CLEVELAND (Legal Newsline) - Optum Rx has moved to disqualify the prominent law firm Motley Rice from representing plaintiffs in pivotal upcoming opioid trials, saying Ohio ethics rules prevent the lawyers from using information they learned working as “special assistant attorneys general” for states in private litigation.
Motley Rice, like other big plaintiff firms, allied with attorneys general and municipal officials to pursue opioid lawsuits on a contingency-fee basis that have so far showered those private lawyers with more than $5 billion in fees. They are continuing with the litigation by targeting any company involved in the opioid business, from consulting firms like McKinsey & Co. to pharmacy benefit managers like Optum Rx, which play a middleman role between drug manufacturers and health plans.
The PBMs have taken an especially aggressive stance in multidistrict opioid litigation, including an October motion to disqualify the special master overseeing their cases on accusations of bias. U.S. District Judge Dan Aaron Polster dismissed their request, saying “no reasonable observer” could conclude Special Master David Cohen was biased after he mistakenly sent out an email saying upcoming bellwether trials “will show how much the PBMs knew (and they knew a lot).”
In its latest motion, Optum Rx said Motley Rice used the power of government subpoenas under contingency-fee agreements with Hawaii, the District of Columbia, Puerto Rico and the City of Chicago to obtain tens of thousands of sensitive records that detail Optum’s business strategy, refund agreements with drug manufacturers and other proprietary information.
“With that confidential information in hand as a roadmap, Motley Rice has turned to litigating opioid and other drug-pricing cases against OptumRx and other PBMs on behalf of various private and public clients,” the PBM said in the Dec. 15 filing. “OptumRx does not challenge the government’s authority to investigate, but it is unethical for Motley Rice to extract confidential information from OptumRx by wielding government power and then, after obtaining the information, to represent other clients in private litigation.”
Optum cited Ohio Rule of Professional Conduct 1.11(c), which prohibits lawyers with “confidential government information” from representing private clients suing the same party. Judge Polster already used that rule in 2019 to disqualify a former U.S. attorney who represented Endo Pharmaceuticals, Optum noted.
Motley Rice is part of a plaintiffs executive committee representing plaintiffs in four pending bellwether cases intended to guide litigation against the PBM industry, including by Rochester, Minn. It doesn’t matter whether Motley Rice is actually using confidential material it obtained with prior government subpoenas in this case, Optum said; Motley Rice partner Linda Singer and colleagues learned enough to be disqualified merely because they could use the information.
In the Hawaii case, Optum negotiated a confidentiality agreement that prohibits Motley Rice from using the materials to guide subpoenas or draft claims “in any other matters outside of its representation” of the Hawaii Attorney General. The firm cited several court decisions that also upheld the disqualification of lawyers who represented government entities and then went on to represent private litigants against the same defendants.
“Private lawyers who serve as government lawyers must play by the rules that apply to government lawyers,” Optum said. “Motley Rice’s lawyers have not played by those rules, so they must be disqualified.”
Motley Rice was one of the leading plaintiff law firms that earned billions of dollars in fees representing the states in lawsuits against the tobacco industry in the 1990s. Montana AG Austin Knudsen fired the firm from representing the state in opioid litigation in 2021 in part because of the law firm’s heavy support for Democratic politicians. Motley Rice is also active in PFAS litigation, where it is among several firms seeking almost $1 billion in fees out of a $13 billion settlement between 3M and public water districts.