Cities v. Big Pharma: Municipal Affirmative Litigation & the Opioid Crisis

Countless examples are available all around the country, from localities of all shapes and sizes. Westport, Massachusetts, sued toxin manufacturers that had contaminated the soil that public schools were built on.²¹ San Francisco, California, has gone after a credit card company that engaged in unfair business practices.²² And the Native Village of Kivalina, Alaska — one of the smallest villages in the country — has taken on one of the largest corporations in the world for its role in global warming.²³

Other than the fact that these suits are all brought by municipalities, they share little else in common. They are predicated on a variety of legal theories. Relief sought ranges from money damages to injunctions to declaratory judgments. Perhaps most of all, results vary wildly. Many suits end up dismissed or dropped, but some produce multimillion or even billion-dollar settlements or judgments or bring about widespread change in an industry.

This Article zeroes in the latest subject of widespread municipal affirmative litigation: the opioid crisis. in what has been called “the worst drug epidemic in U.S. history,”²⁴ lives have been lost, communities have been destroyed, and drug companies have been enriched. This was not the product of chance or vagary. it was, in large measure, the result of a coordinated campaign by pharmaceutical companies to convince doctors to prescribe more painkillers, patients to consume more drugs, and regulators to slacken enforcement.

This Article proceeds in four parts. Part I gives an overview of municipal affirmative litigation. It sketches not only its rise to relative prominence, but also examines some of biggest topics of this litigation in the past: tobacco, firearms, discriminatory lending, and environmental degradation. It then explains how cities have pursued affirmative lawsuits by collaborating with the private sector and lists some of the potential benefits. Part II chronicles the opioid crisis in the United States and the pharmaceutical industry’s role in it. It shows that prescription painkillers went from being viewed with deep skepticism to being dispensed with reckless abandon, with terrible consequences for the nation. It documents how the industry peddled junk science and enabled black markets to flourish. Part III looks at the current wave of municipal lawsuits filed against the opioid industry. It considers the most common roadblocks that could prevent access to the courtroom and what strategies might surmount them. It also looks at the most common theories that cities have advanced, analogies that might predict their success, and how courts have dealt with them in the few municipal cases that have produced rulings. Part IV briefly concludes.

I.  Municipal Affirmative Litigation

Despite the fancy name, municipal affirmative litigation proceeds like an ordinary lawsuit. Los Angeles’ suit against Wells Fargo is an example. The bank opened and manipulated customer accounts in fraudulent ways, such as opening accounts under their names without permission.²⁵ Los Angeles sued in state court, arguing this violated the state consumer protection law, and the bank removed the case to federal court.²⁶ The city sought restitution, civil penalties, and injunctive relief.²⁷ The federal district court remanded the case back to state court,²⁸ and, about a year later, the parties settled.²⁹ Other than the fact that the city was suing on behalf of all residents harmed by the scheme, it looks like a typical consumer protection action.

A.  A Brief History of Municipal Affirmative Litigation

Although the number of cities engaged in affirmative litigation has risen in recent years, the practice is not new. Indeed, it is nearly as old as the country. New York City probably takes the cake for oldest municipal affirmative litigation case in 1829, when the city sued a shipowner for failure to follow regulations.³⁰ It was not until 1982 that the Big Apple established an Affirmative Litigation Division, however.³¹ Since that time, it has been one of the busiest cities in the country in bringing suits.³²

The first major success story was tobacco litigation. The 1998 settlement required big tobacco to pay out $200 billion over the course of twenty-five years.³³ Had the entire sum been paid out at once, it would have roughly equaled the economic output of Austria.³⁴Although states led the charge, three cities — New York City, San Francisco, Los Angeles — and two counties — Cook and Erie of New York State — joined in and were included in the settlement.³⁵

Success against the big tobacco inspired similar litigation against the gun industry.³⁶ In October 1998 — only a few weeks before the tobacco master settlement was signed and sealed — New Orleans became the first city to sue the firearms industry.³⁷ Within two weeks, Chicago followed suit, and, within a year, thirty cities around the country did as well.³⁸ Plaintiffs argued a panoply of legal theories³⁹ and sought costs for the public expenses of gun violence.⁴⁰

If tobacco litigation ended up being tremendously successful, gun litigation was the opposite. One observer wrote: “By all accounts, the gun litigation has been an utter failure. Plaintiffs claim no significant courtroom victories and appear pleasantly surprised when their case survives a motion to dismiss.”⁴¹ Most of the cases were struck down by the courts, and a case brought by Gary, Indiana, died an inglorious death at the hands of the state legislature and then-Governor Mike Pence, who retroactively terminated the lawsuit.⁴² Philadelphia did not even get into the courthouse door, as public opposition to the suit killed it in the cradle.⁴³ Amid the wave of lawsuits, Congress passed the Protection of Lawful Commerce in Arms Act in 2005, which made it harder to sue the firearm industry.⁴⁴

Lawsuits against the tobacco and firearm industries are examples where a great number of governmental entities sued at roughly the same time, alleged roughly the same harm, and sought roughly the same relief. The next industry to face such tightly clustered municipal litigation was banking in the wake of the Great Recession.⁴⁵

The first lawsuit was filed in January 2008,⁴⁶ only a few weeks after the bottom of the economy fell out, and many followed. The suits argued that banks racially discriminated when they targeted minority communities for bad loans, often in violation of the Fair Housing Act. Charges have included redlining⁴⁷ (denying loans to minority homebuyers), reverse redlining⁴⁸ (targeting minorities for predatory loans), and racial steering⁴⁹ (directing homebuyers towards different neighborhoods based on race).

Cities argued that these banking practices contributed to the foreclosure crisis, which directly hurt them by reducing property values, and thus tax receipts. Studies show that foreclosures reduce property values for the whole neighborhood.⁵⁰ A Chicago study found that a foreclosure creates an “explosion,” negatively impacting all the homes within one-eighth of a mile.⁵¹ The total reduction in property values caused by each foreclosure is estimated to be between $159,000 and $371,000, with a cost of $598 million to $1.39 billion across the entire city.⁵² Other studies estimated total damages of $356 billion to $1.2 trillion for the entire nation.⁵³ Apart from the direct economic effects, derelict homes pose many environmental and health threats, from shattered glass, to dirty pools of water, to soil contamination.⁵⁴

Great Recession lawsuits tended to focus on reverse redlining and have been moderately successful.⁵⁵ Baltimore and Memphis both were part of settlements that reached into the hundreds of millions of dollars.⁵⁶ They certainly fared much better than the gun suits.

In addition to these sorts of highly clustered litigation topics, there are a few other areas worth noting. Litigation targeting polluters — whether they befoul the air, water, or earth — seems to be growing in popularity and does not appear to have been prompted by any one catalyst. Suits going after giant corporations for harm caused by global warming writ-large have proven largely unsuccessful.⁵⁷ But results have been better for suits targeting companies that dump toxic waste into water or soil.⁵⁸ And cities have launched a fair number of cases against asbestos⁵⁹ and lead paint⁶⁰ manufacturers, cases related to consumer protection issues,⁶¹ and cases alleging immigration violations,⁶² to name but a few.

To this day, more and more localities are embracing affirmative litigation. The city solicitor of Providence, Rhode Island, founded an affirmative litigation unit in 2012 to “benefit and protect the people of Providence and Rhode Island.”⁶³ As recently as February 2017, Washington, D.C., announced that it would create a “public advocacy division” to preserve affordable housing and to protect residents from wage theft, antitrust violations, and non-resident tuition fraud.⁶⁴ If litigation related to the opioid crisis proves successful, the ranks of affirmative city law departments will likely grow.

B. Collaboration with the Private Sector

Lack of resources is a key roadblock for municipal suits. A typical city law department has a large array of issues that it must contend with.⁶⁵ Citizens may sue for all manner of torts arising from injuries occurring on city property. If the city receives federal funding, it needs to ensure it is properly complying with the term of the grant. The mayor may want to install new surveillance technology and needs advice on Fourth Amendment implications. And, as an employer, cities must deal with labor issues ranging from claims of discrimination to negotiations with labor unions. Amid the chaos, it can be difficult to scrape together the funding and personnel to lead an affirmative litigation unit. Compounding this problem, many city attorneys do not even see themselves as public interest attorneys.⁶⁶ To the contrary, a search of the University of Michigan’s Civil Rights Litigation Clearinghouse reveals that cities are ordinarily the defendant in civil rights suits.⁶⁷

Large cities, such as New York or Los Angeles, may have enough resources to put together robust affirmative litigation teams, but what is a small town with only a few overworked attorneys to do? The most common solution has been to partner with plaintiff firms. The firm can front the costs and provide and handle much of the work. These sorts of agreements were pioneered by municipalities pursuing litigation against the tobacco industry, and they have since become commonplace.⁶⁸ Plaintiff attorneys pushed cities to sue the gun industry and represented them on a contingency fee basis.⁶⁹

Collaboration with plaintiff firms has been a favored tactic in the current round of opioid lawsuits. In 2017, a group of plaintiff attorneys went through West Virginia giving presentations to localities about representing them in lawsuits.⁷⁰ One need only glance at the attorney signature page of most affirmative litigation complaints to see that the city has received outside legal assistance.

Agreements like these have proven highly controversial. Critics claim that private attorneys will work to maximize private profit, which is at odds with the government’s obligation to maximize public welfare.⁷¹ There are also fears of conflicts of interest arising and governments playing favorites in selecting which firms to partner with.⁷² Controversial as they might be, courts and legislatures have repeatedly deemed these partnerships lawful.⁷³

The Rhode Island Supreme Court in State v. Lead Industries⁷⁴ has given an ethical roadmap of sorts for contingency agreements. In that case, the state attorney general entered into an agreement with a plaintiff firm to assist with litigation in non-criminal matters. The Court emphasized the public office had to maintain “absolute and total control over all critical decision-making” in the case.⁷⁵ This means that it must have “complete control over the course and con- duct of the case,” “veto power over any decisions made by outside counsel,” and “a senior member of the Attorney General’s staff . . . personally involved in all stages of the litigation.”⁷⁶ Outside firms, on the other hand, serve a “subordinate role.”⁷⁷

These ethical rules help ensure the government’s duty to litigate in the public interest will not be overpowered by lucre. States around the country have looked to the rules articulated by the courts.⁷⁸ In Georgia, the attorney general issued rules governing private partnerships. They include posting details of every contingency contract online and regular updates about them.⁷⁹ Attorneys general in New Mexico and Mississippi have put in place safeguards as well.⁸⁰

As an alternative to getting attorneys through contingency fee contracts, Santa Clara County has established an impact litigation fellowship.⁸¹ The program hires about two fellows at a time to serve out one- or two-year terms.⁸² Fellows not only litigate suits against defendants ranging from lead paint companies to opioid companies that mislead the public, but also draft amicus briefs and work on policy initiatives.⁸³ Some municipalities partner with law schools instead of law firms. Santa Clara County works with Stanford Law School,⁸⁴ and Yale Law School has established a clinic to work with the San Francisco City Attorney’s Office to “conceive, develop, and litigate” cases.⁸⁵ Since these techniques do not rely on for-profit law firms, they rebut some criticisms that the suits are all about the money.

C.  Benefits of Municipal Affirmative Litigation

Whatever the topic, there are many potential benefits from affirmative litigation by cities. Naturally, the cities themselves receive a windfall if a suit produces a handsome settlement or verdict, injunctions will prevent defendants from continuing harmful conduct, and city residents will enjoy better health, cleaner environments, or fairer markets as the case may be. But they also serve the public in less obvious ways.

First, they can herald important issues. Federal and state agencies, private law and policy organizations, and the media all failed to sound the alarm on the growing financial crisis.⁸⁶ Would it have been different if cities were diligently policing the banks? Similarly, the federal government failed to prevent the opioid crisis from spiraling out of control. Cities can help. For example, a recent spate of lawsuits against painkiller manufacturers can help highlight the role corporate actions played in the opioid epidemic, countering the narrative that the fault lies entirely with addicted persons.

Second, they can help make important information public. Tobacco litigation revealed damning information about how the industry manipulated the addictive properties of cigarettes.⁸⁷ The master tobacco settlement was over $200 billion,⁸⁸ but bringing information into the hands of researchers, policymakers, and the public has a value all its own.

And third, it can spur companies to improve. For the mere threat of a lawsuit can be enough to get the ultimate relief sought. Artificial breast implants once posed health risks, and this was known by manufacturers.⁸⁹ Once lawsuits were filed, the companies started investing in safety research.⁹⁰ in the context of the pharmaceutical industry, companies may start taking their obligations to prevent drug abuse seriously.

II.    The Opioid Epidemic

Opium has been with us for 6,000 years⁹¹ — roughly as long as cities have existed. Neolithic ruins document its cultivation, and Homer called it a “wondrous substance” whose consumers “did not shed a tear all day long, even if their mother or father had died, even if a brother or beloved son was killed before their own eyes.”⁹² It operates by blocking electrical and chemical signals in the nerves, which blunts pain.⁹³ Over time, however, nerve cells become desensitized to them,⁹⁴ meaning users must ingest ever greater amounts to achieve the same effects. Unfortunately, the drug also affects parts of the brain that regulate heart rate, sleeping, and breathing.⁹⁵ Overdoses can cut off the oxygen supply to the brain, resulting in comas, brain damage, and death.⁹⁶

Narcotics have been present in the United States since the beginning and part of the culture ever since. Thomas Jefferson planted poppy at Monticello,⁹⁷ while John Adams gossiped that Alexander Hamilton owed his eloquence to a “bit of opium in his mouth.”⁹⁸ Prescription overdoses killed Marilyn Monroe, Bruce Lee, and Elvis Presley.⁹⁹ More recently, Kanye West admitted he struggled with painkillers.¹⁰⁰

Opioids had their breakout moment after the Civil War when morphine was freely dispensed to sick and wounded soldiers.¹⁰¹ After the tumult of the battlefield faded, addiction persisted. Dependency became so widespread it became known as “the soldier’s disease.”¹⁰² It was America’s first drug crisis.

Civilians also had easy access since opioids were available in drug stores without a prescription.¹⁰³ Surges in drug use were driven by doctors who had little training in narcotics.¹⁰⁴ By the early 1900s, they were in everything from snake oil elixirs to baby formula.¹⁰⁵ Medicinal cookbooks listed opium as a common ingredient and it was touted as a cure to everything from migraines to insomnia to dysentery.¹⁰⁶

Red flags were present more than a century ago. in 1889, the New England Journal of Medicine argued that opiates were dangerous and posed a risk of addiction.¹⁰⁷ Around that time, medical students were being warned about the dangers of narcotics.¹⁰⁸ Medical professionals eventually concluded that the drug should be used sparingly, and opium consumption fell correspondingly.¹⁰⁹ Bear in mind, this was the same medical profession that, at around the same period, still told its students to bring their own cadavers to class for dissection practice.¹¹⁰ The fact that opioids were seen as dangerous even by the lax standards of the day speaks volumes.

This reticence endured as accepted wisdom for a century. As late as 1985, the World Health Organization still recommended using opioids for long-term cancer treatment, not short-term pain.¹¹¹ The consensus was, in short, that painkillers were potentially dangerous and should be prescribed with caution.

But if society’s reliance on painkillers had waned, the underlying pain had not. Something on the order of 100 million adults live with chronic pain — more than two-fifths of the population.¹¹² Pain can be so intense that it drives some to suicide and so pervasive that it shrinks the brains and fries the nervous system, meaning that nerves no longer need outside stimuli to trigger pain.¹¹³ Most would look at these facts and see a tragedy. Drug companies saw dollar signs.

A.  Drug Companies Directly Contributed to the Opioid Epidemic Through Misleading Marketing and Flouting the Law

Given the breadth and depth of the suffering, anyone selling an easy fix for pain would be able to reap an enormous windfall. Drug companies approached the task with gusto. First, the hearts and minds of the medical community would need to be won over. It simply would not do for the bottom line if the only customers were long-term cancer patients. Liberalizing opioid prescriptions was therefore necessary for the industry.

One of the biggest players was Purdue Pharma. Its website touts its “strong track record” fighting the opioid crisis,¹¹⁴ but perhaps no other company had a bigger role in triggering it. In the late 1980s, Purdue’s patent was running out on its old painkiller, MS Contin, which was already the biggest seller in the company’s history.¹¹⁵ It was working on a new drug — OxyContin — that was far more potent than previous painkillers.¹¹⁶ According to Purdue, it would grant patients continuous pain relief for twelve hours thanks to its controlled release formula, allowing patients to adhere to their prescription schedule and doctors to ramp up dosage more easily.¹¹⁷ It would become the most abused drug in America.

