HARRISBURG – The Pennsylvania Attorney General’s Office has the ultimate authority in resolving litigation brought under the Unfair Trade Practices and Consumer Protection Law and not the district attorneys of Philadelphia and Allegheny counties, per a first impression ruling from the Commonwealth Court.
In a unanimous opinion issued on Jan. 26, Commonwealth Court of Pennsylvania judges Renée Cohn Jubelirer, Michael H. Wojcik, Ellen Ceisler, Lori A. Dumas and Stacy Wallace ruled that state Attorney General Michelle Henry can override both Philadelphia County District Attorney Larry Krasner and Allegheny County District Attorney Stephen A. Zappala Jr., in settling lawsuits those district attorneys brought against opioid manufacturers alleging they violated the UTPCPL in marketing their drugs.
Judge Wojcik authored the ruling, which Krasner and Zappala plan to appeal.
“The Office of the Attorney General is pleased with the Court’s decision in this case, holding that the independent lawsuits filed by the Philadelphia and Allegheny County District Attorneys against opioid manufacturers cannot move forward. The Court’s decision also affirms that the District Attorneys are bound to the terms of the multi-billion dollar opioid settlements led by my office and agreed upon by all 67 counties in Pennsylvania, including Allegheny and Philadelphia, as we have consistently maintained. Pennsylvania can receive up to $1.07 billion from those settlements if all counties and other litigating governmental entities, like the District Attorneys, participate. This decision moves Pennsylvania closer to receiving that entire amount,” Henry said, in a statement regarding the ruling.
“It is clear from the Court’s opinion that, as the chief law enforcement officer for the Commonwealth, the Attorney General has superseding authority and is in the best possible position to represent the public interest of the entire Commonwealth while pursuing and resolving these types of broad civil public protection claims.”
In July 2021, then-Pennsylvania Attorney General (and now, Governor) Josh Shapiro and his counterparts from North Carolina, New York, Delaware, Louisiana, Tennessee and Connecticut negotiated a $26 billion settlement with opioid manufacturers, which would see pharmaceutical distributors Cardinal, McKesson and AmerisourceBergen pay up to $21 billion over an 18-year period, and manufacturer Johnson & Johnson pay up to $5 billion over a nine-year period.
As a result, the Commonwealth and its 67 counties were due to receive about $1 billion total of that money over an 18-year time span.
The majority of the settlement money was to be spent on opioid addiction treatment and prevention, and accompanying injunctive relief will see corporate safeguards put in place to more stringently regulate opioid production and distribution from the defendants, and ensure the circumstances which led to the opioid crisis are not repeated.
But Krasner and Zappala were not satisfied by the 2021 settlement agreement and wanted to continue UTPCPL lawsuits against the aforementioned opioid manufacturers and distributors, on behalf of both the cities of Philadelphia and Pittsburgh – arguing that the toll opioids have exacted upon those communities would not be rectified with the proposed settlement amounts, and therefore, both cities should be exempted from any settlement.
“Allegheny County and Philadelphia deserve deep, sustained compensation in the form of billions of dollars from these companies, which regularly exploit all manner of corporate loopholes while refusing to take any real responsibility for the devastation they have unleashed in communities. Our offices are not alone in the fight for consequential accountability from Big Opioids, either: States including Alabama, New Hampshire, Oklahoma, Washington and West Virginia are also refusing to settle for anything less than what their residents deserve,” Krasner and Zappala said in a joint statement two years ago.
“More than 100,000 Americans are dying preventable deaths annually from drug overdoses. Just about every block in our counties has been touched by this crisis. An Allegheny County judge should decide how much is owed by these corporate giants. A Philadelphia judge should decide how much is owed to Philadelphia residents, and local service providers and harm reduction specialists should help decide how those dollars are spent to begin repairing the decades of harm done to Kensington and all affected communities. Our oath as prosecutors requires us to pursue justice in these matters until they are resolved by the courts.”
As written, the UTPCPL imbues concurrent authority to both district attorneys and the attorney general to file such litigation on behalf of the Commonwealth of Pennsylvania, but failed to make clear which of those legal entities had the ultimate authority in such matters.
After an initial attempt at bringing the dispute to the Commonwealth Court was ruled as untimely in February 2022, Krasner and Zappala tried again.
But according to Judge Wojcik and his colleagues in the Jan. 26 ruling, the buck literally stops with the state Attorney General.
“When the UTPCPL is examined within its context and history, as well as in conjunction with other constitutional and statutory provisions governing the authority of the Attorney General and district attorneys, the Attorney General has the authority to supersede the DAs’ UTPCPL claims. The Attorney General, as the statewide elected official, has the duty to serve the interests of the public at large, whereas the district attorney serves the interests of his/her local constituents. Although those interests may often align, where, as here, a conflict in representation arises, the Attorney General has authority to control the litigation as the ‘chief law officer.’ That control permits the Attorney General to settle such claims when he determines it is in the best interest of the Commonwealth to do so,” Wojcik said.
“The concurrent authority of the district attorneys to bring UTPCPL actions cannot be interpreted in such a way that undermines the Attorney General’s authority to resolve such matters on behalf of the Commonwealth for the common benefit. To conclude otherwise would subvert the office of Attorney General to a position inferior to that of the district attorneys, which runs afoul of both the Pennsylvania Constitution and the Commonwealth Attorneys Act.”
Commonwealth Court of Pennsylvania case 283 M.D. 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com