Government Law

Can Chicago deputize law firm to do city's job? No, say companies sued in painkiller-marketing case

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Sued by the city of Chicago earlier this year over their marketing of painkillers, a group of pharmaceutical companies is now fighting back.

The seven defendant companies are seeking to disqualify Cohen Milstein Sellers & Toll, the special assistant corporation counsel deputized by Chicago to handle the case on a contingency fee basis. They argue that the arrangement isn’t authorized by state law and the city’s municipal code, the National Law Journal (sub. req.) reports.

The defendants also contend deputizing the law firm violates a Chicago ethics rule that bars officials from influencing public policy if they have a financial interest in the result. However, a Chicago Board of Ethics ruling OK’d the arrangement with Cohen Milstein, the city says.

Stephen Patton, who serves as the city’s corporation counsel, said delegating to the law firm is permitted as long as Chicago retains control of the case.

“From the tobacco litigation in the late 1990s to recent pharmaceutical cases, government enforcement authorities have hired outside contingent fee counsel in complex matters to steward limited public resources and to level the playing field against well-resourced adversaries like defendants,” he said. “Numerous courts have considered whether these arrangements implicated due process and virtually every one of them has concluded that they are permissible.”

The pharmaceutical companies say delegation to the law firm of the city’s subpoena powers is unprecedented and inappropriate.

Chicago is seeking in the Cook County Circuit Court action to recover the cost to the city of filling medical prescriptions for which it is responsible and dealing with individuals addicted to opiate painkillers. The suit alleges the defendants overstate benefits and fail to disclose risks of their drugs and asserts claims for alleged civil conspiracy, fraud and violation of municipal law.

Related coverage: “Chicago sues 5 drug companies, says they pushed painkillers and drove up city’s costs”

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