Internal documents show that Purdue knew it would face stiff resistance from doctors who had been inculcated to the idea that overreliance on painkillers was dangerous.¹¹⁸ So it set to work. In the 1990s, there was a push to increase treatment for pain and adopt it as the “fifth vital sign” (along with body temperature, pulse, respiration, and blood pressure).¹¹⁹ This was aided and abetted by official-sounding groups like the American Pain Society, American Pain Foundation, and the Joint Commission on Accreditation of Healthcare Organizations.¹²⁰ All of these groups had ties to the drug industry¹²¹ — and drug industry money. The American Pain Foundation, for example, claimed to be a patient advocacy group, but received ninety percent of its funding from Purdue.¹²² When the U.S. Senate Finance Committee sent the American Pain Foundation a letter inquiring about its industry ties, the group shut down rather than respond.¹²³

These outlets peddled or seized upon junk science. A hundred-word letter to the editor in the New England Journal of Medicine reported that less than one percent of opioid patients became addicted.¹²⁴ A study published by the journal Pain concluded that narcotics could be “safely and effectively prescribed to selected patients with relatively little risk of producing” behaviors associated with opioid abuse.¹²⁵ The author of that study, Russell Portenoy, headed the same American Pain Society awash in big pharma money.¹²⁶ Industry consultants also contributed to stories about how pain was underreported,¹²⁷ and pharma reps told doctors that it was okay to treat chronic pain with opioids because there was no real cure and overdoses were “clinically impossible.”¹²⁸ Against this backdrop, the Food and Drug Administration (FDA) approved OxyContin for moderate to severe pain lasting more than a few days in 1995.¹²⁹

Claims of opioids’ effectiveness and lack of addictiveness turned out to be wildly exaggerated or false. The FDA officer who reviewed OxyContin’s application found it lacked a significant advantage over competing drugs, and randomized trials and studies backed this up.¹³⁰ And the claim that overdoses and addiction were virtually impossible? Two million people are addicted to opioids,¹³¹ and three Purdue executives later pled guilty to lying about the risks of addiction.¹³²

Pseudoscience was only the vanguard of the assault, however. The cavalry was a nationwide schmooze campaign. The battle plan had three targets: physicians, patients, and politicians.

Purdue alone spent $200 million recruiting and training physicians, pharmacists, and nurses to tout the effectiveness of the drug.¹³³ Sophisticated marketing data was used to target physicians with the highest number of patients with chronic pain.¹³⁴ Doctors were treated to steak dinners by pharma reps¹³⁵ or shuttled off to posh conferences.¹³⁶ Gifts rained down like autumn leaves. Thirty-four thousand doctors were given OxyContin branded fishing hats, plush toys, coffee mugs, music CDs, and luggage tags.¹³⁷ Evidence shows that the more gifts doctors receive from a pharmaceutical company, the more of that company’s drugs they prescribe.¹³⁸

Many doctors were ill-equipped to rebuff these suitors. Medical school curriculums place little to no emphasis on pain treatment,¹³⁹ and doctors do not like telling patients “no” when they complain of pain. During the height of the marketing blitzkrieg, nearly half of doctors prescribing OxyContin were primary care physicians untrained in pain, as opposed to specialists.¹⁴⁰ Even the average veterinarian student received more schooling on pain than primary care physicians.¹⁴¹ Of course, the free stuff did not hurt either.

If doctors controlled the supply of pills, patients drove demand. Drug companies worked to appeal to them as well. Cephalon produced innocent-looking, raspberry-flavored lollipops called Actiq that contained a drug eighty times more potent than morphine.¹⁴² Purdue distributed 34,000 coupons for free OxyContin and, between 1996 and 2005, increased its direct consumer advertising five-fold.¹⁴³ Consumers exposed to these ads were twice as likely to request the advertised drug from their doctor.¹⁴⁴

Completing the triangle were politicians who regulated opioids. Big pharma has spent $1.6 million on state attorneys general races.¹⁴⁵ Lobbyists fought to block a New Mexico law designed to limit the use of opioids.¹⁴⁶ An industry-backed nonprofit hired a PR firm to stop Washington state’s medical board from urging doctors to reduce opioid prescriptions.¹⁴⁷ Congress was pressured to pass a law that reduced Drug Enforcement Agency’s (DEA) power to go after drug companies, and the industry hired DEA employees to help defend against enforcement actions.¹⁴⁸ Collectively, the industry had 1,350 lobbyists and spent $880 million between 2005 and 2016¹⁴⁹ and hired 42 employees from the DEA to blunt enforcement efforts.¹⁵⁰

Most of this activity was unethical. Much of it was unlawful. The Controlled Substances Act makes it illegal to manufacture, distribute, or dispense “controlled” substances, or those defined in the Act.¹⁵¹ Various components of opioids are defined by the Act as controlled substances.¹⁵² Congress passed the Act to fight drug abuse and manage the distribution of drugs, but it was particularly concerned with preventing the diversion of drugs from legitimate to illicit channels.¹⁵³ For seemingly legitimate vendors have the easiest opportunity to divert drugs into the black market.¹⁵⁴ Drug vendors must therefore register under the Act¹⁵⁵ and must maintain “effective controls against diversion” of controlled substances.¹⁵⁶ As part of their anti-diversion obligations, drug distributors must detect and report suspicious drug orders, meaning orders of unusual size, frequency, or pattern.¹⁵⁷ The DEA has the power to revoke registration for failure to comply with these rules.¹⁵⁸

The major players cannot plead ignorance on these rules, for they received ample warning. In 2006, the DEA sent a letter to every drug distributor in the country to apprise them of their legal responsibilities. It noted prescription drug abuse was a growing problem, reminded them of the critical role that distributors played in controlling it, and explained their obligations towards preventing it.¹⁵⁹ If the first one was not enough, a second, similar letter was sent the following year.¹⁶⁰

These letters fell on deaf ears. Time and time again, the industry failed to report obvious abusers — or willfully sold to them. McKesson had warehouses in Michigan and Ohio that supplied pharmacies that sold to criminal drug rings.¹⁶¹ Purdue was no better. A Purdue sales manager investigated where OxyContin was ending up and told superiors, “I feel very certain this is an organized drug ring.”¹⁶² The company neither told authorities nor cut off the supply, and more than one million pills ended up in the hands of criminals.¹⁶³ Indeed, despite having more than a decade’s worth of data indicating illegal drug trafficking, it did nothing.¹⁶⁴

Fraudulent pain clinics were set up to disperse pills that were, apparently, not being closely monitored. Clinics could earn as much as $100,000 per day.¹⁶⁵ One doctor prescribed more pills in one week than a typical pharmacy does in a month.¹⁶⁶ Another prescribed half a million pills in half a year.¹⁶⁷ These are all examples of criminal diversions that could have been snuffed out far earlier if the industry had been following its legal obligations.

A federal prosecution gives an intimate portrait of one shady operation.¹⁶⁸ The clinic would not accept appointments. Patients would line up outside, and an office manager coached them on what they needed to say to get a prescription. The doctor would provide a slipshod examination to whole groups at once. Everyone paid cash. They paid double for a prescription that could be refilled, which might be as little as ten days later.

Even with goodness-knows how many black market clinics going unreported, industry titans built up a rap sheet the size of a large-print dictionary. Administrative law judges within the Drug Enforcement Agency (DEA) issued decisions on 117 “registrant actions” — agency lingo for actions to suspend a company’s registration to deal in controlled substances or to explain a suspected rule violation — against drug companies between 2008 and 2012.¹⁶⁹ The FDA also cited Purdue for making misleading claims in advertising and on partner websites and sent enforcement letters to competitors Zeneca and Roxane Laboratories.¹⁷⁰

The industry has also tacitly admitted wrongdoing following investigations. A meeting with the United States Attorney for West Virginia prompted Purdue to end its practice of paying out bonuses — some as high as $240,000 — to sales reps who most aggressively recruited doctors.¹⁷¹ In Baltimore, Cardinal settled with the government to resolve allegations that it violated the Controlled Substances Act.¹⁷² The investigation was spearheaded by none other than Rod Rosenstein, then-U.S. Attorney for the District of Maryland. McKesson Corp., the fifth largest public corporation in the country, failed to report hundreds of suspicious drug orders from online pharmacies, which often ended up in the hands of drug rings.¹⁷³ It struck a deal with the DEA and Department of Justice to avoid criminal charges.¹⁷⁴

Fines for industry misconduct were eye-popping. ProPublica has assembled a database on fines paid out by pharmaceutical companies between 2009 and 2014. Companies have paid out over $13 billion in that short time, and roughly $3 billion of that is from painkillers alone.¹⁷⁵ Pfizer takes the cake with a $2.3 billion fine for misbranding a painkiller and promoting it in dosages that the FDA considered dangerously high.¹⁷⁶ At the time, it was the largest criminal fine ever imposed and the largest health care fraud settlement.¹⁷⁷

And it was not just fines being handed out. Federal prosecutors arrested executives and managers for the pharmaceutical company Insys on charges they bribed medical practitioners to prescribe painkillers and defrauded health insurers.¹⁷⁸ Three top executives at Purdue, represented by Rudy Giuliani, pled guilty to criminal charges in 2007.¹⁷⁹

B. The Impact of the Opioid Epidemic

What was the upshot of this multiyear, multibillion-dollar campaign to convince doctors, patients, and governments that opioids were safe? Gangbuster profits. Opioid drug sales overall quadrupled between 1999 and 2014.¹⁸⁰ Purdue’s OxyContin sales were $1.5 billion by 2002, eight times projections. The drug was the company’s best seller, accounting for eighty percent of all sales.¹⁸¹ By 2009, sales were $3 billion,¹⁸² and Purdue has earned $35 billion to date from opioids.¹⁸³ McKesson’s CEO alone earned $100 million annually.¹⁸⁴ Totaled up, the industry earned $11 billion in revenue from prescription painkillers in 2014.¹⁸⁵ Such was the success that the record-shattering fines became nothing more than costs of doing business.

Ironically, these riches were being extracted from some of the poorest regions of America. One lawsuit likens the companies to sharks that “descended upon Appalachia for the sole purpose of profiting off of the prescription drug-fueled feeding frenzy.”¹⁸⁶ States such as Maine, West Virginia, and Kentucky were being prescribed oxycodone at rates five to six times higher than the rest of the country.¹⁸⁷ McKesson sent 780 million pills over a six-year period to West Virginia, or 433 pills for every man, woman, and child.¹⁸⁸ Eleven million doses ended up in Mingo County, West Virginia, population 25,000, and one pharmacy received 258,000 pills in a single month.¹⁸⁹ Nationwide, enough prescription painkillers were prescribed in 2010 to “medicate every American adult around-the-clock for a month” according to the Centers for Disease Control (CDC).¹⁹⁰

This deluge made OxyContin the most popular drug in the country. But it was also the most abused drug in the country.¹⁹¹ Nearly 200,000 people have died from opioid overdoses since 1999,¹⁹² more than the combined American military deaths of every conflict since the Korean War.¹⁹³ For every one death, there are ten admissions to a drug abuse treatment center and thirty-two emergency room visits related to the use of prescription drugs.¹⁹⁴

Entire communities have been devastated. Opioid treatment clinics sprung up like mushrooms in West Virginia.¹⁹⁵ Its residents came to know well the sound of ambulance sirens.¹⁹⁶ In some counties in Kentucky, half of all children live in a home without their parents, largely due to prescription drug abuse.¹⁹⁷ Even drug misusers who live may be unable to pass a drug test, precluding them from employment as factory workers, drivers, or even McDonald’s managers.¹⁹⁸ That might explain why studies show patients who receive narcotics for chronic pain are less likely to recover functionality or go back to work.¹⁹⁹ As these facts make plain, the profits from opioids were great, but the costs were far greater.

III.   Municipal Opioid Lawsuits

After years of bearing the brunt of the opioid epidemic, more and more cities have taken their grievances to court. The last few years have seen a flurry of activity in combating the opioid crisis. Chicago was the first to sue in 2014.²⁰⁰ By October 2017, ten more cities jumped onboard.²⁰¹ Today, dozens of cities and counties, from Washington to West Virginia, have sued. So many, in fact, that the United States Judicial Panel on Multidistrict Litigation consolidated forty-six separate suits into the Northern District of Ohio.²⁰²

Every case is different. But in examining numerous municipal complaints, similarities emerge. Almost all of them provide an overview of the same topics covered in Part II of this Article. They document how opioids were once used sparingly, but, through an extensive and coordinated campaign, the industry shifted public and expert opinion to enhance their own profits at the expense of the communities they savaged.

Painting the industry in the bad light is easy. The complaints have countless examples to draw upon. Whether it is the pill mills that companies turned a blind eye to, the exaggerated claims that the prescription opioids were addiction-resistant, or the criminal fines and arrests, the industry acted irresponsibly.

Winning is harder. Plenty of cities made similar claims against polluters, gun manufacturers, or banks, and ultimately lost. There are a few hurdles that virtually every city will need to clear.

A.  Common Obstacles to Municipal Lawsuits

1.  Standing

Sir William Blackstone presaged the difficulties of municipal affirmative litigation hundreds of years ago. Writing on public harms, he stated “because the damage being common to all the king’s subjects, no one can assign his particular proportion of it; or, he could, it would be extremely hard. . . .  For this reason, no person, natural or corporate, can have an action of a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom.” In other words, because the harm is common, no single corporation (such as a city) has standing to sue — only a state or federal government.

The United States can claim an injury when its laws are violated.²⁰³ States too have the considerable benefit of Parens Patriae authority. States also have a sovereign interest in seeing its laws obeyed and enforced and a quasi-sovereign interest in the health, safety, and welfare of their citizens.²⁰⁴ The U.S. Supreme Court has said that states are entitled to “special solicitude” in standing analysis.²⁰⁵ This gives them more latitude to bring suits than private citizens.

Cities, being mere “creatures of the state,” are not so lucky. They have to tough it out like ordinary plaintiffs. To establish standing in federal court, they must show (1) a particularized injury in fact, (2) causation, or that that plaintiffs’ harms are fairly traceable to the defendants’ actions, and (3) that the plaintiff’s injury will be remedied by the relief sought, known as redressability.²⁰⁶

Due to the level of complexity of many affirmative litigation suits, courts may require a hearing to test the threshold sufficiency of the city’s standing claim. The goal is not to definitively decide standing, but to see if the city’s standing claims are strong enough to justify the cost of full-fledged merits discovery.²⁰⁷

Because most municipal opioid suits have been filed in federal court, it makes sense to analyze each of the three prongs applicable to all suits. Each one of these prongs can prove a formidable challenge for a city. State courts may have laxer requirements though.²⁰⁸

2.  Injury

Although the opioid epidemic has harmed many, cities still need to explain how they were actually hurt. Examples from past affirmative litigation campaigns illustrate the point. Kansas City, Missouri, sued an apartment complex because it had a discriminatory curfew policy that only applied to minors, alleging a violation of the Fair Housing Act.²⁰⁹ The court dismissed the suit because it could not show injury even though the Act may have been violated.²¹⁰ All the city alleged was a harm to the residents of the complex, not to itself.

But as long as a city frames a problem in terms of its own corporate interests, as opposed to suing on behalf of residents’ harms, courts will typically allow it, since a “significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services.”²¹¹ Aside from property values, other corporate interests could include increased spending on public safety, health care, or pension benefits, or loss in productivity from its labor force.

Needless to say, no city of any size has been left untouched by the opioid epidemic. But in court pleadings, municipal plaintiffs do need to say this and offer evidence in support. A complaint requires more than mere “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “an unadorned, the-defendant-unlawfully-harmed-me accusation.”²¹²

Be that as it may, it is hard to calculate the precise extent of the harm for such a far-reaching problem. The CDC estimates that the opioid epidemic cost the country $78.5 billion in 2013, with a quarter being born by taxpayers in the form of increased spending on health care, criminal justice, and safety.²¹³ The White House’s Council of Economic Advisers’ 2015 estimate is much higher: $504 billion, or nearly three percent of GDP.²¹⁴ But these numbers tell us nothing about whether and to what extent a particular city has been harmed.

In a 2017 complaint, Everett, Washington, for example, exhaustively documented how the pharmaceutical industry is complicit in the opioid crisis writ large, but had comparatively little to link the defendants’ misdeeds to Everett. It said that “numerous individuals within Everett” became addicted, which resulted in “many deaths in Everett.”²¹⁵ It added that OxyContin was “a factor in a significant number of crimes committed in Everett”²¹⁶ and that the city has spent “significant money” on law enforcement, medical, and criminal justice systems.²¹⁷

The court in Everett’s suit ultimately found that it stated a cognizable injury.²¹⁸ Maybe more details will emerge through discovery, and, at the motion to dismiss stage, courts are supposed to presume “that general allegations embrace those specific facts that are necessary to support the claim.”²¹⁹ But it is easy to imagine a court finding such vague claims inadequate.

For example, in Cardinal Health, Inc. v. Holder, the drug-maker Cardinal sued the Drug Enforcement Agency after it issued an immediate suspension order against one of its facilities.²²⁰ Cardinal sought an injunction and claimed it was suffering economic harm from the suspension order, but the court took the company to task for lack of specificity. The court noted the company only claimed “some customers” left, gave no estimates of total lost sales besides that it would require “substantial effort and resources” to reroute shipments from the shuttered facility.²²¹ These claims were called “too vague and speculative” to support an injunction. Although the posture of that case may have been different, drug companies could raise these same sorts of claims against municipal plaintiffs who do not dot every i and cross every t.

