Attorney General Leslie Rutledge this week filed an emergency petition to the state Supreme Court asking that a prosecuting attorney representing the state be mandated to withdraw from a lawsuit filed against opioid makers and distributers by a coalition of cities and counties.
A spat has been brewing for some time between the attorney general’s office and the coalition of local governments over litigation strategy, with potentially millions of dollars in damages at stake.
Rutledge fired the first public shot in the turf war on Monday, asking the state Supreme Court to disallow Scott Ellington, the Prosecuting Attorney for the Second Judicial District of Arkansas, from bringing claims on the state’s behalf as part of the lawsuit filed by the coalition of cities and counties in Crittenden County Circuit Court on March 15. That lawsuit, now with all 75 counties and 15 cities as co-plaintiffs, names more than 60 defendants, including major pharmaceutical companies like Perdue Pharma, as well as retailers, pharmacists and medical providers. Ellington was included as a plaintiff, acting on behalf of the state. Rutledge argues that this is improper and that only the attorney general should bring lawsuits for the state. Rutledge filed her own lawsuit on behalf of the state against three major opioid manufacturers on March 29, in Pulaski County Circuit Court.
The convoluted backstory here is that the counties and municipalities, which also filed a separate lawsuit in federal court, wish to pursue this case in state court, which has various strategic advantages. However, that venue is likely only possible if the state is a plaintiff. The coalition of counties and cities tried to get Rutledge on board, and according to court filings there were a number of meetings and discussions over a period of months about the matter. However, they couldn’t come to an agreement and Rutledge declined to participate, potentially meaning that the case would get kicked to a federal court in Ohio that is handling hundreds of lawsuits against opioid manufacturers. As a workaround, the coalition approached Ellington to bring the claim on behalf of the state.
Rutledge, meanwhile, claims that the participation of the counties and cities — and the inclusion of the state, despite her disapproval, in the lawsuit filed in Crittenden County — may end up forcing the state’s own attempt to bring a lawsuit to be kicked to the federal court in Ohio. She argues that the actions of the coalition and Ellington jeopardize millions of dollars in potential damages that could be awarded to the state.
In court filings, both sides in the dispute lob barbs at each other for contracting with outside, private attorneys from out of state.
Rutledge says that the attorney general’s office only became aware that Ellington was going to participate on behalf of the state when it received a copy of the complaint form from one of the coalition’s counsel the day after it was filed. She says that no suggestion of that possibility had been made and the attorney general’s office would have objected if it had.
Affidavits filed in response by Arkansas Municipal League executive director Don Zimmerman and Association of Arkansas Counties executive director Chris Villines counter that the cities and counties made a good faith effort to cooperate with the attorney general’s office, only to be stonewalled by Rutledge, who was determined to act without them and to file her lawsuit first (a feat she didn’t manage).
The affidavits describe frequent communications with the attorney general’s office throughout last winter, aiming for “cooperative action” and “joining forces.” According to the affidavits, the cities and counties were set to meet with the attorney general’s office in person on January 25. However, the day before the meeting, Rutledge publicly announced that she had hired outside firms to launch an investigation and potential litigation against opioid manufacturers. She had given no notice of the plan to the cities and counties, according to Zimmerman and Villines. The planned meeting nevertheless took place, and according to the affidavits, “the Counties and Cities advocated for the many benefits of unity, including a collective and concerted action in state court” and stated that they “wished to work cooperatively in the same case with the state, by and through the attorney general.” At that meeting and in the many discussions that followed, according to the affidavits, the coalition made clear that while they wished to cooperate, the state would be included in the legal action they brought even if the attorney general refused to participate.
In the weeks that followed, according to the affidavits, frequent attempts to communicate continued but things went downhill:
The flow of information was always one way. … The attorney general never disclosed what she planned to do. By March, it was increasingly clear that the attorney general had no intention of woking together on joint litigation in response to the Arkansas Opioid Epedemic. It also appeared that the attorney general’s representatives were stalling the filing of a complaint by the Counties and Cities to allow her to catch-up with a goal of filing first. But, only on behalf of the State, thereby undermining the Counties’ and Cities’ united strategy. … On Thursday, March 15, the Counties and Cities learned that the Attorney General planned to file her own complaint, abandoning the Counties and Cities, and attempting to preclude them from including the State as a party in their case.
