To the Editor:
I am writing in response to Mayor DeBaun’s reply to my recent Aug. 17, 2021, piece imploring your community, Shelbyville, to opt in to the recently announced opioid settlement with Johnson & Johnson and the Distributors (AmerisourceBergen, Cardinal Health, and McKesson), so that your community may start to receive much needed funding in lieu of potential protracted litigation with no guarantee of recovery. Having visited your great community many, many times, it was my sincere hope that your elected officials would choose to opt in for the benefit of the citizens they serve since it would mean more financial resources for you and the state now, rather than finding out as long as a decade from now that you were receiving a bad verdict or could have no settlement.
I attempted to have this conversation personally with the mayor and any other interested local leaders – not publicly in the newspaper – the same way I discuss most issues that serve taxpayers and voters before announcing a solution or course of action publicly. I pride myself on my record of partnership with local elected officials and believe that is the best way to serve a shared constituency. In the past, I have worked very successfully with county clerks and commissioners to get the state onto one voter list program and to update all the voting equipment in every Indiana county.
I have been prohibited from working with your local officials on the opioid settlement issue because their hired outside opioid attorneys have not consented to permit me to have private conversations with your mayor and others, even with those attorneys present. I have attached the request that I made. They prohibited such conversation, relying on Indiana Supreme Court rules governing the type of conversations that attorneys can have with represented clients. Such an interpretation of the rules is a disservice to taxpayers and the opioid victims.
The mayor may not be aware that he has hired these outside attorneys because he only references the city attorney. However, your city is in fact represented by attorneys from Puerto Rico, West Virginia and maybe additional venues not even close to Shelbyville. You can confirm this by looking on the court’s formal docket. And they intend to get paid. A lot. For what, no one is really sure at this point. While Shelbyville’s city attorney will not be paid from any opioid settlement, Shelbyville would have entered into a contingency fee contract with national, private outside counsel. Under a contingency fee contract, an attorney or law firm will typically take up to 33 percent or more of the settlement.
There are several other inaccuracies in the mayor’s response that struck me as misinformed. The response was very similar, if not verbatim, to weak arguments that have been made, again, by out-of-county and national law firms representing some other local communities across the nation.
While some local communities filed lawsuits without the assistance of the state Attorney General, the vast majority of Indiana local subdivisions chose not to hire private counsel. Furthermore, Shelbyville is not litigating its claims with other communities. Assuming Shelbyville’s case survives arguments about whether its claims are even viable or recoverable – and then whether it ever gets to trial – and assuming the defendants don’t seek bankruptcy protection, Shelbyville will try its case alone.
The mayor’s response erroneously concluded that the state’s settlement terms dictate 85 percent of the settlement proceeds will go to the state. This is inaccurate. The legislation clearly directs the state to make distributions of 35 percent of the funds to local subdivisions under a regional system to opt-in communities (communities not pursuing their own litigation) to be used for opioid treatment, education, and prevention programs, in addition to the 15 percent of funds that will be distributed on a per capita basis directly to local communities to use in an unrestricted manner. Right there, that’s at least 50 percent of what could be $507 million going right to local communities for whatever they want, subject only to the reasonable parameters of the settlement – the same settlement to which the other communities across the nation will be subject. Moreover, the state’s 35 percent portion of funds will also be used for treatment, education, and prevention programs in local communities. There really are no “state” programs; the money will be used at the local level. Had it been completely up to me, I would have distributed the 85 percent directly to the local communities rather than using state agencies as conduits. Regardless, 85 percent of the $507 million is being spent in local communities.
In other words, Shelbyville’s decision to opt out means it currently will not only not receive a portion of the 15 percent mentioned in the mayor’s response but will also not participate in the regional distribution. Moreover, to the extent there are any concerns about the distribution of the 35 percent for abatement programs, I am committed to work with the General Assembly to make sure the distribution is clearly controlled by local leaders. And, I have called on the Governor to make that same commitment.
Finally, the mayor noted that legislation needed to make Indiana and all its communities eligible for the national settlement was passed at the 11th hour with virtually no input from local communities and that “local folks” deserve a voice. This, too, is inaccurate. It goes without saying that members of the General Assembly are comprised of leaders from the local communities they serve, and they are the ones who passed the legislation. Shelbyville’s delegation voted for this legislation, and they were right to do so. Moreover, Accelerate Indiana Municipalities (AIM) and the Association of Indiana Counties (AIC), representative organizations for local government and two powerful organizations at the Statehouse, both had a hand in shaping the needed legislation. Most importantly, there are future legislative sessions to make fine-tuning adjustments the mayor might be concerned about.
Again, I would have very much liked to have discussed the foregoing with the mayor and other Shelbyville leaders personally, had they and their attorneys allowed such. It’s the best way I know how to serve the great people of this great state. But these outside attorneys want to have a guaranteed payday using taxpayer dollars from the state’s general fund, so they are holding such cooperation hostage. I will not accommodate that kind of behavior. I know the taxpayers and the victims appreciate that.
Indiana Attorney General