A few cities provided a stronger argument for harm. Chicago, despite being the first to file, gave one of the most detailed explanations of injury. The city has a self-insured health care plan for its employees and a workers’ compensation program.²²² Because of the drug companies’ marketing campaign encouraged more people to take painkillers, the number of insurance claims for opioid-based treatment increased. The city, then unaware of the true risks and benefits of opioids, paid for those claims.²²³ Because these were the city’s own programs, it had exact data: $13.9 million spent on over 320,000 opioid claims through its insurance program and $1.98 million spent on worker compensation claims.²²⁴ Another $2.4 million was spent on addiction treatment, and city employees missed 835 days of work for treatment.²²⁵ Tacoma, Washington, and Erie County, New York, employed similar tactics.²²⁶

The genius of this technique is that cities have ready access to costs incurred by their own programs, and it should be highly foreseeable that drug companies’ marketing campaigns would increase the number of legitimate opioid claims processed by the city’s health care system. indeed, that was the whole point of the marketing campaign.

What of cities that do not have their own health care plans? For one, they can cite mortality and morbidity data, which is tragically abundant. Indianapolis chronicled the exact numbers of patients addicted to opioids, parental terminations connected to opioids, and infants born with neonatal abstinence syndrome (NAS) — chemical dependency on opioids — and opioid-linked deaths, all particularized to Marion County where the city sits.²²⁷ Wayne County, Michigan, explained that opioid-related deaths rose by over thirty percent between 2013 and 2015, from about 1,500 to 2,000.²²⁸ in Tacoma, emergency calls, which include opioid overdoses, shot up forty percent between 2012 and 2016, and opioid-arrests went up by fifty percent around the same time.²²⁹ Huntington, West Virginia, suffered twenty-six heroin overdoses in one four-hour stretch.²³⁰ Cabell County, West Virginia, experienced a drug poisoning rate between 2.11 and 3.55 times higher than the national average.²³¹

Cities can also calculate the amount they have spent responding to the opioid crisis. Indianapolis approved $1.1 billion in new funding to respond to the crisis, after incurring over $18 million in estimated costs to treat infants with NAS.²³² Seattle accounted for the prices for drug treatment and policing and tailored it to its county or the city itself rather than speaking in generalities. Each administration of an antidote to a person overdosing on heroin can cost a city

$2,000, and Seattle had to administer antidotes 140 times in a three- month span for a price tag of $280,000 — plus many thousands more on training, treatment clinics, and needle exchanges.²³³ And it spent $800,000 to clear waste from dozens of homeless encampments that all contained hypodermic needles.²³⁴ Providing dollar figures such as these has been enough for cities to stave off motions to dismiss in the past.²³⁵ Other examples might include increased spending on child support services, medical examiners, jails, courtrooms, and coroner bills.²³⁶

B. Causation

Causation — the second element of standing analysis — requires plaintiffs to show that their harms are “fairly traceable” to the defendants’ actions. Because affirmative litigation suits are often initiated in reaction to societal harms, showing a legal nexus can prove difficult. Even if drug companies were indisputably misbranding opioids and peddling them recklessly, unscrupulous doctors prescribed many pills, many patients misused them, and some probably used them along with other drugs.

Take the case of A.F. McCauley, a seventy-year-old coal miner from Virginia.²³⁷ He sustained a back injury while working and started using OxyContin to cope with the pain. After years of treatment, the effect of the pills began to dull, so he went to multiple doctors for medication. He started to consume more and more pills and eventually resorted to buying pills from friends. Around this time, he started floating in and out of drug treatment programs. He sued Purdue.

The judge was unmoved. He ruled that proof of the defendant’s tortious conduct and of the plaintiff’s injury were insufficient.²³⁸ McCauley, after all, had used various other types of painkillers, not just OxyContin, and the court found no proximate cause between OxyContin and the injuries sustained.²³⁹

Defendants may also enjoy “strength in numbers” because if everyone is responsible, no one is responsible. Climate change is a prime example. The tiny village of Kivalina failed in its suit against Exxon Mobil for this reason. It had a sympathetic case: through no fault of its own, global warming eroded sea ice that protected the village from winter storms.²⁴⁰ It sued twenty-four fossil fuel companies whose products directly produce carbon dioxide. But the plaintiff’s complaint admitted that the origins of global warming go back for centuries and many other actors have contributed to it.²⁴¹ The court therefore held that it was impossible to show that Exxon’s conduct was the “seed of [their] injury.”²⁴² This is sometimes called the “remoteness doctrine.”²⁴³

Birmingham, Alabama, suffered a similar fate when it tried to go after big banks for targeting minorities for subprime mortgages that resulted in mass foreclosures.²⁴⁴ Although the court agreed that the pled harms — reduced property values and tax collection, and increased spending on public safety and blight reduction — came from discriminatory lending, there was no legal causation.²⁴⁵ Even if the defendant banks did offer subprime mortgages, the court reasoned, there was no way to disentangle other factors that led to default, such as unemployment, health problems, and so forth.²⁴⁶ At least in the context of suits under the Fair Housing Act, the U.S. Supreme Court has made causation even harder. it recently decided that it was not enough to show “foreseeability” to satisfy causation, but also “some direct relation between the injury asserted and the injurious conduct alleged.”²⁴⁷

On paper, there appears to be a strong case for causation in suits against opioid manufacturers. The sheer numbers are staggering. Nearly 800 million pain pills were shipped to West Virginia in only six years for instance.²⁴⁸ Availability of pills correlates with abuse,²⁴⁹ and a majority of patients who receive long-term opioids end up addicted, even if they have no prior history of abuse.²⁵⁰ Opioids, keep in mind, are dangerous even when used as prescribed.

Yet many drug companies callously disregarded warning signs. For example, an eighty-milligram pill of OxyContin is an extremely large dose. It is meant for patients who have built up a tolerance over years, and many doctors can go their entire career without prescribing a dosage that large.²⁵¹ One doctor Purdue was monitoring doled out twenty-six of them in a single day. Purdue did nothing. A company sales manager visited that clinic and found it looked abandoned. Purdue did nothing. Multiple pharmacists complained about the fraud. Purdue did nothing.²⁵²

Still, many similar arguments — highlighting the devastation without connecting the dots — were tried and failed in affirmative litigation efforts of the past. Baltimore listed the tens of thousands of homes that were left vacant after the recession but failed to show that defendant Wells Fargo was responsible for anything more than a trifling amount of the city’s vacant housing stock, and so standing was absent.²⁵³ And this was after it had survived a preliminary hearing that determined it had a plausible argument for standing.²⁵⁴

Birmingham also had its suit thrown out for lack of standing after it alleged that the defendant bank defrauded homebuyers, but failed to explain why the bank was responsible when the homebuyer ultimately defaulted, as opposed, say, to the homebuyer’s fiscal irresponsibility or general economic conditions.²⁵⁵ Ideally, then, the harms wrought by the defendants should be connected to the particular town that is suing.

What cities have innovated to overcome the causation hurdle? Once again, the Windy City is a model. Perhaps this is because it was initially spurned by the court. In May 2015, Chicago had two of its claims thrown out because it failed to allege with particularity that the opioid prescriptions it paid for were written by doctors influenced by defendants’ misrepresentations.²⁵⁶ But in its second amended complaint, filed in August 2015, its claims were well-corroborated.

The city interviewed local doctors who reported that they were persuaded by industry marketing, research, and representatives.²⁵⁷ Hard numbers backed up these claims. For every ten percent increase in promotional spending on opioids, the city’s health insurance and workers’ comp plans increased opioid prescriptions by five percent.²⁵⁸

Tacoma, Washington, also self-insures. Whenever one of its employees visits a doctor or fills a prescription, the city pays a substantial portion of the cost.²⁵⁹ It spent over $1 million on opioids through its internal insurance plan.²⁶⁰ Some of these pills came from the defendants, and some pills were used to treat chronic, non-cancer pain, which only became de rigueur as a result of industry lobbying.

Purdue has honed in on this exact issue before. In Ohio’s suit, Purdue argued that causation was not met because the complaint did not “identify a single physician who prescribed one of Purdue’s opioid medications to any patient when it was allegedly medically unnecessary, much less, a physician who did so because of Purdue’s allegedly misleading marketing or promotional materials.”²⁶¹ If Purdue lunges with this point again, Chicago has an easy parry.

Various cities pointed to specific fraudulent pain clinics that should have raised red flags yet prompted no response from the defendants.²⁶² Even repeated enforcement actions against the industry were not enough to get them to turn the spigot of pills off.²⁶³ This is critical because the defendants were required to monitor, prevent, and report suspicious sales activity. A defining feature of fraudulent pain clinics is that they prescribe far more pills than medically necessary. Some, probably most, of the pills were thus going towards an improper use that directly harms the city, such as forcing it to spend money on addiction treatment, law enforcement, or social services.

It may also be useful to emphasize the local impact of the opioid marketing campaigns rather than just talk about the national marketing campaign. Indianapolis and Marion County pointed out that Indiana physicians were paid vast sums to promote painkillers. So much, in fact, that the Hoosier State was in the top quartile for most payments to doctors.²⁶⁴ They relied on a helpful tool from Pro- Publica: Dollars for Docs.²⁶⁵ It is a database that allows anyone to see how many doctors a pharmaceutical company has given money to, and where those doctors practice. This makes showing a local connection simpler.

Some lawsuits get even more specific. Tacoma listed the exact amount paid to local doctors to promote painkillers.²⁶⁶ Wayne and Oakland Counties, of Michigan, did the same.²⁶⁷ And these counties went even further. They explained how the FDA and the U.S. Department of Health and Human Services told one defendant, Janssen, that its marketing materials for the opioid patch Duragesic were false or misleading, such as by claiming that it had “low abuse potential” without good evidence.²⁶⁸ Undeterred, Janssen instructed its Michigan sales reps that Duragesic was abuse resistant and continued doling out money to Michigan doctors.²⁶⁹

Even showing the trend in opioid abuse may provide an inference that the industry is at fault. And even an inference is better than a conclusory statement that the defendants were responsible. in 1999, Detroit experienced five opioid deaths.²⁷⁰ By 2015, it was eighty- five.²⁷¹ This is despite the fact that the Motor City’s population fell by roughly a third during that period.²⁷² The simplest explanation for this is that the precipitous increase was caused by drug companies aggressively pushing their pills into the hands of doctors, convincing the public that they were safe to use, and shipping them out by the truckload.

C.  Redressability

Redressability is the third step of standing analysis. But courts rarely bother to analyze it beyond briefly alluding to its existence.²⁷³ That should not be surprising. For it would be an odd city that could demonstrate a concrete harm and direct culpability by the defendant but fail to ask for anything that might actually remediate the injury.

Canvassing the prayers for relief of the various complaints, there is no reason to think that redressability will be a major stumbling block. Almost all ask for damages to compensate the costs of addiction treatment, medical care for those misusing drugs, and so forth. There is no dispute that damages would redress the injury.

Another common hallmark is a request to enjoin the defendant to comply with their state and federal obligations to maintain effective anti-diversions systems. If one accepts the premise that a city’s harm was caused by the defendant’s abrogation of its anti-diversion duties, such an injunction would redress the city’s injuries.

D.  Standing Strategies from Past Municipal Affirmative Litigation Cases

Lack of standing is perhaps the most formidable obstacle that cities face. It is also the most critical one to overcome. For if a case is dismissed at the pleading stage, it benefits no one except the attorneys who got to bill for it. But if a case can proceed through discovery and later trial, cities can shed light on secretive industry practices or coax a defendant to a settlement.

Because of the paramount importance of overcoming standing, it is worth examining some of the more successful municipal affirmative litigations of the recent past. A few lessons emerge. First, practice makes perfect. initial complaints are often too vague or conclusory, so cities need to repeatedly amend their complaints to satisfy courts that standing is met. When suing in response to societal problems such as public health or racial discrimination, it is easy to make nebulous claims better suited for the court of public opinion than a court of law. It is important to keep the suit grounded in how the plaintiff has been injured and how the defendant was responsible.

Guilty pleas, for instance, may tarnish a company’s reputation, but they do not necessarily establish liability. In a personal suit against Purdue for misbranding OxyContin, the court said that “despite the plaintiff’s contention that the defendants’ guilty pleas for the misbranding of OxyContin amount to an admission of liability in the instant action, I find that there exist genuine issues of material fact pertaining to the causation of the plaintiff’s injuries.”²⁷⁴ A bad corporate citizen is not necessarily a liable corporate citizen.

When Baltimore sued Wells Fargo alleging discrimination, it had this lesson taught by repeated dismissals. The city first sued in January 2008, only to be met by a motion to dismiss challenging standing.²⁷⁵ The judge in the case criticized the first complaint as focusing on “generalized” damages rather than “property specific” damages.²⁷⁶ The city amended its complaint, only to have it dismissed again. But the judge indicated that he would entertain a “claim for specific damages allegedly suffered by the City in regard to specific houses that became vacant allegedly because of Wells Fargo’s lending activities.”²⁷⁷ Finally, the city filed a third amended complaint, which claims the bank not only steered black borrowers towards subprime loans but also that these actions caused the eventual foreclosures; the city also limited the allegations to borrowers who were already owning and occupying their homes.²⁷⁸ The motion to dismiss was denied,²⁷⁹ and, rather than risk letting a jury see the case, Wells Fargo promptly settled.²⁸⁰

It is therefore worth examining Baltimore’s third complaint. That brings us to the next lesson: the importance of backing up claims of harm with cold hard facts. Baltimore did not simply claim that it would have to expend its funds to treat vacant houses, it meticulously documented over one hundred abandoned properties and the costs it incurred for each one.²⁸¹ It also collected a dozen affidavits from residents directly impacted by foreclosure.²⁸² All told, the complaint, not including attachments, was 111 pages.

To prove causation, the complaint was larded with studies and statistics that demonstrated black neighborhoods were disproportionately targeted for subprime loans, and it documented the breadth and depth of housing discrimination throughout the city’s history.²⁸³ While undoubtedly powerful, many of the studies did not implicate the defendant. Supplementing these empirical facts, however, the city provided sworn declarations from two Wells Fargo employees, both of whom explained how the bank targeted black neighborhoods for abusive lending practices.²⁸⁴ Though a relatively small proportion of the complaint in terms of words consumed, the court found it powerful. After Wells Fargo moved to dismiss, the court commented that with the addition of the affidavits of the former employees, the city had “proffered sufficient proof to proceed with its claim for disparate treatment discrimination under the Fair Housing Act.”²⁸⁵

Baltimore gives us one of the best examples, but it is hardly alone. When San Francisco and Santa Clara County teamed up to sue the lead paint industry, they went through four complaints.²⁸⁶ In addition to emphasizing the harms poised to children by lead paint, they explained how the defendants were aware of the dangers, disregarded them, ignored safer alternatives, misled the public, and opposed warnings.²⁸⁷ The suit made it to trial, and, although the courts limited causation to homes built before 1951, the defendants were still ordered to fund lead abatement efforts.²⁸⁸

Los Angeles also used statistics to great effect when it brought JPMorgan Chase to court. The city cited a regression analysis that showed that minority borrowers were far more likely to receive a predatory loan from the defendant, and these predatory loans were far more likely to result in foreclosure.²⁸⁹ It cited additional studies to estimate the exact loss of property values, which translates into lost tax revenue for the city.²⁹⁰ And, like Baltimore, it listed exact addresses of affected properties.²⁹¹ These statistics helped the complaint survive a motion to dismiss.²⁹² The suit was ultimately dropped by stipulation without explanation,²⁹³ but considering the case survived dismissal, it seems most likely that the banks grew nervous and settled.

Memphis and Shelby County provided empirical evidence of racial discrimination in lending, contextualized to the case, and listed fifty specific abandoned properties the defendant foreclosed upon that the city had to expend funds on to service.²⁹⁴ Denying a motion to dismiss, the court showed great interest in the statistics and facts and recounted them at length.²⁹⁵ Summing up, the court noted that the plaintiffs

have not alleged that Wells Fargo lending practices resulted in a host of social and political ills plaguing entire sections of the community. Rather Plaintiffs contend that Defendants have targeted individual property owners with specific lending practices (reverse-redlining), resulting in specific effects (foreclosures and vacancies) at specific properties, which in turn created specific costs (services and tax revenue) for local government.²⁹⁶

After the motion to dismiss was denied, the parties reached a settlement where the city received millions and Wells Fargo earmarked hundreds of millions for increased lending to Memphis residents.²⁹⁷ 

Such thoroughness allowed many cities to prevail where Cleveland failed. Alleging a similar harm against a similar defendant, Deutsche Bank, the first complaint was filed on January 16, 2008.²⁹⁸ From the beginning, the city admitted that the defendant did not originate most of the mortgages it was suing over.²⁹⁹ After that rocky start, it also filed an amended complaint limiting which defendants it could sue.³⁰⁰ Even as amended, its complaint did not identify precisely how the defendants were connected to specific harms the city suffered.³⁰¹ Size is not a perfect proxy for quality, but even its amended complaint was only twenty-four pages long.³⁰² It is thus less surprising that it was dismissed.³⁰³

The ultimate lesson, then, is commonsensical: be precise in explaining how the city was harmed, be precise in explaining how the defendant is responsible for the harm, and be precise in connecting the two.

