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HomeMy WebLinkAboutAgenda 11-16-2021; 6-b - Opt-in to the National Settlement with Janssen and National Distributors 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 16, 2021 Action Agenda Item No. 6-b SUBJECT: Opt-in to the National Settlement with Janssen and National Distributors DEPARTMENT: County Attorney ATTACHMENT(S): INFORMATION CONTACT: Distributor Opt-In John Roberts, County Attorney, 245- Janssen Opt-In 2318 PURPOSE: To enter the national settlement as previously approved by the Board of Commissioners in Closed Session. BACKGROUND: As previously reported to the Board of Commissioners, the County's national attorneys have been negotiating with multiple defendants in the national opioid litigation in order to reach a settlement. There are two proposed nationwide settlement agreements ("Settlements") that have been reached that will resolve all opioid litigation brought by states and local political subdivisions against the three largest pharmaceutical distributors, McKesson, Cardinal Health, and AmerisourceBergen ("Distributors"), and one manufacturer, Janssen Pharmaceuticals, Inc., and its parent company Johnson & Johnson (collectively, "Janssen"). This leaves open litigation against numerous other and generally smaller corporate defendants. The proposed Settlements require the Distributors and Janssen to pay billions of dollars to abate the opioid epidemic. Specifically, the Settlements require the Distributors to pay up to $21 billion over 18 years and Janssen to pay up to $5 billion over no more than 9 years, for a total of $26 billion (the "Settlement Amount"). Of the Settlement Amount, approximately $22.7 billion is earmarked for use by participating states and subdivisions to remediate and abate the impacts of the opioid crisis. The Settlements also contain injunctive relief provisions governing the opioid marketing, sale and distribution practices at the heart of the states' and subdivisions' lawsuits and further require the Distributors to implement additional safeguards to prevent diversion of prescription opioids. Each of the proposed Settlements has two key participation steps. First, each state decides whether to participate in the Settlements. North Carolina has joined both Settlements. Second, the subdivisions within each participating state must then decide whether to participate in the Settlements. The Board of Commissioners has approved participation in closed session and this action is to formally enter the settlement. 2 By formally entering the settlement and executing the attached documents, Orange County will release the Distributors and Janssen from further liability related to opioid impacts in Orange County and the County will gain access to the settlement funds allotted to North Carolina. FINANCIAL IMPACT: There is no financial impact associated with this item at this time. Over the 18-year payment term of the settlement, North Carolina should receive in excess of $700 million of which 80% will be provided directly to local governments. Orange County should receive millions of dollars over the term, the use of which will be generally restricted to remediation of the impact of opioids and opioid addiction in the County. SOCIAL JUSTICE IMPACT: There are no Orange County Social Justice Goals associated with this item. ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal impact associated with this item. RECOMMENDATION(S): The Manager recommends the Board approve final entry into the settlement and authorize the Chair to sign the opt-ins and any other documentation necessary to enter and finalize the settlement on behalf of Orange County. 3 Settlement Participation Form Governmental Entity: State:North Carolina Authorized Signatory: Address 1: Address 2: City, State,Zip: Phone: Email: The governmental entity identified above ("Governmental Entity"),in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated July 21, 2021 ("Distributor Settlement"), and acting through the undersigned authorized official,hereby elects to participate in the Distributor Settlement, release all Released Claims against all Released Entities, and agrees as follows. 1. The Governmental Entity is aware of and has reviewed the Distributor Settlement, understands that all terms in this Election and Release have the meanings definedtherein, and agrees that by this Election,the Governmental Entity elects to participate in the Distributor Settlement and become a Participating Subdivision as provided therein. 2. The Governmental Entity shall,within 14 days of the Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has filed. 3. The Governmental Entity agrees to the terms of the.Distributor Settlement pertaining to Subdivisions as defined therein. 4. By agreeing to the terms of the Distributor Settlement and becoming a Releasor,the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date. 5. The Governmental Entity agrees to use any monies it receives through the Distributor Settlement solely for the purposes provided therein. 6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity's state where the Consent Judgment is filed for purposes limited to that court's role as provided in, and for resolving disputes to the extent provided in,the Distributor Settlement. 7. The Governmental Entity has the right to enforce the Distributor Settlement as provided therein. 4 8. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all purposes in the Distributor Settlement, including but not limited to all provisions of Part XI, and along with all departments, agencies, divisions,boards, commissions, districts, instrumentalities of any kind and attorneys, and any person in their official capacity elected or appointed to serve any of the foregoing and any agency,person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor,provides for a release to the fullest extent of its authority. As a Releasor,the Governmental Entity hereby absolutely,unconditionally, and irrevocably covenants not to bring,file, or claim, or to cause, assist or permit to be brought,filed, or claimed, or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Distributor Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Distributor Settlement shall be a complete bar to any Released Claim. 