At that point, the cities and counties filed their lawsuit, and using a legal claim that is disputed by Rutledge, brought in Ellington to represent the state as a plaintiff “because the intertwined nature of the claims made it critical for the counties and cities to include the state as a party in their case.”
Attempts to negotiate continued after the cities and counties filed their lawsuit, but by that point, things got ugly. The attorney general’s office accused the coalition’s lawyers of ethical violations and demanded that they dismiss their lawsuit. According to Zimmerman and Villines, by late March, the attorney general’s office was either avoiding communication or making impossible demands.
In her petition filed in the Supreme Court on Monday, Rutledge wrote, “This case is about who represents the people and the State of Arkansas.” The attorney general, she argued, has exclusive authority to manage the state’s civil legal affairs. “By vesting that authority exclusively in the Attorney General,” she wrote, “the General Assembly sought to avoid intragovernmental conflict and to ensure that the State speaks with one voice.”
Ellington’s action, she said, jeopardizes the state’s ability to pursue its own case against opioid manufacturers. The claims made in the coalition’s lawsuit, she wrote, “differ significantly from — and in some cases conflict with — those made in the State’s Opioid Litigation.”
Rutledge notes, accurately, that certain complaints against opioid manufacturers can only be made by a state attorney general, the only one statutorily authorized to seek civil penalties under the Deceptive Trade Practices Act and the Medicaid Fraud False Claims Act. The dispute is whether the Crittenden County lawsuit would interfere with the separate lawsuit she filed on behalf of the state in Pulaski County. She argues that it would: “[T]he potential preclusive effect of legal determinations made in the Crittendent Litigation could result in the loss of millions of dollars in damages that would otherwise have been awarded to the people of Arkansas.”
The heated complaint also states that the maneuver threatens to undercut the state’s sovereignty and principles of democracy:
Ellington’s unlawful actions have impaired the State’s sovereignty and threaten to hamstring our statewide constitutional officers’ ability to carry out the will of the people. Indeed, permitting a single prosecutor — who is accountable to only some Arkansans — to direct the entire State’s actions would set a dangerous precedent that is inconsistent with principles of representative government.
Reached by telephone, Ellington said, “I said if she’s not going to get involved, I don’t mind carrying the water. … My involvement is important for the cities and counties — unless or until the attorney general takes over and steps in, with some assurances that she’ll work with the cities and counties. The cities and counties had to have a state anchor.”
“I never meant to cross the attorney general,” Ellington said. “I was not intending to get into any kind of spitting contest.”
However, Ellington has no intention of voluntarily withdrawing, because he believes his involvement is an important service for the cities and counties. “My mayors, my county judges, my police chiefs, and my sheriffs all have a valid interest,” he said. “I signed on to assist them.”
In a response to Rutledge’s petition, filed in the Supreme Court today, Ellington wrote that he “concluded—as did nearly every Arkansas county and city—that the strategy of uniting Arkansas governments in litigation against the opioid industry is wise and benefits the counties, cities, and most importantly to Respondent, the State.”
Ellington argues that Rutledge’s claim to “exclusive” power to sue on behalf of the State of Arkansas is not supported by the statutory text or case law, and he makes various technical arguments against the validity of her petition. He also argues that the state is free to separately pursue claims not covered in the Crittenden County case, which he says “does not threaten any rights of the state to assert civil penalties under claims delegated to the attorney general.”
For Ellington, here’s the heart of the matter:
Respondent understood that Arkansas Attorney General Leslie Rutledge declined numerous invitations to join the cities and counties in a unified front, instead electing to abandon them and proceed on her own volition, as is now confirmed by the instant Petition. Respondent decided to fulfill his duty as a duly-elected Arkansas prosecutor to advocate on behalf of the State in court and does not regret his decision.
Rutledge wrote in her petition that “time is of the essence” because the pharmaceutical companies named as defendants in her lawsuit have a practice of trying to push opioid-related state litigation into federal court.
“Moreover,” she wrote, “the State’s sovereign interests are implicated with every passing moment by the filing of a complaint in the State’s name without the permission of the State’s exclusive legal representative in such matters.”
She asked the court for a response by Thursday.