1.  Statute of Limitations

Statutes of limitation bar claims that are not brought promptly. in general, they begin to run when the injury-producing act occurs. Strictly applied, this rule would stop cities from recovering much because pharmaceutical companies’ allegedly tortious conduct began in the 1990s and continued for years. The first suits against these companies have only been brought recently.

Many cities have argued that they were unaware of the extent or existence of the dangers posed by opioids. This is commonly known as the “discovery rule,” and holds that the statute of limitations clock does not begin ticking until the plaintiff knows or reasonably should have known they were injured and their injury was wrong- fully caused.³⁰⁴ Then-Judge Ruth Bader Ginsburg summarized how courts consider applying the discovery rule by dividing injuries into two buckets: injuries of the sort that can be easily discovered, and those that cannot.³⁰⁵ The discovery rule only applies to the latter bucket. Equity may also freeze the statute of limitations in cases of fraud or concealment.³⁰⁶

These sorts of arguments have been rejected before in opioid litigation, however.³⁰⁷ One private plaintiff argued that the Purdue misbranded OxyContin and misstated its risks.³⁰⁸ Although his use of the medication occurred in 2004, he claimed the statute of limitations should begin to run in 2007, when Purdue executives pled guilty to misbranding. The court said this would rely on the date of the injury, rather than the date the plaintiff discovered the wrongful act and dismissed the suit.³⁰⁹ Other courts have noted that lack of knowledge of the full extent of one’s injuries does not arrest the statute of limitations either.³¹⁰ Defendants may also argue that they have always told doctors that opioids are potentially addictive and highly potent.³¹¹

Municipal plaintiffs have a more sophisticated argument on this point than many individual plaintiffs, which may improve their odds of success. Much of the sales data that would show whether the defendants were violating their obligations to report suspicious orders are stored in the DEA’s database. The database is confidential, so much so that even Freedom of information Act (FOIA) requests have not disclosed it.³¹² Without hard data to contradict them, members of the industry have been able to repeatedly deny any culpability. But plaintiffs can point to public statements by defendants claiming that they possess sterling anti-diversion systems, aggressive moves to blunt enforcement efforts, and material misrepresentations made about the safety of their drugs and the risks of addiction.³¹³ These arguments make a strong case that the defendants concealed the nature and extent of their wrongdoing.

The discovery rule has been applied across a wide array of case types;³¹⁴ medical malpractice cases provide a helpful analogy. Patients could be ignorant of any actionable claim after a doctor injures them, for there are a number of reasons a medical procedure might go wrong besides incompetence of the doctors. The doctor may also have exclusive control over the information necessary to prove a case. For these reasons, the statute of limitations does not begin to run until a patient discovers or reasonably should discover their injury and its cause.³¹⁵

If a single patient is given an allowance of time to determine whether their injuries resulted from malpractice, it logically follows that cities — whose injuries arise from many people taking opioids — should have time to determine that it was the opioid industry, not opioid patients, who caused the harm. And the opioid epidemic is much more complex than a single botched surgery. Plus, the information in the DEA database is under the control of the defendants, another factor courts weigh in determining whether the discovery rule should apply.

In the alternative, cities have argued that the doctrine of continuing tort is an exception to the statute of limitations rule. Under the doctrine, the statute of limitations runs from each successive day that substantial damages continue.³¹⁶ The key is not whether the harm is ongoing — which is true of almost every injury — but whether the defendant is repeatedly causing harm.³¹⁷

Assuming pharmaceutical companies are at fault for the opioid epidemic, it should be straightforward to demonstrate a continuing harm. The opioid epidemic continues to ravage cities. The defendants keep selling drugs to be used to treat non-cancerous, long-term injuries, which is correlated with addiction. They keep insisting that the drugs are safe. And they keep allowing suspicious orders to go through.

In the event that courts enforce statutes of limitation and determine that no exception applies, cities can still seek recovery for recent injuries. Given that the extent of harm caused by the opioid epidemic seems to grow each year, this is no small sum. Statutes of limitation could therefore reduce the recovery, but they probably would not bar it altogether. Nor would they stop the most potent remedy that cities often seek: forward-looking injunctions.

2. Preemption

The Supremacy Clause of the Constitution says that federal laws trump state ones. State law is preempted when a federal law expressly or implicitly overrides state law, when the scope of federal law indicates that Congress intended to occupy the field exclusively, or when it impossible for a private party to comply with both state and federal law.³¹⁸ Courts start with the assumption that federal law does not supersede state law unless Congress clearly expresses its intent to the contrary.³¹⁹ As noted above, there are a web of federal laws and regulations surrounding controlled substances. The Supreme Court, however, has said that while there is a vast array of federal rules, Congress took care to preserve state law and declined to enact an express preemption provision for prescription drugs.³²⁰

One way that preemption could still come into play is to stymie injunctions. Many cities seek injunctions ordering drug companies to change their behavior. This could include demanding that they change the warning labels on their drugs to more accurately apprise consumers of the risks. But the FDA has approved OxyContin, for example, for long-term use in non-cancer patients. And regulations require the FDA to approve the exact language for drug labels.³²¹ Such language thus may normally only be changed through the FDA’s supplemental labeling process.³²² So drug companies could have a state court, under a state-law legal action, ordering them to deviate from the FDA’s approved label. The FDA, after all, has recently rejected a requested label change for opioid-based drugs that would have limited the use of opioids for non-cancer patients.³²³ 

Purdue has argued preemption in the State of Ohio’s suit. There it said that the Buckeye State’s claims are barred because they would “require Purdue to make statements about the safety and efficacy of its medications that are different from what the FDA approved.”³²⁴ But Wyeth v. Levine cuts against this position. There, in response to a similar argument, the Supreme Court said that federal law does “not provide that a drug is misbranded simply because the manufacturer has altered an FDA-approved label,” but rather demands that labels provide “adequate warnings.”³²⁵ And the drug company could not point to a single instance where the FDA brought an enforcement action against a company for strengthening a warning label.³²⁶ Even so, Wyeth left open the possibility that if the company could show the FDA would not have approved the label, there could be a preemption defense.³²⁷ Forcing the industry to say that opioids are not safe for long-term, non-cancer pain may be such an example, since the FDA has approved the opposite language.

Note that this does not apply to generic drugs, which federal regulations require to use the exact same warning label as their branded counterparts.³²⁸ Because companies do not have the same ability to alter generic labels, state requirements to the contrary irreconcilably conflict with federal law and are thus preempted. Plaintiffs have also been barred from suing a company for defrauding the FDA, since the federal statutory scheme empowers the agency to pursue claims of fraud for itself.³²⁹

E.  Common Causes of Action

Because the municipal opioid lawsuits are still in the pleading or discovery stage, their theories have not yet been subjected to the crucible of trial. But they can still be analyzed. This section examines five of the most common: (1) public nuisance, (2) Racketeer Influenced and Corrupt Organizations Act (RICO), (3) negligence, (4) state consumer protection laws, and (5) unjust enrichment. Less frequent causes of action include state controlled substance act violations,³³⁰ civil conspiracy,³³¹ ordinance violations,³³² and fraud.³³³

The goal is not to provide a treatise on each subject, but to highlight what will likely be most difficult to prove about each claim, relevant analogies cities can draw upon, and how courts have dealt with them in the few opioid suits that have made it to court.

1.  Public Nuisance

Public nuisance is one of the most common theories cities use to pursue claims. Plaintiffs used it during the tobacco litigation³³⁴ and it has been a favorite of municipal litigants ever since.³³⁵ The claim was first conceived in the sixteenth century.³³⁶Blackstone defined nuisance as anything that “works hurt, inconvenience, or damage.”³³⁷ Examples could include excessive noises, foul smells, or an erecting a structure that blocks a neighbor’s light or view. A public nuisance, in turn, was “an annoyance to all the king’s subjects.”³³⁸

Over the years, this definition has changed little. The Second Restatement of Torts gives a general definition as “an unreasonable interference with a right common to the general public.”³³⁹ Most courts have adopted a definition along these lines.³⁴⁰ Some jurisdictions have defined it by statute, but without straying too far from the classic definition.³⁴¹ Then-Judge Cardozo observed conduct that is “lawful in its origin may be turned into a nuisance by negligence in maintenance.”³⁴² As for things that are plainly harmful, one “is not to do such things at all, whether he is negligent or careful.”³⁴³

Fortunately for cities, many states have given standing to municipalities to enforce public nuisance.³⁴⁴ Public nuisance statutes have been invoked by various cities in opioid lawsuits.³⁴⁵ But many others have gone the common law route. Orange and Santa Clara Counties in California became the first localities to test out the public nuisance theory in the context of pharmaceutical industry lawsuits,³⁴⁶ and virtually every subsequent lawsuit has sought relief on that theory.

The complaint of Orange and Santa Clara Counties is emblematic of municipal public nuisance claims. it explains how the pharmaceutical industry aggressively normalized opioids for chronic pain, dramatically increasing usage around the country,³⁴⁷ as detailed above. This caused a public nuisance because opioid use leads to addiction, injury, and death for users.³⁴⁸ When users are harmed, it also hurts their families who rely on them or must take care of them.³⁴⁹ More broadly, health care costs are driven up, labor productivity drops, and black markets flourish.³⁵⁰ Pharmaceutical companies, it argues, were a substantial factor in causing the harm because they misled doctors and the public about the costs and benefits of painkillers.³⁵¹ Although the case has not been resolved yet, the city’s Second Amendment complaint did not alter the public nuisance section,³⁵² and the city rebuffed an attempt to keep the suit out of state court,³⁵³ which suggests it is in good shape. Additionally, the city claims that it is seeking to further amend its complaint to update allegations of ongoing misconduct, but does not state it needs to flesh out its public nuisance claim.³⁵⁴

Because of the long pedigree of the public nuisance claim, there is a legion of precedent to draw upon for analogies. A number of past cases deal with public health. Cattle “afflicted with a dangerous and contagious disease” have been deemed a public nuisance because controlling it is “essential to public safety and health.”³⁵⁵ Likewise, the construction of a dam that caused flooding and an attendant increase in fever (likely from mosquitoes) was properly put before a jury to decide if the plaintiff’s illness was caused by the defendant’s actions.³⁵⁶

Even cities have been held liable for public nuisance relating to public health. One such case involved a failure to maintain a proper sewer system.³⁵⁷ Although the sewage only leaked in a handful of houses, the filth posed a health threat to many, and the suit was permitted.³⁵⁸ Cities have also been subjected to public nuisance suits for maintaining noxious garbage dumps,³⁵⁹ operating machinery that kicked up dust and frightened horses,³⁶⁰ and creating loud noises with a rock quarry,³⁶¹ among many other things.

Looking at the field of medicine specifically, the unlicensed practice of medicine is a public nuisance.³⁶² In State ex rel. Marron v. Compere, the court said the “mere showing of illegal practice warrants injunction,” for allowing an untrained physician to administer dangerous drugs “requires little imagination to foresee the most serious consequences to the public thus served.”³⁶³ Doctors have also been criminally prosecuted for freely dispersing controlled substances.³⁶⁴

Drug companies may not have been practicing medicine without a license, but they were enabling doctors to illegally prescribe opioids. It is not such a leap to say that their misconduct is a close cousin to the unauthorized practice of medicine.

Environmental litigation by cities gives another useful comparison. Spokane, Washington sued Monsanto for polluting its river with polychlorinated biphenyls (PCBs). The court said that that the harm was from the contamination of the river, but the “nuisance itself is Monsanto’s production, marketing, and distribution of the PCBs.”³⁶⁵ Monsanto tried to argue that it was consumers of PCBs who dumped the chemicals in the river, not the company itself, but the court accepted Spokane’s assertions that it was foreseeable that PCBs would end up in the river.³⁶⁶ The products containing PCBs were used and disposed of as intended, after all.³⁶⁷

Some courts, however, have vigorously enforced standing requirements to defeat public nuisance claims. in Ganim v. Smith & Wesson Corp., Bridgeport, Connecticut, sued the gun industry.³⁶⁸ It claimed that the industry for years had the power to design safer firearms, yet chose not to, and misled the public about gun safety. The resulting gun violence, it complained, harmed the city when it increased police and medical spending and saw decreased economic activity. The court admitted that the definition of public nuisance was broad enough to embrace the plaintiff’s allegations, but held that the defendants’ role in causing crime was too remote to bestow standing. The causes of crime are innumerable, and there is no easy way to attribute damages correctly.³⁶⁹

If analogies are any guide, this is a relatively promising theory for cities.  It has a fairly respectable track record for cities, notwithstanding its share of failures.

2. Racketeer Influenced & Corrupt Organizations Act (RICO)

The Racketeer Influenced and Corrupt Organizations Act (RICO) makes it unlawful for any person to engage in “a pattern of racketeering activity,” or to conspire in such activity.³⁷⁰ “Racketeering activity,” in turn, is an umbrella term that encompasses a whole host of fraudulent activities.³⁷¹ Most cities have pursued claims under § 1962(c), which broadly makes it unlawful for any person employed by or associated with the conspiracy to further the conspiracy. RICO is a notoriously difficult statute to sue under, and cities tend to spend more pages alleging it than any other cause of action.

To prove a violation of § 1962(c), a plaintiff must show four elements: (1) a pattern of racketeering activity (that it happened more than once), (2) that an “enterprise” existed (any group of people or companies were associated, but not a single legal entity), (3) a connection between the racketeering activity and the enterprise, and (4) an injury.³⁷² The law also creates a private right of action for any person injured by a violation of the law, provided they can show the violation is the proximate cause of the injury.³⁷³ A municipality may sue under RICO.³⁷⁴

A typical municipal RICO complaint reads like this: the pattern of racketeering activity was the companies selling drugs to the black market working together as opioid manufacturers, distributors, and retailers, and the peddling of junk science to mislead the public about opioids. The drug companies form an enterprise because they often work together, but not as one legal entity. Together, they flouted the anti-diversion system and sold pills to the black market. As a result, the city suffered harm in the form of higher spending to deal with the fallout and declining tax revenue.³⁷⁵

Proving racketeering activities and an enterprise would probably overlap with proving causation for the standing requirement. But the injury requirement of RICO may be harder for cities to meet than injury for standing purposes. in City of New York v. Smokes- Spirits.com, Inc., the Second Circuit said that loss of tax revenue is a direct injury that gives a city standing to sue under RICO.³⁷⁶ In that case, the defendant was a cigarette company that sold its products online and did not register with the state as is required by the Jenkins Act.³⁷⁷ The United States Supreme Court reversed the Second Circuit, saying that the conduct constituting fraud was distinct from the conduct causing the lost tax revenue. Since the company was not filing reports with the state on who it sold cigarettes to, the state could not tell the city, and the city could not tax those customers.³⁷⁸ Although it said the harm here was too indirect, it left open the possibility that lost tax revenue “by reason of” the RICO violation would be sufficient for standing.³⁷⁹

City of Milwaukee v Universal Mortgage Corp.³⁸⁰ gives another example. The city accused the defendant bank of a RICO scheme to defraud the U.S. Department of Housing and Urban Development into approving home mortgage insurance on dilapidated homes. Milwaukee suffered decreased property values and increased crime and was forced to spend more to deal with the scheme. The court ultimately concluded that the city was not the real party in interest and its injuries were not proximately caused by the RICO violation.³⁸¹ It was the United States, not the city, that suffered the direct consequences, and the deterioration of Milwaukee’s neighborhoods was only an indirect harm.³⁸²

Judged by these standards, the injury in opioid suits is even more attenuated, since tax revenue goes down due to the consequences of opioid misuse, not because opioids are sold. Defendants may also liken the situation to Anza v. Ideal Steel Supply Corp.,³⁸³ where a competitor complained of another merchant’s ability to offer lower prices because of a RICO violation. The Court said that market forces unrelated to the RICO violation caused the harm, so the claim was no good.³⁸⁴

But at least in the Eighth Circuit, alleging an indirect injury may be enough. in Terre Du Lac Association, Inc. v. Terre Du Lac, Inc., the plaintiff was a property owner’s association suing the developers of its subdivision.³⁸⁵ The plaintiff alleged that the defendant engaged in mail fraud, and, as a result of that fraud, the defendants spent less on roads in the subdivision, forcing the homeowner’s association to spend more, and drove increases in road construction that the association had to maintain.³⁸⁶ The court held that a plaintiff has standing to pursue a RICO action even though it “does not allege that it was a target of the racketeering activity and even though the plaintiff only alleges that it suffered indirect injury.”³⁸⁷ Cert was ultimately denied by the U.S. Supreme Court.³⁸⁸ This may be a useful case for cities, as it bears key similarities: an organization comprised of many residents suffered an injury because it had to spend more resources on public services.

