Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 1 Office of the Solicitor General Office 614-466-8980 Fax 614-466-5087 September 24, 2019 Office of the Clerk United States Court of Appeals for the Sixth Circuit 540 Potter Stewart U.S. Courthouse 100 E. Fifth Street Cincinnati, Ohio 45202-3988 Re: Supplemental facts notice in In re State of Ohio, No. 19-3827 Dear Ms. Hunt: Ohio is writing to alert the Court of an important factual development in the District Court. On September 19, 2019, Defendant Allergan PLC sent a letter to Ohio regarding Allergen’s settlement with Summit and Cuyahoga Counties to resolve the claims asserted in the bellwether trials Ohio asks this Court to halt. In its letter, Allergan asserts that the counties partially resolved the State’s claims and that the State can no longer recover for harm to Ohio residents in those counties: As you know, the law prevents double-recovery for the same alleged harms, and Allergan of course reserves all of its rights to block or seek set-off of any overlapping claims or alleged harm to Cuyahoga or Summit counties or those counties’ residents that the State may try to bring, to the extent such claims have been resolved through settlement.1 The September 19 Allergan letter is attached, as is the August 21 Ohio Attorney General Letter to which it responds. 1 30 E. Broad Street, 17th Floor, Columbus, Ohio 43215 www.OhioAttorneyGeneral.gov Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 2 The Allergan letter crystalizes the harm of the bellwether trials to Ohio. At least one defendant has taken, and others likely will take, the (incorrect) position that the political subdivisions can assert the State’s claims and bind Ohio. Ohio is harmed by the mere assertion of this position, because it complicates the work Ohio must do to address the statewide opioid crisis. This harm is compounded by the District Court’s desire to leverage settlement at all costs, because the closer the parties get to trial, the more likely it is that the remaining defendants will act to avoid the trial by settling with the subdivisions. Any settlement that purports to partially resolve Ohio’s claims further complicates Ohio’s statewide efforts and impinges its sovereign interests. Ironically, far short of the “global resolution” that the District Court nobly seeks, these settlements creates more litigation by requiring Ohio to litigate the meaning and application of the political-subdivision settlements in Ohio’s pending state-court suit against the settling parties. Sincerely, DAVE YOST Ohio Attorney General /s/ Jonathan Blanton JONATHAN BLANTON* Deputy Attorney General for Major Litigation *Counsel of Record CHARLES MILLER Office Counsel MICHAEL J. HENDERSHOT Chief Deputy Solicitor General SAMUEL C. PETERSON Deputy Solicitor General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-728-1171 Jonathan.Blanton@ohioattorneygeneral.gov Counsel for the State of Ohio Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 3 CERTIFICATE OF SERVICE I hereby certify that on September 24, 2019, the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. I further certify that a copy of the foregoing has been served via United States First Class Mail upon the following: Hon. Dan Aaron Polster Carl B. Stokes Court House 801 West Superior Avenue, Courtroom 18B Cleveland, OH 44113-1837 Email: Polster_Chambers@ ohnd.uscourts.gov Sarah Carroll Attorney, Appellate Staff Civil Division, Room 7511 U.S. Department of Justice 950 Pennsylvania Ave. NW Washington D.C. 20530 Email: sarah.w.carroll@usdoj.gov /s/ Jonathan Blanton Jonathan Blanton Deputy Attorney General Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 4 DAVE YOST Office 614-728-5458 Fax 614-466-5087 I -..OHIO ATTORNEY GENERAL August 21, 2019 Via E-mail: robert.bailev@allergan.com Robert D. Bailey, Executive Vice President and Chief Legal Of?cer Allergan PLC Re: Ohio Opioid Litigation Dear Mr. Baily: My of?ce has received word of your partial settlement with Cuyahoga and Summit Counties, and related entities. In light of the pending settlement, I wish to remind you that several of the claims asserted by the political subdivisions are owned by Ohio, and can only be settled by me as Attorney General. (See my July 23, 2019 letter to the MDL court [Doc 1973] detailing this point.) No settlement with any political subdivision(s) relieves Allergan PLC of any liability to the State for any claim that Ohio has brought. Allergan settlement re?ects no more than hard municipal costs paid directly by the political subdivisions, and does not include settlement of any portion of any claim brought by the State. I am doing you the courtesy of making this clear prior to you ?nalizing your settlement. Yours, ave Yes Attorney ral of Ohio cc: Donna Welch donna.welch@kirkland.com John Mitchell ohn.Mitchell@Thompson.Hinecom 30 E. Broad Street, 17th Floor, Columbus, OH 43215 Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 5 KIRKLAND ELLIS LLP AND AFFILIATED PARTNERSHIPS 1301 Avenue NW Washington. DC. 20004 Jennifer Levy. P-C- United States To Call Writer Directly: Facsimile: +1 202 389 5211 +1 202 389 5000 +1 202 389 5200 jennifer.levy@kirkland.com wwkirklandcom September 19, 2019 Via Email: General Dave Yost Ohio Attorney General 30 E. Broad Street, 17th Floor Columbus, OH 43215 Re: Allergen MDL Track 1 Settlement Dear General Yost: I write in response to your August 21 letter addressing my client?s settlement with the MDL Plaintiffs. Your letter states that ?several of the claims asserted by political subdivisions are owned by If that is indeed your position, it would seem that your of?ce would immediately intervene in the pending political subdivision cases and assert its rights over these claims as other state AGS have done and are doing in similar cases. As I am sure you are aware, Defendants raised these same arguments early in the litigation, your of?ce failed to take any position, and Judge Polster rejected them. We have reviewed your submission to the 6th Circuit and look forward to that Court's decision as to this contested legal issue. But of course, to the extent that the State of Ohio believes that it owns the claims being pursued in the MDL, it would seem obvious and appropriate that the State would intervene in that action directly. With respect to your contentions that ?no settlement with any political subdivision(s) relieves Allergan PLC of any liability to the State for any claim that Ohio has brought? and ?Allergan?s settlement re?ects nothing more than hard municipal costs paid directly by the political subdivisions and does not include settlement of any portion of any claim brought by the state? Allergan disagrees with these broad assertions. As you know, the law prevents double? Beljing Boston Chicago Dallas Hong Kong Houston London LosAngeles Munich NewYork PaloAlto Parls San Francisco Shanghai Case: 19-3827 Document: 16 Filed: 09/24/2019 Page: 6 KIRKLAND 8. ELLIS LLP General Yost September 19, 2019 Page 2 recovery for the same alleged harms, and Allergen of course reserves all of its rights to block or seek set-off of any overlapping claims or alleged harm to Cuyahoga or Summit counties or those counties? residents that the State may try to bring, to the extent such claims have been resolved through settlement. Sincerely, ermifer G. Levy cc: Bob Bailey PD Villarreal Donna Welch John Mitchell