorporates working relationships with nine additional law firms with expertise in the opioids area.
This consortium of firms creates an incredibly deep bench to help make sure Michigan has the expertise available, under one contract, to handle the wide-ranging issues that are present in this historic litigation. While Michigan has only recently engaged these firms, they have been hard at work at the top levels of the existing opioid cases for several years.
The primary terms of the contract call for Nessel to retain total control over all important decisions in any litigation initiated under the contract. The firms assisting in this effort will front all necessary costs and be compensated and reimbursed for costs only if there is a recovery. Costs and fees paid to the firms will come only from amounts paid by defendants and the precise amount paid as a fee will be determined via a mediation panel at the end of the contract. If there is no recovery from defendants, the State of Michigan will owe nothing – i.e., no public dollars have been committed.
PFAS
Michigan is one of the first states in the nation to tackle the investigation and regulation of the emerging contaminants known as PFAS (per- and polyfluoroalkyl substances), a group of potentially harmful contaminants used in thousands of applications globally including firefighting foam, food packaging and many other consumer products. These compounds also are used by industries such as tanneries, metal platers and clothing manufacturers. The Department of Attorney General sought applications from lawyers and law firms with expertise working with states and pursuing manufacturers and distributors of toxic and harmful substances to explore possibilities for pursuing litigation against entities that manufactured or distributed PFAS compounds that came to be located in the environment in Michigan.
A total of 15 firms (or teams of firms) responded to the request for proposal issued on May 9. Upon review of the written presentations, five firms were asked to make oral presentations in July. Two of the selected teams joined forces, and so four presentations were heard by the review team. The final recommendation by the review team was presented to the attorney general on July 31, but to ensure total confidentiality and objectivity in the decision-making process the actual identities of the firms were not disclosed to the Attorney General at that time.
Following substantial vetting, the Department of Attorney General selected the litigation team made up of Fields PLLC (Washington, D.C.); Keating, Muething, & Klekamp PLL (Cincinnati); and DiCello, Levitt, Gutzler LLC (Chicago).
The combined team brings an unmatched combination of extraordinary trial skills and a track record of successfully litigating and settling dozens of large-scale environmental and cases across the United States and internationally. Collectively, they have recovered billions of dollars for their clients and presently represent several states in a wide range of complex, large-scale litigation.
The contract with the firms is a contingency fee contract, meaning that the State pays nothing in costs or fees to the firms unless an award is obtained. The attorney general retains decision-making authority over the direction of the case and over costs incurred, as well as all litigation filings and settlement authority. The contract also specifies the fee scale that applies to compensation to the firms out of an award obtained for the state. If there is no recovery from defendants, the State of Michigan will owe nothing – i.e., no public dollars have been committed.
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