Several other courts have adopted this reasoning.³⁸⁹ Of particular note is Indiana ex rel. Zoeller v. Pastrick,³⁹⁰ which involved a city as plaintiff. East Chicago, Indiana, joined forces with the state to bring a RICO action against the city’s longtime, corrupt mayor.³⁹¹ During his thirty-plus year tenure, Mayor Robert A. Pastrick ran the city as an unabashed political patronage machine — job applications included a signature line for their political sponsor, employees had political contributions deducted right from their paychecks, and the city treasurer paid poll workers in cash.³⁹² Most pertinently for RICO claims, the city hired several dozen cronies, allied contractors were given preferential treatment, and the mayor spent lavishly on neighborhood beautification programs to woo voters.³⁹³

The plaintiff-city argued that the mayor’s schemes cost it public funds to advance his own personal ends.³⁹⁴ The court held that the expenses paid to shady contractors for the neighborhood beautification, the subsequent bonds the city had issued to pay for it, and costs of defending against criminal charges, were recoverable losses since they were proximately caused by the defendants.³⁹⁵ But the court did not grant recovery for salaries paid to corrupt employees, as the city would have had to pay the salaries even if they were not corrupt.³⁹⁶

So while there are a few cases that support cities’ indirect RICO claims, most courts have required a showing of direct harm. This may be difficult if the crux of the complaint is that the harm was caused by opioid users who became addicted, not the very act of selling opioids. Cities in a few jurisdictions, though, have a much better shot at proving an indirect injury.

3. Negligence

A claim of negligence requires showing (1) the drug companies had a duty to the plaintiffs, (2) they breached that duty, and (3) that breach caused harm.³⁹⁷ in city lawsuits, the alleged negligent conduct includes unreasonable dispensing practices and failing to report suspicious orders.³⁹⁸ Courts sometimes accept fairly boilerplate recitations of negligence,³⁹⁹ but it is still worth considering each prong.

Drug companies had a duty to ensure drugs were not misused. As noted above, the pharmaceutical industry skirted their regulatory obligations to monitor, prevent, and report suspicious drug orders. This is a critical oversight because drug distributors are the “first major line of defense” against diversion without whom the entire regulatory framework collapses.⁴⁰⁰ Lest they forget, the Drug Enforcement Agency periodically meets with and sends guidance letters to all registered controlled substance distributors to explain their regulatory requirements.⁴⁰¹

As for breach, if the companies failed to report or prevent suspicious orders, they would have violated their obligations under the law. There were many pill mills that the defendants did not report, drugs companies and executives have pled guilty to wrongdoing, and many others settled. This does not prove they breached a duty to each individual plaintiff, but further investigation may reveal many more violations.

Breaching regulatory obligations is not, however, the same as breaching a duty to a plaintiff. in personal lawsuits against the industry alleging negligence, courts have dismissed the claims without even bothering to analyze them, suggesting that they did not take them seriously.⁴⁰² Something similar happened to negligence claims during municipal firearm lawsuits.⁴⁰³

In some jurisdictions, it may be enough to show that the defendants violated obligations that were “expressly or impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions.”⁴⁰⁴ In most states, there is some sort of general duty of reasonable care to avoid unreasonable conduct that will lead to foreseeable harm.⁴⁰⁵

Even if a duty and breach exist, showing that the breach actually caused the harm is a challenge. In Bodie v. Purdue Pharma Co.,⁴⁰⁶ a doctor testified that he prescribed OxyContin without regard to the inaccurate information on OxyContin’s label or accompanying literature, and the court said this relieved the drug producer of liability. Chicago’s technique of interviewing doctors about how marketing materials mattered in their decision to prescribe opioids might help address this problem.⁴⁰⁷

In light of this general duty to avoid affirmative acts that harm others, some jurisdictions have simply said the defendants owed them a duty to avoid the over-prescription of opioids.⁴⁰⁸ Everett, Washington, alleged that Purdue not only failed to perform oversight but actively supplied drugs to obviously suspicious orders.⁴⁰⁹ The federal district court found this to be enough to stave off dismissal because it allowed affirmative malfeasance, not just nonfeasance.⁴¹⁰ This reasoning was based on the Section 302B of the Second Restatement of Torts.

When Boston sued the firearm industry, it alleged that the industry failed to exercise adequate control over the distribution of firearms, and many guns ended up in the black market. The Superior Court found this sufficiently pled a case of negligence.⁴¹¹ Detroit, on the other hand, had its negligence claims against the firearm industry thrown out and did not try to appeal.⁴¹²

The core of the opioid litigation argument on negligence is similar to that of municipal firearm litigation: the defendants failed to exercise adequate control over the distribution of drugs, and many of them ended up in the black market. Because the standard for negligence is so broad, it may simply come down to whether the jury or judge ruling on the issue thinks that pharmaceutical companies should be responsible for harm caused by prescription pills.

4. State Consumer Protection Laws

State consumer protection laws are at once very similar and very different. They are similar in that their text is almost identical: federal law forbids “unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”⁴¹³ Every state has since adopted a consumer protection statute, many of them with similar language.⁴¹⁴

But beneath the surface, there is a world of difference. A fifty- state survey illustrates the gulf between them.⁴¹⁵ Michigan and Rhode Island courts have gutted their respective laws, even though the plain text is as broad as ever.⁴¹⁶ Iowa does not allow consumers to go to court to enforce its law.⁴¹⁷ Five states require a showing of proof that the deceptive acts were done knowingly and intentionally.⁴¹⁸ And so forth.

California, on the other hand, gives a much freer hand to its municipalities. Its law gives cities standing to bring suits for violations.⁴¹⁹ Tennessee also gives cities standing to sue under its consumer protection law.⁴²⁰ The Tennessee law does not even require that a plaintiff actually suffer the unfair or deceptive act, only that the plaintiff suffer damages as a result of the unfair act.⁴²¹

Such consumer protection statutes can be a valuable method to get into court. Since the harm caused by pharmaceutical companies is usually not a result of direct interaction with a city, the statute could obviate much of the hardship of showing standing.

Because most of these laws bar unfair or deceptive business practices, the allegations center around the defendants’ marketing campaigns, in which they overstated the benefits and understated the risks. Chicago’s lawsuit gives us an early glimpse of how courts might approach these claims. When defendants said that questions about deceptive marketing were better left to the FDA, not the court, they were rebuffed. The court said it was well-equipped to decide whether companies had been misleading in their advertising.⁴²² it likened the claims to cases from around the country alleging false advertising about milk or medicine.⁴²³ The court was careful to note that the city was not arguing opioids could never be used to treat long-term, chronic pain, only that the defendants misconstrued what the evidence said about this sort of treatment.⁴²⁴

That is not to say that the court did not scrutinize the allegations. Although Chicago detailed all of the false or misleading statements the defendants made, the court was not convinced it had shown that any of the doctors or patients knew about or relied upon these claims.⁴²⁵ But after the city added interviews with doctors to remedy these deficiencies, the court still would not accept the claims. it said alternatives to opioids existed before the marketing campaign began and after it ended. Consumers, therefore, were not forced to use the defendant’s products.⁴²⁶ The court also said the city failed to allege enough particularities about injuries to consumers.⁴²⁷

Chicago was given a final opportunity to amend its complaint. But the fact that it is already a 300-page colossus — among the longest of the municipal opioid complaints — shows how difficult it can be to hold pharmaceutical companies accountable for misleading marketing.

5. Unjust Enrichment

Unjust enrichment varies slightly from state to state.⁴²⁸ But despite the different formulations, all of them roughly fit into the three-part description from Williston on Contracts. The treatise gives three elements in a cause of unjust enrichment: (1) the plaintiff confers a benefit on the defendant, (2) the defendant knows or appreciates the benefit, and (3) the circumstances make it unfair for the defendant to retain the benefit.⁴²⁹

The first element might prove hard for cities that do not have insurance plans where they purchased opioids from the defendants. In those cases, it is obvious how cities have conferred a benefit onto drug companies: they paid to fill prescriptions for employees.⁴³⁰ But for cities without such an insurance program, this element becomes trickier. After all, it is residents of cities, not the cities themselves, that typically purchase opioids. Municipalities have tried to argue that the purchases of their residents should count as a benefit conferred for an unjust enrichment claim.⁴³¹

This may well be enough. Everett, Washington, acknowledged in its suit that Purdue did not directly receive a benefit from the city, but emphasized that it benefited immensely from sales of drugs to the black market.⁴³² Purdue did not respond to this argument, and the court found it was facially plausible.⁴³³

Past municipal lawsuits bear this out. When Boston alleged unjust enrichment against the gun industry, the court said the plaintiffs alleged that a benefit was conferred upon the defendants because the city had to pay to ameliorate the harm caused from gun violence, and the defendant undertook the allegedly wrongful conduct for profit. This was enough to plead a claim of unjust enrichment.⁴³⁴ Los Angeles also sued banks that had engaged in discriminatory lending for unjust enrichment. it said the benefit conferred was the fact that the city had to shoulder the costs of the externalities of the defendant’s misconduct.⁴³⁵ The court accepted this argument, noting that unjust enrichment can arise where a plaintiff’s expenditure saves the defendant from expense or loss.⁴³⁶ And for what it is worth, the state of West Virginia also pled a claim of unjust enrichment that eventually settled, so the defendants must not have seen it as completely meritless.⁴³⁷

Success on unjust enrichment claims may well depend on whether the court requires a showing that the defendants actually gave a benefit to cities, or merely that cities had to pay for the externalities caused by defendants. For it is doubtful that if a court finds that the plaintiff gave the defendant a benefit, it would fail to find the defendant did not know or appreciate the benefit. And the question of whether it would be unjust to allow the defendant to keep the benefit may be a value judgment, but one suspects a court that did not find the situation unjust probably would have dismissed the suit at an earlier juncture.

IV.     Conclusion

Alexis de Tocqueville once rhapsodized “The town, or tithing, as the smallest division of a community, must necessarily exist in all nations, whatever their laws and customs may be: if man makes monarchies and establishes republics, the first association of man- kind seems constituted by the hand of God.”⁴³⁸ Cities and towns are, at the most basic level, where we live, and they have a sense of intimacy that no other level of government can hope to match.

Sadly, the opioid crisis has decimated many cities and towns. Thousands of lives have been lost, and millions more struggle with chemical dependency. As one doctor explained, the widespread introduction of high-octave painkillers “was an experiment on the population of the United States. it was not randomized, it was not controlled, and no data was collected, until they started gathering death statistics.”⁴³⁹ We likely still do not know the full extent of the long-term consequences.

Municipal lawsuits represent one step in the effort to hold drug companies accountable. Whether suits end up being successful, on average, remains to be seen. individual lawsuits against the pharmaceutical industry have not been terribly successful.⁴⁴⁰ Lawsuits filed by state governments have fared better, and have obtained some large settlements.⁴⁴¹ Municipal suits are somewhere in the middle. Everett, Washington’s case — the first of its kind in the Evergreen state — was permitted to proceed in court.⁴⁴² A federal judge has convened parties, many of them municipalities, from over 250 suits for settlement talks.⁴⁴³ But most are still in the pleadings stage.

This Article highlights the myriad legal challenges it and other plaintiffs will face going forward. But even if they prevail on every count and all their prayers for relief are answered, the work will not be done. Professor M. Gelfand has theorized that for cities to wage a protracted legal battle against an industry, the public must perceive the industry as unjustifiably responsible for hurting the public at large.⁴⁴⁴ Professor Gelfand also cautions cities to actually use funds from successful litigation to address the problem sued for, rather than directing it towards unrelated purposes as happened in the tobacco suits.⁴⁴⁵ One of the lead attorneys in the current opioid suits shares this concern: he wants proceeds from suits to go to a comprehensive, national program to offer treatment to those scarred by opioids.⁴⁴⁶

Cities may also take hope from the tobacco litigation. Between 1954 and 1994, hundreds of plaintiff attorneys filed lawsuits against big tobacco, and every single one of them failed.⁴⁴⁷ The companies engaged in the “scorched earth” strategy of making litigation intolerably expensive.⁴⁴⁸ As of the 1990s, the average American adult burned through 2,500 cigarettes per year, a third of adults smoked, and over 400,000 adults died each and every year.⁴⁴⁹ By 1997, a total of 3.6 billion cigarettes were consumed annually, up two-thirds from only a few years ago.⁴⁵⁰ The legal theory the states used to sue in 1994 was “untested and widely derided.”⁴⁵¹ States and cities tried anyway.

In 1998, the industry entered into the largest settlement in history, and smoking rates are now at historic lows.⁴⁵²