9. The Governmental Entity hereby takes on all rights and obligations of a Participating Subdivision as set forth in the Distributor Settlement. 10. In connection with the releases provided for in the Distributor Settlement, each Governmental Entity expressly waives,releases, and forever discharges any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States or other jurisdiction, or principle of common law,which is similar, comparable, or equivalent to § 1542 of the California Civil Code,which reads: General Release; extent.A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. A Releasor may hereafter discover facts other than or different from those which it knows,believes, or assumes to be true with respect to the Released Claims,but each Governmental Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges,upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist,whether through ignorance, oversight, error,negligence or through no fault whatsoever, and which, if known,would materially affect the Governmental Entities' decision to participate in the Distributor Settlement. 11.Nothing herein is intended to modify in any way the terms of the Distributor Settlement, to which Governmental Entity hereby agrees. To the extent this Election and Release is interpreted differently from the Distributor Settlement in any respect,the Distributor Settlement controls. 5 I swear under penalty of perjury that I have all necessary power and authorization to execute this Election and Release on behalf of the Governmental Entity. Signature: Name: Title: Date: 6 Settlement Participation Form Governmental Entity: State:North Carolina Authorized Signatory: Address 1: Address 2: City, State,Zip: Phone: Email:. The governmental entity identified above ("Governmental Entity"), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated July 21,2021 ("Janssen Settlement"), and acting through the undersigned authorized official,hereby elects to participate in the Janssen Settlement,release all Released Claims against all Released Entities, and agrees as follows. 1. The Governmental Entity is aware of and has reviewed the Janssen Settlement, understands that all terms in this Election and Release have the meanings definedtherein, and agrees that by this Election,the Governmental Entity elects to participate in the Janssen Settlement and become a Participating Subdivision as provided therein. 2. The Governmental Entity shall,within 14 days of the Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has filed. 3. The Governmental Entity agrees to the terms of the Janssen Settlement pertaining to Subdivisions as defined therein. 4. By agreeing to the terms of the Janssen Settlement and becoming a Releasor,the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date. 5. The Governmental Entity agrees to use any monies it receives through the Janssen Settlement solely for the purposes provided therein. 6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity's state where the Consent Judgment is filed for purposes limited to that court's role as provided in, and for resolving disputes to the extent provided in,the Janssen Settlement. 7. The Governmental Entity has the right to enforce the Janssen Settlement as provided therein. 7 8. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all purposes in the Janssen Settlement, including but not limited to all provisions of Section IV(Release), and along with all departments, agencies, divisions,boards, commissions, districts, instrumentalities of any kind and attorneys, and any person in their official capacity elected or appointed to serve any of the foregoing and any agency, person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor,provides for a release to the fullest extent of its authority.As a Releasor,the Governmental Entity hereby absolutely,unconditionally, and irrevocably covenants not to bring, file, or claim, or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Janssen Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Janssen Settlement shall be a complete bar to any Released Claim. 9. In connection with the releases provided for in the Janssen Settlement, each Governmental Entity expressly waives,releases, and forever discharges any andall provisions,rights, and benefits conferred by any law of any state or territory of the United States or other jurisdiction, or principle of common law,which is similar, comparable, or equivalent to § 1542 of the California Civil Code,which reads: General Release; extent.A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released parry. A Releasor may hereafter discover facts other than or different from those which it knows,believes, or assumes to be true with respect to the Released Claims,but each Governmental Entity hereby expressly waives and fully,finally, and forever settles, releases and discharges, upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist,whether through ignorance, oversight, error,negligence or through no fault whatsoever, and which, if known, would materially affect the Governmental Entities' decision to participate in the Janssen Settlement. 10.Nothing herein is intended to modify in any way the terms of the Janssen Settlement,to which Governmental Entity hereby agrees. To the extent this Election and Release is interpreted differently from the Janssen Settlement in any respect,the Janssen Settlement controls. 8 I swear under penalty of perjury that I have all necessary power and authorization to execute this Election and Release on behalf of the Governmental Entity. Signature: Name: Title: Date: