Risk Update

Conflicts News — Talc Conflict Called, Another Opioid DQ Attempt

Posted Dan Bressler

“Johnson & Johnson Moves to Disqualify Beasley Allen From Talc Leadership” —

  • “Johnson & Johnson has moved to disqualify plaintiffs attorney Andy Birchfield and his firm, Beasley Allen, from the talcum powder multidistrict litigation, citing a new partnership he formed with one of its former lawyers.”
  • “Birchfield and his firm have struck an alliance with James Conlan, a former partner at Faegre Drinker Biddle & Reath who worked on Johnson & Johnson’s talcum powder litigation before setting up his own business venture last year called Legacy Liability Solutions LLC.”
  • “Their partnership, highlighted in a Nov. 2 Bloomberg Law article by Conlan titled ‘Time to Ditch the Texas Two-Step for a New Mass Tort Strategy,’ seeks to strike a $19 billion deal to resolve talc lawsuits brought by ovarian cancer victims against Johnson & Johnson.”
  • “Conlan outlined the details of the proposal in a Nov. 9 letter to Johnson & Johnson’s board of directors, according to a letter attached to a motion Johnson & Johnson filed on Tuesday to show cause why Birchfield and his firm shouldn’t be disqualified from the talc litigation or, at the least, removed from the plaintiffs’ steering committee, where Beasley Allen principal Leigh O’Dell serves as co-lead counsel.”
  • “‘Our adversarial system does not work if one side’s lawyers obtain privileged and confidential information from the other’s former counsel,’ wrote Johnson & Johnson attorneys Steve Brody, a partner at O’Melveny & Myers in Washington, D.C., and Susan Sharko, of Faegre Drinker in Florham Park, New Jersey. ‘Where plaintiffs’ counsel forms an alliance with one of defendants’ former attorneys to pursue strategies directly adverse to the defendants in the very same matter, there is only one remedy that will restore fairness and the integrity of the judicial process: disqualification of plaintiffs’ counsel, in this case Andy Birchfield and the Beasley Allen law firm.'”
  • “Conlan, who joined Faegre Drinker in 2020, worked on resolving the talc litigation and regularly attended meetings with Johnson & Johnson’s worldwide vice president of litigation, Erik Haas, and other senior in-house counsel.”
  • “‘Conlan was privy to wide-ranging, litigation-driven strategy discussions of the strengths, weaknesses, and optimal trial tactics for J&J’s defense of the underlying tort cases that gave rise to J&J’s resolution strategies,’ the motion says. ‘Birchfield entered into his current alliance with Conlan knowing full well that Conlan represented J&J in the same matter. In fact, Birchfield was negotiating potential resolution of the same cases when Conlan was on the other side of the table advising J&J.'”

“Opioid defendant wants Motley Rice disqualified, citing government work” —

  • “Optum Rx has moved to disqualify the prominent law firm Motley Rice from representing plaintiffs in pivotal upcoming opioid trials, saying Ohio ethics rules prevent the lawyers from using information they learned working as ‘special assistant attorneys general’ for states in private litigation.”
  • “Motley Rice, like other big plaintiff firms, allied with attorneys general and municipal officials to pursue opioid lawsuits on a contingency-fee basis that have so far showered those private lawyers with more than $5 billion in fees. They are continuing with the litigation by targeting any company involved in the opioid business, from consulting firms like McKinsey & Co. to pharmacy benefit managers like Optum Rx, which play a middleman role between drug manufacturers and health plans.”
  • “In its latest motion, Optum Rx said Motley Rice used the power of government subpoenas under contingency-fee agreements with Hawaii, the District of Columbia, Puerto Rico and the City of Chicago to obtain tens of thousands of sensitive records that detail Optum’s business strategy, refund agreements with drug manufacturers and other proprietary information.”
  • “‘With that confidential information in hand as a roadmap, Motley Rice has turned to litigating opioid and other drug-pricing cases against OptumRx and other PBMs on behalf of various private and public clients,’ the PBM said in the Dec. 15 filing. ‘OptumRx does not challenge the government’s authority to investigate, but it is unethical for Motley Rice to extract confidential information from OptumRx by wielding government power and then, after obtaining the information, to represent other clients in private litigation.'”
  • “Optum cited Ohio Rule of Professional Conduct 1.11(c), which prohibits lawyers with ‘confidential government information’ from representing private clients suing the same party. Judge Polster already used that rule in 2019 to disqualify a former U.S. attorney who represented Endo Pharmaceuticals, Optum noted.”
  • “In the Hawaii case, Optum negotiated a confidentiality agreement that prohibits Motley Rice from using the materials to guide subpoenas or draft claims ‘in any other matters outside of its representation’ of the Hawaii Attorney General. The firm cited several court decisions that also upheld the disqualification of lawyers who represented government entities and then went on to represent private litigants against the same defendants.”