1. 1 Eugene McQuillin, A Treatise on the Law of Municipal Corporations §1:1 (3d ed. 2010).
2. Stephen Ansolabehere & James M. Snyder Jr., The End of Inequality: One Person, One Vote and the Transformation of American Politics 11 (2008).
3. James Q. Wilson et al., American Government: Institutions and Policies, Brief Version 227 (2016).
4. See 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 178–81, 415–16 (1836).
5. Ansolabehere & Snyder Jr., supra note 2, at 28.
6. John Julius Norwich, The Great Cities in History 10 (2009).
7. Id.
8. Margarete Van Ess, Uruk: The World’s First City, in John Julius Norwich, The Great Cities in History 20 (2009). According to the Epic of Gilgamesh, written around 3,700 B.C., Uruk’s expanse was “three square miles and a half.” Tablet XI 329.
9. Dan Stuckey, Countries by Age, Target Map https://www.targetmap.com /viewer.aspx?reportId=26659 (accessed Dec. 17, 2017) (to more easily view how many nations existed in a given year, sort the countries by “Independence” using the list at the bottom of the page).
10. Members of the League of Nations, Encyclopedia Britannica, https://www.britannica.com/topic/League-of-Nations/Members-of-the-League-of-Nations (accessed Dec. 17, 2017).
11. Justin Davidson, Cities Vs. Trump, New York (Apr. 18, 2017), http://nymag.com/daily/intelligencer/2017/04/the-urban-rural-divide-matters-more-than-red-vs-blue-state.html.
12. David Unkovic, Municipal Distress: Reflections of a Receiver, 24 Widener L.J. 9, 14 (2015).
13. Edward Glaeser, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier 33–36 (2011).
14. Council Director, City of Los Angeles, https://www.lacity.org/your- government/elected-officials/city-council/council-directory (accessed Mar. 3, 2018).
15. The Spirit of Laws, Book IX, chap. 3, pg. 168 (1748).
16. Gerald Frug, The City As a Legal Concept, 93 Harv. L. Rev. 1059, 1062 (1980).
17. Id.
18. Richard Florida, What If Mayors Ruled to World?, City Lab (June 13, 2012), https://www.citylab.com/equity/2012/06/what-if-mayors-ruled-world/1505 (noting that World Trade Organization (WTO) rules bar cities from certain types of boycotts).
19. Kathleen S. Morris, Cities Seeking Justice: Local Government Litigation in the Public Interest, in How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality 189 (Ray Brescia & John Travis Marshall eds., 2016).
20. Frederick A.O. Schwarz, Jr., Cities As Initiators of Affirmative Social Policy Litigation, 24 Mun. Att’y 15, 15 (1983).
21. Town of Westport v. Monsanto Co., No. CIV.A. 14-12041-DJC, 2015 WL 1321466 (D. Mass. Mar. 24, 2015).
22. Complaint, People of the State of California v. Am. Express Co., 2015 WL 6778521 (Cal. Super. Nov. 6, 2015).
23. Complaint, Native Village of Kivalina v. ExxonMobil Corp., 2008 WL 594713 (N.D. Cal. Feb. 26, 2008).
24. Matt Baker, The Worst Drug Epidemic in U.S. History, J. Global Drug Pol’y & Prac. http://www.globaldrugpolicy.org/Issues/Vol%2011%20Issue%201/Commentary/The%20Worst%20Drug%20Epidemic%20in%20US%20History.pdf.
25. People v. Wells Fargo & Co., No. CV 15-4181-GW(FFMX), 2015 WL 4886391, at *1 (C.D. Cal. Aug. 13, 2015).
26. Id. at *2.
27. Id.
28. Id. at *6.
29. Settlement, The People of the State of California v. Wells Fargo, Case No. BC580778 (Sept. 1, 2016) http://freepdfhosting.com/29677883a9.pdf.
30. See Gail Rubin, Taking the Offensive: New York City’s Affirmative Suits, 53 N.Y.L. Sch. L. Rev. 491, 492 (2008/09).
31. Id.
32. See generally id.
33. Id.
34. GDP (current US$) (Austria), World Bank (accessed Mar. 4, 2018), https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?end=1999&locations=AT&start=1997.
35. Laura L. Gavioli, Who Should Pay: Obstacles to Cities in Using Affirmative Litigation As a Source of Revenue, 78 Tul. L. Rev. 941, 947 (2004).
36. Id. at 948.
37. Brian J. Siebel, City Lawsuits Against the Gun Industry: A Roadmap for Reforming Gun Industry Misconduct, 18 St. Louis Univ. Pub. L. Rev. 247, 247 (1999)
38. Id. at 247 n.3.
39. See id. at 249.
40. E.g., Frank J. Vandall, O.K. Corral II: Policy Issues in Municipal Suits Against Gun Manufacturers, 44 Vill. L. Rev. 547, 549 (1999).
41. Wendy Wagner, Stubborn Information Problems & the Regulatory Benefits of Gun Litigation, in Timothy D. Lytton, Suing the Gun Industry 271 (2005).
42. Dan Carden, Pence Ends Gary Gun Lawsuit, Oks Porter County Investments, NWI.Com (May 4, 2015), http://www.nwitimes.com/news/local/govt- and-politics/pence-ends-gary-gun-lawsuit-oks-porter-county-investments/article_9934c25a-ae56-5f1c-98a4-91c5aa04fb26.html.
43. Howard M. Erichson, Private Lawyers, Public Lawsuits: Plaintiffs’ Attorneys in Municipal Gun Litigation, in Lytton, supra note 41, at 133.
44. 15 U.S.C. §§ 7901–7903.
45. Richard E. Gottlieb & Brett J. Natarelli, Update on Municipal Nuisance and Discrimination Litigation, 65 Bus. Law. 665, 665 (2010) (“Not since the round of municipal lawsuits against gun manufacturers six years ago have cities pursued such an aggressive campaign of litigation against private market players that have engaged in conduct—they claim—that has had devastating effects on the cities.”).
46. Raymond H. Brescia, On Public Plaintiffs and Private Harms: The Standing of Municipalities in Climate Change, Firearms, and Financial Crisis Litigation, 24 Notre Dame J.L. Ethics & Pub. Pol’y 7, 22 (2010).
47. E.g., Complaint, City of Providence v. Santander Bank, N.A., No. CA14-244ML (May 29, 2014), available at http://www.relmanlaw.com/docs/cityofprovidencecomplaint.pdf.
48. E.g., Mayor of Baltimore v. Wells Fargo Bank, N.A., 631 F. Supp. 2d 702, 704 (D. Md. 2009).
49. E.g., Gladstone Realtors v. Bellwood, 441 U.S. 91 (1979).
50. Brescia, supra note 46, at 22.
51. Id.
52. Id.
53. Id.
54. City of Buffalo Lawsuit, Safeguard Properties, http://www.safeguardproperties.com/News/All_Client_Alerts/2008/03/City_of_Buffalo_ Lawsuit.aspx.
55. See, e.g., Motion for Partial Summary Judgment, City of Cincinnati v. Deutsche Bank National Trust Co., 2016 WL 3090896 (S.D. Ohio 2016); City of Chicago v. Matchmaker Real Estate Sales Ctr., Inc., No. 88 C 9695, 1991 WL 55770 (N.D. Ill. Apr. 8, 1991), aff’d in part, rev’d in part, 982 F.2d 1086 (7th Cir. 1992); Providence Settles Redlining Lawsuit with Santander Bank, Providence J. (Nov. 5, 2014), http://www.providencejournal.com/news/courts/20141105-providence-settles-redlining-lawsuit-with-santander-bank.ece.
56. Luke Broadwater, Wells Fargo Agrees to Pay $175M Settlement in Pricing Discrimination Suit, Balt. Sun (July 12, 2012), http://articles.baltimoresun.com/2012-07-12/news/bs-md-ci-wells-fargo-20120712_1_mike-heid-wells-fargo-home-mortgage-subprime-mortgages; James O’Toole, Wells Fargo Pledges $432.5M in Lending, Payments to Settle Lawsuit, CNN Money (May 31, 2012), http://money.cnn.com/2012/05/30/news/companies/wells-fargo-memphis.
57. E.g., Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 314 (2d Cir. 2009), rev'd, 564 U.S. 410 (2011); Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012), cert denied, 133 S. Ct. 2390 (2013).
58. For examples involving water, see City of Harrisonville v. McCall Serv. Stations, 495 S.W.3d 738 (Mo. 2016); Zach Winnick, Texas Reaches $2.1M Deal over Dry Cleaner Pollution, Law360 (Oct. 19, 2012), https://www.law360.com/articles/388270/texas-reaches-2-1m-deal-over-dry-cleaner-pollution; J.B. Smith, Bosque River Dairies, Waco Officials Seeing Progress, Trust on Water Quality Issues, Waco Tribune-Herald (Sept. 5, 2014), http://www.wacotrib.com/news/environment/bosque-river-dairies-waco-officials-seeing-progress-trust-on-water/article_8e3437a7-c950-57ec-a8ff-a3ed2edefb72.html. For an example involving soil, see Steve Urbon, New Bedford Reaches Record Settlement in Lawsuits Against PCB Polluters, South Coast Today (Nov. 18, 2015), http://www.southcoasttoday.com/article/20151112/NEWS/151119731.
59. E.g., Kansas City v. Keene Corp., 855 S.W.2d 360, 366 (Mo. 1993); City of N.Y. v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct. 1986), aff'd, 129 A.D.2d 1019, 513 N.Y.S.2d 1004 (1987); City and County of San Francisco v. Henry Karnilowicz, DBA Occidental Express, No. CGC 14-541933 (2014).
60. E.g., People v. Atlantic Richfield Co., No. 1-00-CV-788657 (Cal. Sup. Ct. 2014); County of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292 (2006); City of Milwaukee v. NL Indus., Inc., 691 N.W.2d 888 (2004); City of Philadelphia v. Lead Indus. Ass’n, 1992 WL 23450 (E.D. Pa. Feb. 3, 1992); City of Philadelphia v. Lead Indus. Ass’n, Inc., 994 F.2d 112 (3d Cir. 1993); City of N.Y. v. Lead Indus. Ass’n, Inc., No. 14365/89, 1991 WL 284454 (N.Y. Sup. Ct. Dec. 23, 1991); City of N.Y. v. Lead Indus. Ass’n, Inc., 190 A.D. 2d 173 (N.Y. App. Div. 1993); City of N.Y. v. Lead Indus. Ass’n, 241 A.D. 2d 387 (N.Y. App. Div. 1997).
61. Settlement, People of the State v. Wells Fargo, Case No. BC580778 (Sept. 1, 2016), http://freepdfhosting.com/29677883a9.pdf; Complaint, City of Oakland v. Choice Hotels Int’l, Inc., No. RG17847671 (Jan. 31, 2017), available at http://www.oaklandcityattorney.org/PDFS/Quality%20Inn%20Complaint%201%2031%2017.pdf; Complaint, City and County of San Francisco v. Mission Street Dev’t LLC, No. CGC-16-553758 (Aug. 17, 2016), available at https://www.sfcityattorney.org/2016/11/03/herrera-sues-developer-failing-tell-home-buyers-millennium-tower-sinking (scroll down to bottom of page); Partial Tuition Refunds, Scholarships Begin As a Result of Herrera’s For-Profit College Settlement, S.F. City Att’y (May 13, 2015), https://www.sfcityattorney.org/wp-content/uploads/2015/07/Art-Institute-of-California-San-Francisco-Refund-Program-Presskit.pdf; United Food & Commercial Workers Local 1776 v. Takeda Pharm. Co., No. 1:13-cv-09244.
62. Perales v. Thornburgh, 762 F. Supp. 1036 (S.D.N.Y. 1991), rev’d, 967 F.2d 798 (2d Cir. 1992), cert. granted, judgment vacated sub nom. Reno v. Perales, 509 U.S. 917 (1993), aff’d in part, remanded in part sub nom. Perales v. Reno, 48 F.3d 1305 (2d Cir. 1995).
63. Affirmative Litigation, City of Providence, R.I. (accessed May 26, 2018), http://www.providenceri.gov/law-department/affirmative-litigation.
64. Rachel Dovey, D.C. Renters Get More Legal Help for “Housing Justice” Cases, Next City (Feb. 27, 2017), https://nextcity.org/daily/entry/dc-renters-legal-help-housing-justice.
65. See, e.g., Schwarz, Jr., supra note 20, at 15.
66. Morris, supra note 19, at 191.
67. See Home, Civil Rights Litigation Clearinghouse (accessed Mar. 10, 2018), https://www.clearinghouse.net.
68. Joe Palazzolo, More Cities Suit Up for Legal Actions, Wall St. J. (May 3, 2016), https://www.wsj.com/articles/more-cities-suit-up-for-legal-actions-1462218870.
69. Erichson, supra note 43, at 130.
70. Shauna Johnson, Mercer County Leaders Considering Possible Pill Lawsuit, Metro News (Jan. 11, 2017), http://wvmetronews.com/2017/01/11/mercer-county-leaders-considering-possible-pill-lawsuit.
71. David B. Wilkins, Rethinking the Public-Private Distinction in Legal Ethics: The Case of “Substitute” Attorneys General, 2010 Mich. St. L. Rev. 423, 436 (2010).
72. Palazzolo, supra note 68.
73. Wilkins, supra note 71, at 435.
74. State v. Lead Indus., Ass’n, 951 A.2d 428 (R.I. 2008).
75. Id. at 475 (emphasis omitted).
76. Id. at 477.
77. Id. at 476.
78. See Merck Sharp & Dohme Corp. v. Conway, 947 F. Supp. 2d 733, 739 (E.D. Ky. 2013); City of Chicago v. Purdue Pharma L.P., No. 14 C 4361, 2015 WL 920719, at *4 (N.D. Ill. Mar. 2, 2015); Priceline.com Inc. v. City of Anaheim, 103 Cal. Rptr. 3d 521, 532 (Ct. App. 2010).
79. Walter C. Jones, Attorney General Sets Contingency Fee Policy, Morris News Serv. (May 30, 2012), https://www.dropbox.com/s/yjpu72v1yvj9lg4/Ga%20AG%20sets%20contingency%20fee%20policy_May%2030%202012.pdf?dl=0.
80. Ryan Luby, Attorney General Unveils Changes on Hiring Private Lawyers, KOB Eyewitness News 4 (Mar. 30, 2015), https://www.dropbox.com/s/19u3eqds8i8hi40/www.KOB.pdf?dl=0; Outside Legal Counsel, Office of the Att’y General State of Miss., https://www.dropbox.com/s/39ndiell51smkc5/Outside%20Legal%20Counsel%20_%20Mississippi%20Attorney%20General%27s%20Office.pdf ?dl=0.
81. 2018–2020 Social Justice and Impact Litigation Fellowship County of Santa Clara, Office of the County Counsel (accessed Mar. 4, 2018), https://www.sccgov.org/sites/cco/opportunities/Pages/fellowship.aspx.
82. Impact Litigation & Social Justice Section Fellows, County of Santa Clara, Office of the County Counsel (accessed Mar. 4, 2018), https://www.sccgov.org/sites/cco/opportunities/Pages/past-fellows.aspx.
83. 2018–2020 Social Justice and Impact Litigation Fellowship, supra note 81.
84. Id.
85. San Francisco Affirmative Litigation Project, Yale L. Sch. (accessed Mar. 4, 2018) https://law.yale.edu/sfalp.
86. Morris, supra note 19, at 190.
87. See generally World Health Organization, Tobacco Explained: The Truth About the Tobacco Industry . . . in Its Own Words, http://www.who.int/tobacco/media/en/TobaccoExplained.pdf.
88. Jeanne Whalen, Ohio Sues Five Drugmakers, Saying They Fueled Opioid Crisis, Wall St. J., at 206 (May 31, 2017), reprinted in Micah L. Issitt, The Reference Shelf: Prescription Drug Abuse (2017).
89. Rebecca S. Dresser et al., Breast Implants Revisited: Beyond Science on Trial, 1997 Wis. L. Rev. 705, 743 (1997).
90. Id.
91. John Temple, American Pain: How a Young Felon and His Ring of Doctors Unleashed America’s Deadliest Drug Epidemic 39 (2015).
92. Andrew Sullivan, The Poison We Pick, N.Y. (Feb. 20, 2018), http://nymag.com/daily/intelligencer/2018/02/americas-opioid-epidemic.html.
93. Temple, supra note 91, at 39.
94. Id.
95. DrugFacts: Heroin, Nat’l Inst. on Drug Abuse, http://www.drugabuse.gov/publications/drugfacts/heroin.
96. Id.
97. Sullivan, supra note 92.
98. Stephen F. Knott, The Adams Family’s Revenge Against Alexander Hamilton, Federalist (Oct. 8, 2015), http://thefederalist.com/2015/10/08/the-adams-familys-revenge-against-alexander-hamilton.
99. Prescription Drug Abuse Epidemic in America: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, at 2, 112th Cong. (2012) (statement of Rep. Sensenbrenner), https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg73212/pdf/CHRG-112hhrg73212.pdf.
100. Ashley Weatherford, Kanye West Says He Abused Opioids After His Liposuction Surgery, The Cut (May 1, 2018), https://www.thecut.com/2018/05/kanye-west-opioids-liposuction-tmz.html.
101. Jeremiah A. Ho & Alexander O. Rovzar, Preventing Neonatal Abstinence Syndrome Within the Opioid Epidemic: A Uniform Facilitative Policy, 54 Harv. J. on Legis. 307 (2017).
102. Id.
103. Id.
104. Daniel J. McGraw, How Big Pharma Gave America Its Heroin Problem, Pac. Standard (Nov. 30, 2015), https://psmag.com/social-justice/how-big-pharma-gave-america-its-heroin-problem.
105. Temple, supra note 91, at 40.
106. The Habit: Opioid Addiction in America, Backstory, https://player.fm/series/backstory/the-habit-opioid-addiction-in-america.
107. David T. Courtwright, Preventing and Treating Narcotic Addiction—A Century of Federal Drug Control, 373 New England J. Med. 2095, 2096 (2015).
108. The Habit, supra note 106.
109. Courtwright, supra note 107, at 2096.
110. Paul Kalanithi, When Breath Becomes Air 47 (2016).
111. McGraw, supra note 104.
112. Judy Foreman, A Nation in Pain: Healing Our Biggest Health Problem 3 (2014).
113. Id. at 4.
114. Our Strong Track Record of Helping Address Prescription Drug Abuse and Diversion, PurduePharma.com (accessed July 14, 2018), http://www.purduepharma.com/corporate-social-responsibilities/ongoing-efforts-to-help-address-the-opioid-crisis/strong-track-record.
115. Patrick Radden Keefe, The Family That Built an Empire of Pain, New Yorker (Oct. 30, 2017), https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain.
116. Id.
117. Government Accountability Office, Prescription Drugs: OxyContin Abuse and Diversion and Efforts to Address the Problem 1–2 (2003), https://www.gao.gov/new.items/d04110.pdf.
118. Barry Meier, In Guilty Plea, OxyContin Maker to Pay $600 Million, N.Y. Times (May 10, 2007), http://www.nytimes.com/2007/05/10/business/11drug-web.html.
119. Issitt, supra note 88, at 99.
120. Government Accountability Office, supra note 117, at 8. https://www.gao.gov/new.items/d04110.pdf.
121. Temple, supra note 91, at 43; Issitt, supra note 88, at 99.
122. Temple, supra note 91, at 44.
123. Complaint, City of Detroit v. Purdue Pharma, 2:17-cv-14075, ¶ 161 (E.D. Mich., Dec. 18, 2017).
124. Celine Gounder, Who Is Responsible for the Pain-Pill Epidemic?, New Yorker (Nov. 8, 2013), https://www.newyorker.com/business/currency/who-is-responsible-for-the-pain-pill-epidemic. Its author, Dr. Hershel Jick, later said he was “mortified that that letter to the editor was used as an excuse to do what these drug companies did.” Sarah Zhang, The One-Paragraph Letter from 1980 That Fueled the Opioid Crisis, Atlantic (June 2, 2017), https://www.theatlantic.com/health/archive/2017/06/nejm-letter-opioids/528840.
125. Id.
126. Id.
127. Temple, supra note 91, at 43.
128. Rachel Aviv, Prescription for Disaster, New Yorker (May 5, 2014), https://www.newyorker.com/magazine/2014/05/05/prescription-for-disaster.
129. Government Accountability Office, supra note 117, at 1.
130. Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 221, 223 (2009).
131. McGraw, supra note 104.
132. Meier, supra note 118.
133. Ho & Rovzar, supra note 101, at 316.
134. Van Zee, supra note 130, at 222.
135. Aviv, supra note 128.
136. Government Accountability Office, supra note 117, at 27.
137. Alex Lawson, No Accident: Deadly Greed of Pharmaceutical Companies Drives the Heroin Epidemic, Huffington Post (Jan. 20, 2016), https://www.huffingtonpost.com/alex-lawson/no-accident-deadly-greed_b_9031038.html.
138. Charles Ornstein et al., Drug-Company Payments Mirror Doctors’ Brand- Name Prescribing, NPR (Mar. 17, 2016), in Issitt, supra note 88, at 135.
139. Foreman, supra note 112, at 4–8.
140. Van Zee, supra note 130, at 222.
141. Foreman, supra note 112, at 7–8.
142. Aviv, supra note 128.
143. Issitt, supra note 88, at 99.
144. Id. (drug sales quadrupled between 1999 and 2014).
145. Liz Essley Whyte, Politics of Pain: Drugmakers Fought State Opioid Limits Amid Crisis, Center for Pub. Integrity (Dec. 15, 2016), https://www.publicintegrity.org/2016/09/18/20200/politics-pain-drugmakers-fought-state-opioid-limits-amid-crisis.
146. Id.
147. Id.
148. Scott Higham & Lenny Bernstein, The Drug Industry’s Triumph over the DEA, Wash. Post (Oct. 15, 2017), https://www.washingtonpost.com/graphics/2017/investigations/dea-drug-industry-congress/?utm_term=.7c76b0d6b032.
149. Essley Whyte, supra note 145.
150. Scott Higham et al., Drug Industry Hired Dozens of Officials from the DEA As the Agency Tried to Curb Opioid Abuse, Wash. Post (Dec. 22, 2016), https://www.washingtonpost.com/investigations/key-officials-switch-sides-from-dea-to-pharmaceutical-industry/2016/12/22/55d2e938-c07b-11e6-b527-949c5893595e_story.html?utm_term=.1e633fe0b39c.
151. 21 U.S.C. § 841(a).
152. Id. § 812.
153. Gonzales v. Raich, 545 U.S. 1, 12–13 (2005).
154. United States v. Moore, 423 U.S. 122, 135 (1975).
155. 21 U.S.C. § 822.
156. Id. § 823.
157. 21 C.F.R. 1301.74(b).
158. 21 U.S.C. § 824.
159. Letter from Joseph T. Rannazzisi, Deputy Assis. Admin., Office of Diversion Control, to Cardinal Health (Sept. 27, 2006).
160. Id.
161. Lenny Bernstein & Scott Higham, ‘We Feel Like Our System Was Hijacked’: DEA Agents Say a Huge Opioid Case Ended in a Whimper, Wash. Post (Dec. 17, 2017), https://www.washingtonpost.com/investigations/mckesson-dea- pioids-fine/2017/12/14/ab50ad0e-db5b-11e7-b1a8-62589434a581_story.html?hpid=hp_hp-banner-low_mckesson-603am-hed%3Ahomepage%2Fstory&utm_term=.abb6721c3ea8.
162. Harriet Ryan et al., More Than 1 Million Oxycontin Pills Ended Up in the Hands of Criminals and Addicts. What the Drugmaker Knew, L.A. Times (July 10, 2016), http://www.latimes.com/projects/la-me-oxycontin-part2.
163. Id.
164. Id.
165. Temple, supra note 91, at XIV.
166. Ryan et al., supra note 162.
167. Complaint, Wayne County v. Purdue Pharma, 2:17-cv-13334, ¶ 156 (E.D. Mich., Oct. 12, 2017).
168. The operation described in this paragraph comes from United States v. Funds on Deposit at Bank One, Indiana Account 1563632726, No. 2:02CV480, 2010 WL 909091, at *1–2 (N.D. Ind. Mar. 9, 2010), aff’d, 393 F. App’x 391 (7th Cir. 2010).
169. The Drug Enforcement Administration’s Adjudication of Registrant Actions, United States Department of Justice, Office of the Inspector General, Evaluation and Inspections Divisions, I2014-003, at 6 (May 2014), https://oig.justice.gov/reports/2014/e1403.pdf.
170. Government Accountability Office, supra note 117, at 25–27.
171. Id. at 20.
172. Press Release, Cardinal Health Agrees to $44 Million Settlement for Alleged Violations of Controlled Substances Act, U.S. Att’y Office, Dist. Md. (Dec. 23, 2016), https://www.justice.gov/usao-md/pr/cardinal-health-agrees-44-million-settle ment-alleged-violations-controlled-substances-act.
173. Bernstein & Scott, ‘We Feel Like Our System Was Hijacked,’ supra note 161.
174. Id.
175. Lena Groeger, Big Pharma’s Big Fines, ProPublica (Feb. 24, 2014), http://projects.propublica.org/graphics/bigpharma.
176. Id.
177. Id.
178. Press Release, Pharmaceutical Executives Charged in Racketeering Scheme, U.S. Att’y Office, Dist. Mass. (Dec. 8, 2016), https://www.justice.gov/usao-ma/pr/pharmaceutical-executives-charged-racketeering-scheme.
179. Barry Meier & Eric Lipton, Under Attack, Drug Maker Turned to Giuliani for Help, N.Y. Times (Dec. 28, 2007), https://www.nytimes.com/2007/12/28/us/politics/28oxycontin.html.
180. Issitt, supra note 88, at 99.
181. Temple, supra note 91, at 46.
182. Richard C. Ausness, The Role of Litigation in the Fight Against Prescription Drug Abuse, 116 W. Va. L. Rev. 1117, 1119 (2014).
183. Complaint, City of Tacoma v. Purdue Pharma, 3:17-cv-5737, ¶ 202 (W.D. Wash., Sept. 13, 2017).
184. Bernstein & Scott, ‘We Feel Like Our System Was Hijacked,’ supra note 161.
185. Tacoma Complaint, supra note 183, ¶ 201.
186. Higham & Bernstein, The Drug Industry’s Triumph, supra note 148.
187. Van Zee, supra note 130, at 223.
188. Bernstein & Scott, ‘We Feel Like Our System Was Hijacked,’ supra note 161.
189. Higham & Bernstein, The Drug Industry’s Triumph, supra note 148.
190. Prescription Painkiller Overdoses in the US, Centers for Disease Control & Prevention (2011), https://www.cdc.gov/vitalsigns/painkilleroverdoses/index.html.
191. Van Zee, supra note 130, at 221.
192. Ryan et al., supra note 162.
193. Megan Crigger & Laura Santhanam, How Many Americans Have Died in U.S. Wars?, PBS News Hour (May 24, 2015), https://www.pbs.org/newshour/nation/many-americans-died-u-s-wars.
194. Prescription Drug Abuse Epidemic in America: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 112th Cong. at 1 (2012) (statement of Rep. Sensenbrenner), https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg73212/pdf/CHRG-112hhrg73212.pdf.
195. See Van Zee, supra note 130, at 224.
196. See Complaint, City of Huntington v. AmerisourceBergen Drug Corp., No. 17-C-____ ¶ 24 (Cabell County Cir. Ct.).
197. Prescription Drug Abuse Epidemic in America, supra note 194, at 11 (statement of Rep. Rogers).
198. Whalen, supra note 88, at 195.
199. Gounder, supra note 124.
200. Sarah Holder, The Cities Suing Big Pharma over Opioids, CityLab (Oct. 11, 2017), https://www.citylab.com/life/2017/10/the-cities-suing-big-pharma-over-opioids/542484.
201. id.
202. Transfer Order, In re National Prescription Opiate Litigation, 1:17-md-02804 (Dec. 12, 2017), http://www.ohnd.uscourts.gov/sites/ohnd/files/2804TransferOrder.pdf.
203. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000).
204. Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev. 1859, 1863 (2000).
205. Massachusetts v EPA, 549 U.S. 497, 520 (2007).
206. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
207. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 631 F. Supp. 2d 702, 703–04 (D. Md. 2009).
208. E.g., City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1248 (Ind. 2003); Comer v. Murphy Oil USA, 585 F.3d 855, 862 (5th Cir. 2009).
209. City of Kansas City, Mo. v. Yarco Co., 625 F.3d 1038, 1039–40 (8th Cir. 2010).
210. Id. at 1040–41.
211. See Gladstone Realtors v. Bellwood, 441 U.S. 91, 110–11 (1979).
212. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
213. Esmé E. Deprez & Paul Barrett, The Lawyer Who Beat Big Tobacco Takes on the Opioid Industry, Bloomberg (Oct. 5, 2017), https://www.bloomberg.com /news/features/2017-10-05/the-lawyer-who-beat-big-tobacco-takes-on-the-opioid-industry.
214. Council Econ. Advisers, The Underestimated Cost of The Opioid Crisis 1 (2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/images/The%20Underestimated%20Cost%20of%20the%20Opioid%20Crisis.pdf.
215. Complaint, City of Everett v. Purdue Pharma, ¶ 63 (Wash. Super. Ct., Jan. 19, 2017).
216. Id. ¶ 64.
217. Id. ¶ 66.
218. City of Everett v. Purdue Pharma L.P., No. C17-209RSM, 2017 WL 4236062, at *7 (W.D. Wash. Sept. 25, 2017).
219. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
220. 846 F. Supp. 2d 203 (D.D.C. 2012).
221. Id. at 213.
222. Second Amended Complaint, City of Chicago, v. Purdue Pharma, 14-cv-04361, 2015 WL 7722444, at ¶ 635 (N.D. Ill. 2015).
223. Id. ¶ 636.
224. Id. ¶¶ 662, 676.
225. Id. ¶ 725.
226. Tacoma Complaint, supra note 183, ¶¶ 207–16; Complaint, Erie County v. Purdue Pharma ¶ 3 (Feb. 1, 2017), http://www2.erie.gov/exec/sites/www2.erie.gov.exec/files/uploads/Erie%20v.%20Purdue%20Complaint%20Filing%20Version%202.1.pdf.
227. Complaint, City of Indianapolis v. Purdue Pharma, 1:17-cv-04231, ¶¶ 1, 412, 423 (Nov. 14, 2017).
228. Wayne County Complaint, supra note 167, ¶ 102.
229. Tacoma Complaint, supra note 183, ¶¶ 238, 249.
230. Huntington Complaint, supra note 196.
231. Complaint, Cabell County Comm’n v. AmerisourceBergen, 3:17-cv-01665, ¶ 130 (Mar. 9, 2017).
232. Id. ¶ 406.
233. Complaint, City of Seattle v. Purdue Pharma, ¶ 202 (Wash. Sup. Ct. 2017).
234. Id.
235. White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 824 (N.D. Ohio 2000).
236. Paula Seligson & Tim Reid, Unbudgeted: How the Opioid Crisis Is Blowing a Hole in Small-Town America’s Finances, Reuters (Sept. 27, 2017), https://www.reuters.com/article/us-usa-opioids-budgets/unbudgeted-how-the-opioid-crisis-is-blowing-a-hole-in-small-town-americas-finances-idUSKCN1BU2LP.
237. The facts of this paragraph are from McCauley v. Purdue Pharma L.P., 331 F. Supp. 2d 449, 452–55 (W.D. Va. 2004).
238. Id. at 461.
239. Id. at 462. Showing proximate cause is separate from showing that an injury is “fairly traceable,” but it can still make the ultimate question of causation difficult. A company, for example, may sue if it is driven out of business by a competitor’s false advertising campaign, but that same company’s landlord may not. Lexmark Int’l Inc. v. Static Control Components, 134 S. Ct. 1377, 1391 (2014). Just so, customers of a bank who were discriminated against may be able to sue, but that does not necessarily mean the city where the discrimination occurred may too. County of Cook v. Wells Fargo & Co., 115 F. Supp. 3d 909, 920 (N.D. Ill. 2015). Even individual users of opioids have sometimes failed to show causation in suits against drug makers. E.g., Boysaw v. Purdue Pharma, No. 1:07CV00079, 2008 WL 4452650, at *3–4 (W.D. Va. Sept. 30, 2008), aff’d sub nom. Boysaw v. Friedman, 320 F. App’x 178 (4th Cir. 2009); Ewing v. Purdue Pharma, L.P., No. 2:02CV00150, 2004 WL 1856002, at *2 (W.D. Va. Aug. 19, 2004).
240. Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 868 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012), cert denied, 133 S. Ct. 2390 (2013).
241. Id. at 880.
242. Id. at 881.
243. White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 823 (N.D. Ohio 2000).
244. City of Birmingham v. Citigroup Inc., No. CV-09-BE-467-S, 2009 WL 8652915 (N.D. Ala. Aug. 19, 2009).
245. Id. at *3.
246. Id.
247. Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1306 (2017) (quoting Holmes v. Securities Inv’r Prot. Corp., 503 U.S. 258, 268 (1992)).
248. Huntington Complaint, supra note 196.
249. Indianapolis Complaint, supra note 227, ¶¶ 350–53.
250. City of Detroit v. Purdue Pharma, 2:17-cv-14075, ¶ 84 (E.D. Mich., Dec. 18, 2017).
251. Ryan et al., supra note 162.
252. Id.
253. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 677 F. Supp. 2d 847, 850 (D. Md. 2010).
254. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 631 F. Supp. 2d 702 (D. Md. 2009).
255. Birmingham v. Citigroup, supra note 244, at *3–4.
256. City of Chicago v Purdue Pharma LP, No. 14 C 4361, 2015 WL 2208423, at *15 (ND Ill, May 8, 2015).
257. Second Amended Chicago Complaint, supra note 221, ¶¶ 682–87.
258. Id. ¶ 680.
259. Tacoma Complaint, supra note 183, ¶ 207.
260. Id. ¶ 208.
     
261. Jef Feeley & Jared S. Hopkins, Ohio’s Opioid Suit Should Be Thrown out, Purdue Pharma Argues, Bloomberg (Sept. 9, 2017), https://www.bloomberg.com/news/articles/2017-09-09/ohio-s-opioid-suit-should-be-thrown-out-purdue-pharma-argues.
262. Seattle Complaint, supra note 233, ¶ 179; Tacoma Complaint, supra note 183, ¶ 198; Indianapolis Complaint, supra note 227, ¶ 376.
263. See Indianapolis Complaint, supra note 227, ¶¶ 286, 543.
264. Id. ¶¶ 366–68.
265. Dollars for Docs, ProPublica (accessed May 12, 2018), https://projects.propublica.org/docdollars.
266. Tacoma Complaint, supra note 183, ¶ 200.
267. Wayne County Complaint, supra note 167, ¶ 127.
268. Id. ¶¶ 134–35.
269. Id. ¶¶ 143, 152.
270. Complaint, City of Detroit v. Purdue Pharma, supra note 123, ¶ 449.
271. Id.
272. Wendell Cox, The Evolving Urban Form: Detroit, New Geography (June 10, 2016), http://www.newgeography.com/content/005284-the-evolving-urban-form-detroit.
273. E.g., City of Miami v. Bank of Am. Corp., No. 13-24506-CIV, 2014 WL 3362348, at *2 (S.D. Fla. July 9, 2014); County of Cook v. Bank of Am. Corp., 181 F. Supp. 3d 513 (N.D. Ill. 2015); Ganim v. Smith & Wesson Corp., 780 A.2d 98, 127 (Conn. 2001); Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 877 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012), cert denied, 133 S. Ct. 2390 (2013).
274. Boysaw v. Purdue Pharma, No. 1:07CV00079, 2008 WL 2076667, at *2 (W.D. Va. May 16, 2008).
275. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 677 F. Supp. 2d 847, 848 (D. Md. 2010).
276. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., No. 1:08-cv-00062-JFM, 2011 WL 1557759, at *3 (D. Md. Apr. 22, 2011).
277. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 677 F. Supp. 2d 847, 851 (D. Md. 2010).
278. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., No. 1:08-cv- 00062-JFM, 2011 WL 1557759, at *3 (D. Md. Apr. 22, 2011).
279. Id. at *6.
280. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., No. 1:08-cv-00062-JFM (Dkt. 222), https://www.clearinghouse.net/chDocs/public/FH-MD-0001-0013.pdf.
281. Third Amended Complaint, Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., at ¶¶119–310 (1:08-cv-00062) (D. Md. 2009), https://www.clearinghouse.net/chDocs/public/FH-MD-0001-0001.pdf.
282. Id. ¶ 311.
283. Third Amended Complaint, Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., at ¶29 n.2, ¶¶ 32–41 (1:08-cv-00062) (D. Md. 2009), https://www .clearinghouse.net/chDocs/public/FH-MD-0001-0001.pdf.
284. Id. ¶¶ 46–49.
285. Mayor & City Council of Baltimore v. Wells Fargo Bank, N.A., 631 F. Supp. 2d 702, 704 (D. Md. 2009).
286. Fourth Amended Complaint, People v. Conagra Grocery Prod. Co., 2011 WL 10922747 (Cal. Super. 2011).
287. Id. ¶¶ 28–83.
288. People v. Conagra Grocery Prod. Co., 227 Cal. Rptr. 3d 499, 598 (Ct. App. 2017), reh’g denied, Dec. 6, 2017, review denied, Feb. 14, 2018.
289. First Amended Complaint City of Los Angeles v. JPMorgan Chase & Co., at ¶13, No. 2:14-CV-04168-ODW (C.D. Cal. Nov. 14, 2014), https://www.clearinghouse.net/chDocs/public/FH-CA-0015-0003.pdf.
290. Id. ¶¶ 110–28.
291. Id. ¶ 134.
292. City of Los Angeles v. JPMorgan Chase & Co., No. 2:14-CV-04168-ODW, 2014 WL 6453808, at *4 (C.D. Cal. Nov. 14, 2014).
293. Case Profile: City of Los Angeles v. JPMorgan Chase, Civil Rights Litigation Clearinghouse (accessed Mar. 10, 2018), https://www.clearinghouse.net/detail.php?id=13869&search=source%7Cgeneral%3BcaseCat%7CFH%3Borderby%7CfilingYear%3B.
294. Complaint, City of Memphis v. Wells Fargo Bank, ¶¶ 36–60, 139–212 (W.D. Tenn. 2010), https://www.clearinghouse.net/chDocs/public/FH-TN-0002-0001.pdf.
295. City of Memphis v. Wells Fargo Bank, N.A., No. 09-2857-STA, 2011 WL 1706756, at *1–3 (W.D. Tenn. May 4, 2011).
296. Id. at *9.
297. James O’Toole, Wells Fargo Pledges $432.5M in Lending, Payments to Settle Lawsuit, CNN Money (May 31, 2012), http://money.cnn.com/2012/05/30/news/companies/wells-fargo-memphis.
298. Complaint, City of Cleveland v. Deutsche Bank Tr. Co., 2008 WL 200271 (N.D. Ohio).
299. City of Cleveland v. Ameriquest Mort. Sec., Inc., 615 F.3d 496, 499 (6th Cir. 2010).
300. Id. at 500.
301. See generally Second Amended Complaint, City of Cleveland v. Deutsche Bank Tr. Co., 2008 WL 4600486 (N.D. Ohio).
302. Id.
303. Ameriquest Mort. Sec., 615 F.3d at 507.
304. E.g., United States v. Kubrick, 444 U.S. 111, 119–20 (1979); Golla v. Gen. Motors Corp., 657 N.E.2d 894, 898 (Ill. 1995); 1000 Va. Ltd. P’ship v. Vertecs Corp., 146 P.3d 423, 428 (Wash. 2006), as corrected, Nov. 15, 2006; McCoy v. Miller, 578 S.E.2d 355, 358 (W. Va. 2003).
305. Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 342 (D.C. Cir. 1991).
306. TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001).
307. Ausness, supra note 182, at 113–37.
308. Boysaw, 2008 WL 2076667, at *1.
309. Id.
310. Foister v. Purdue Pharma, L.P., 295 F. Supp. 2d 693, 708 (E.D. Ky. 2003).
311. See Wethington v. Purdue Pharma L.P., 218 F.R.D. 577, 589 (S.D. Ohio 2003).
312. Madel v. U.S. Dep’t of Justice, 784 F.3d 448 (8th Cir. 2015).
313. Detroit Complaint, supra note 123, ¶¶ 473–88; Complaint, City of Birmingham v. AmerisourceBergen, ¶ 117–18 (N.D. Ala. Aug. 14, 2017).
314. James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine As Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 601–10 (1996).
315. See Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir. 1980), and cases cited within.
316. Havens Realty Corp. v. Coleman, 455 U.S. 363, 380–81 (1982); Pac. Sound Res. v. Burlington N. Santa Fe Ry. Corp., 125 P.3d 981, 989 (Wash. 2005); Taylor v. Culloden Pub. Serv. Dist., 591 S.E.2d 197, 205 (W.Va. 2003).
317. McGregor v. Louisiana State Univ. Bd. of Sup’rs, 3 F.3d 850, 867 (5th Cir. 1993) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)); Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008).
318. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
319. Wyeth v Levine, 555 U.S. 555, 565 (2009).
320. Id. at 567.
321. 21 C.F.R. 314.105(b).
322. See 21 C.F.R. 314.70.
323. Glenn G. Lammi, FDA Cannot Remain MIA As States’, Cities’ Drug-Litigation Crusade Threatens Regulatory Uniformity, Forbes (Dec. 18, 2017), https:// www.forbes.com/sites/wlf/2017/12/18/fda-cannot-remain-mia-as-states-cities-drug-litigation-crusade-threatens-regulatory-uniformity/#60727fee7c1a.
324. Feeley & Hopkins, supra note 261.
325. 555 U.S. at 570.
326. Id.
327. Id. at 572.
328. PLIVA, Inc. v Mensing, 564 U.S. 604, 618 (2011) (citing 21 CFR § 314.150(b) (10)); see also Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 483–84 (2013).
329. Buckman Co. v Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001).
330. Huntington Complaint, supra note 196.
331. Seattle Complaint, supra note 233.
332. Indianapolis Complaint, supra note 227.
333. Erie Complaint, supra note 226.
334. Alana Semuels, Are Pharmaceutical Companies to Blame for the Opioid Epidemic?, Atlantic (June 2, 2017), https://www.theatlantic.com/business/archive/2017/06/lawsuit-pharmaceutical-companies-opioids/529020.
335. State and Local Revenue Enhancement and Taxation Policies in a Digital Age: E-Commerce Taxation, Business Tax Incentives, and Litigation Generated Revenues, 34 Urb. Law. 429, 444 (2002).
336. Louise A. Halper, Public Nuisance and Public Plaintiffs: Rediscovering the Common Law (Part I), 16 Envtl. L. Rep. 10292 (1982).
337. Sir William Blackstone, Commentaries on the Laws of England (1765–69), Book 3, chap. 13.
338. Id.
339. Restatement (Second) of Torts § 821B.
340. Timothy D. Lytton, Suing the Gun Industry 12 (2005).
341. Ala. Code §§ 6-5-120, 6-5-121; see also Ind. Code § 32-30-6-6; Wash. Rev. Code §§ 7.48.120, 7.48.130.
342. McFarlane v. City of Niagara Falls, 160 N.E. 391, 392 (N.Y. 1928).
343. Id. at 391–92.
344. E.g., W. Va. Code § 7-1-3kk; Ala. Code § 6-5-122; Ohio Rev. Code § 715.44.
345. Complaint, Cabell County Comm’n v. AmerisourceBergen, 3:17-cv-01665, ¶ 136 (Mar. 9, 2017); Birmingham Complaint, supra note 313, ¶ 134.
346. Victor E. Schwartz et al., Deep Pocket Jurisprudence: Where Tort Law Should Draw the Line, 70 Okla. L. Rev. 359, 383 (2018).
347. Complaint, People v. Purdue Pharma, ¶ 5 (Cal. Sup. Ct. May 21, 2014).
348. Id. ¶ 292.
349. Id.
350. Id.
351. Id. ¶ 294.
352. Second Amended Complaint, People v. Purdue Pharma, No. 30-2014-00725287-CU-BT-CXC ¶¶ 413–25 (Dec. 23, 2014).
353. Social Justice and Impact Litigation Section, County of Santa Clara, Office County Counsel (accessed July 14, 2018), https://www.sccgov.org/sites/cco/overview/impact/Pages/impact.aspx#opioid.
354. Id.
355. Durand v. Dyson, 111 N.E. 143, 145 (Ill. 1915).
356. Mills v. Hall & Richards, 1832 WL 2921 (N.Y. Sup. Ct. 1832).
357. City of Ludlow v. Com., 56 S.W.2d 958, 958 (Ky. 1933).
358. Id. at 959.
359. City of Newport v. Commonwealth, 55 S.W. 914, 914 (Ky. 1900).
360. State ex rel. Detienne v. City of Vandalia, 94 S.W. 1009, 1010 (Mo. App. 1906).
361. City of Paris v. Commonwealth, 93 S.W. 907, 907 (Ky. 1906).
362. State ex rel. Collet v. Scopel, 316 S.W.2d 515, 520 (Mo. 1958) (citing cases); Attorney Gen. ex rel. Mich. Bd. of Optometry v. Peterson, 164 N.W.2d 43, 53 (Mich. 1969); Mich. State Chiropractic Ass’n v. Kelley, 262 N.W.2d 676, 677 (Mich. App. 1977); State ex rel. Marron v. Compere, 1940-NMSC-041, ¶ 14, 103 P.2d 273, 277 (N.M. 1940); Burden v. Hoover, 137 N.E.2d 59, 61 (Ill. 1956); State v. Howard, 241 N.W. 682, 685 (Iowa 1932). Cf. Nighohossian v. State ex rel. Patterson, 253 P.2d 344, 346 (Ariz. 1953) (practicing without a license is not automatically a public nuisance, but can if unlicensed practice might be injurious to health). But see State v. Maltby, 188 N.W. 175, 178 (Neb. 1922) (unlicensed chiropractor was not committing public nuisance).
363. Compere, 1940-NMSC-041, ¶ 14, 103 P.2d at 277.
364. Moore, 423 U.S. 122; Jin Fuey Moy v. United States, 254 U.S. 189 (1920); United States v. Behrman, 258 U.S. 280 (1922).
365. City of Spokane v. Monsanto Co, No. 2:15-CV-00201-SMJ, 2016 WL 6275164, at *7 (E.D. Wash. Oct. 26, 2016).
366. Id. at *8. But see Town of Westport v. Monsanto, 2015 WL 1321466, (D. Mass. Mar. 24, 2015); City of Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611 (7th Cir. 1989).
367. Spokane v. Monsanto, 2016 WL 6275164, at *8.
368. 780 A.2d 98, 131 (Conn. 2001).
369. Ganim v. Smith & Wesson Corp., 780 A.2d 98, 132 (Conn. 2001).
370. 18 U.S.C. § 1962.
371. Id. § 1961.
372. Frank v. D’Ambrosi, 4 F.3d 1378, 1385, 1386 (6th Cir. 1993) (citing Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 274 n.5 (9th Cir.1988)); 18 U.S.C. § 1961(4) (definition of “enterprise”).
373. 18 U.S.C. § 1964; Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992).
374. E.g., City of Cleveland v. Woodhill Supply, Inc., 403 F. Supp. 2d 631 (N.D. Ohio 2005).
375. See, e.g., Detroit Complaint, supra note 123, ¶¶ 523–616.
376. City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 441 (2d Cir. 2008).
377. Id. at 433–34.
378. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010).
379. Id. at 4–5.
380. 692 F. Supp. 992 (1988).
381. Id. at 998.
382. Id. at 998–99.
383. 547 U.S. 451, 459 (2006).
384. Id. at 460.
385. 772 F.2d 467, 468–69.
386. Id. at 472.
387. Terre Du Lac Ass’n, Inc. v. Terre Du Lac, Inc., 772 F.2d 467, 472 (8th Cir. 1985).
388. 475 U.S. 1082 (1986).
389. 389. Bass v. Campagnone, 838 F.2d 10, 11–12 (1st Cir. 1988); Pandick, Inc. v. Rooney, 632 F. Supp. 1430, 1433 (N.D. Ill. 1986). Others have declined to follow it. O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir. 1989); Nat’l Enters., Inc. v. Mellon Fin. Servs. Corp. No. 7, 847 F.2d 251, 254 (5th Cir. 1988); Oakland County by Kuhn v. City of Detroit, 628 F. Supp. 610, 615 (E.D. Mich. 1986); Klapper v. Commonwealth Realty Tr., 657 F. Supp. 948, 953 (D. Del. 1987).
390. 696 F. Supp. 2d 970 (N.D. Ind. 2010).
391. Id. at 974–75.
392. Id. at 975–76.
393. Id. at 976.
394. Id. at 983.
395. Id. at 983–84.
396. Id. at 986. But see City of New York v. JAM Consultants, Inc., 889 F. Supp. 103, 105 (S.D.N.Y. 1995) (“Salary payments to [a city] employee who either fails to perform his duties or performs them corruptly may be recovered from the employee under RICO.”).
397. T & M Jewelry, Inc. v. Hicks ex. rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Ontiveros v. Borak, 667 P.2d 200, 204 (Ariz. 1983) (citing W. Prosser, Handbook on the Law of Torts § 30, at 143 (4th ed. 1971)).
398. Detroit Complaint, supra note 123, ¶ 517.
399. E.g., Little v. Purdue Pharma, L.P., 227 F. Supp. 2d 838, 847–48 (S.D. Ohio 2002).
400. Declaration of Joseph Rannazzisi, Cardinal Health v. Holder, 2012 WL 11747342, ¶ 10 (D.D.C 2012).
401. Id. ¶ 26.
402. Ausness, supra note 182, at 1123.
403. Ganim v. Smith & Wesson Corp., 780 A.2d 98 (Conn. 2001).
404. King v. Nat’l Spa & Pool Inst., Inc., 570 So. 2d 612, 614 (Ala. 1990) (citing 57 Am. Jur. 2d, Negligence § 36 at 382 (1988)); Meyers v. Donnatacci, 531 A.2d 398, 401 (N.J. Super. 1987).
405. See, e.g., T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Yakubowicz v Paramount Pictures Corp., 536 N.E.2d 1067, 1070 (Mass. 1989); White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 828 (N.D. Ohio 2000).
406. 236 F. App’x 511, 521 (11th Cir. 2007).
407. Second Amended Chicago Complaint, supra note 222, ¶ 635.
408. Tacoma Complaint, supra note 183, ¶ 284.
409. Everett Complaint, supra note 215.
410. City of Everett v. Purdue Pharma L.P., No. C17-209RSM, 2017 WL 4236062, at *4 (W.D. Wash. Sept. 25, 2017).
411. City of Boston v Smith & Wesson Corp., No. 199902590, 2000 WL 1473568, at *15 (Mass Super., July 13, 2000); see also White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 828–29 (N.D. Ohio 2000).
412. Mayor of Detroit v. Arms Tech., Inc., 669 N.W.2d 845, 854 (Mich. Ct. App. 2003).
413. 15 U.S.C. § 45.
414. Prentiss Cox, Amy Widman & Mark Totten, Strategies of Public UDAP Enforcement, 55 Harv. J. on Legis. 37, 42 (2018).
415. Carolyn L. Carter, Consumer Protection in the States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes, Nat’l Consumer L. Ctr. 7–10 (Feb. 2009), https://www.nclc.org/images/pdf/car_sales/UDAP_Report_Feb09.pdf.
416. Id. at 3.
417. Id.
418. Id.
419. Cal. Bus. & Prof. Code § 17203.
420. Tenn. Code Ann. § 47-18-109(a)(1) (giving any “person” standing to sue); id. § 47-18-103(13) (defining “person” to include a “governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized).
421. City of Memphis v. Wells Fargo Bank, N.A., No. 09-2857-STA, 2011 WL 1706756, at *11 (W.D. Tenn. May 4, 2011).
422. City of Chicago v Purdue Pharma LP, No. 14 C 4361, 2015 WL 2208423, at *4 (N.D. Ill., May 8, 2015).
423. Id.
424. Id. at *10.
425. City of Chicago v Purdue Pharma LP, supra note 422, at *10–12.
426. City of Chicago v. Purdue Pharma L.P., 211 F. Supp. 3d 1058, 1074–75 (N.D. Ill. 2016).
427. Id. at 1075–76.
428. Powers v. Lycoming Engines, 245 FRD 226, 230–31 (E.D. Pa. 2007).
429. Restitution Independent of Liability on Contract—Unjust Enrichment, 26 Williston on Contracts § 68:5 (4th ed.); see also Restatement (Third) of Restitution and Unjust Enrichment § 1, cmt. d.
430. Chicago Complaint, supra note 222, ¶ 849.
431. Wayne County Complaint, supra note 167, ¶ 334; Erie County Complaint, supra note 226, ¶ 249; Indianapolis Complaint, supra note 227, ¶ 588; Huntington Complaint, supra note 196, ¶ 130.
432. City of Everett v. Purdue Pharma L.P., No. C17-209RSM, 2017 WL 4236062, at *9 (W.D. Wash. Sept. 25, 2017).
433. Id.
434. City of Boston v Smith & Wesson Corp., No. 199902590, 2000 WL 1473568, at *18 (Mass Super. July 13, 2000); see also White v. Smith & Wesson Corp., 97 F. Supp. 2d 816, 829 (N.D. Ohio 2000).
435. City of Los Angeles v JPMorgan Chase & Co, No. 2:14-CV-04168-ODW,2014 WL 6453808, at *10 (C.D. Cal. Nov. 14, 2014).
436. Id.
437. Ausness, supra note 182, at 1148–49.
438. Democracy in America, chap. V, pt. I.
439. Chicago Complaint, supra note 222, ¶ 14.
440. Ausness, supra note 182, at 1120.
441. Id.
442. Holder, supra note 200.
443. Geoff Mulvihill, As Opioid Crisis Grows, Judge Aims for Solutions, Settlement, U.S. News & World Rep. (Jan. 30, 2018), https://www.usnews.com/news/news/articles/2018-01-30/federal-judge-wants-opioid-lawsuits-to-end-in-settlement.
444. State and Local Revenue Enhancement and Taxation, supra note 335, at 447.
445. Id.
446. Esmé E. Deprez & Paul Barrett, The Lawyer Who Beat Big Tobacco Takes on the Opioid Industry, Bloomberg (Oct. 5, 2017), https://www.bloomberg.com/news/features/2017-10-05/the-lawyer-who-beat-big-tobacco-takes-on-the-opioid-industry.
447. Erichson, supra note 43, at 135.
448. Id.
449. Achievements in Public Health, 1900–1999: Tobacco Use—United States, 1900–1999, Centers for Disease Control and Prevention (1999), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm4843a2.htm.
450. Erratum: Vol. 48, No. 43, Ctrs. for Disease Control & Prevention (2000), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm4901a5.htm.
451. Deprez & Barrett, supra note 446.
452. Semuels, supra note 334; Press Release, Adult Cigarette Smoking Rate Overall Hits All-Time Low, Ctrs. for Disease Control & Prevention (Nov. 26, 2014), https://www.cdc.gov/media/releases/2014/p1126-adult-smoking.html.