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Caps on legal fees to private attorneys proposed by Senate majority leader

Senate Majority Leader Kim David answers questions from fellow senators Wednesday, Feb. 27, 2019 at the state Capitol. [Jim Beckel/ The Oklahoman]
Senate Majority Leader Kim David answers questions from fellow senators Wednesday, Feb. 27, 2019 at the state Capitol. [Jim Beckel/ The Oklahoman]

State agencies and officials would be prohibited from paying more than $10 million to outside attorneys for legal work in a case under a bill introduced by Senate Majority Leader Kim David.

The proposal drew immediate criticism from Michael Burrage and Bradley Beckworth, two of the private attorneys who assisted Oklahoma Attorney General Mike Hunter in his litigation against opioid manufacturers and distributors.

Their legal team has negotiated settlements totaling $363.75 million against opioid manufacturers. The team also won a $465 million judgment against opioid manufacturer Johnson & Johnson.

But Burrage and Beckworth said those outcomes would never have happened if David's bill had been Oklahoma law at the time.

"It couldn't have happened," Burrage said of the litigation. "The drug companies support that kind of legislation because it prohibits the state from getting counsel that can go to bat with them."

The legal team has been paid well for its work — $60 million for its work in a $270 million settlement with Purdue Pharma, $12.75 million for its efforts in an $85 million settlement with Teva Pharmaceuticals USA, and $534,300 for its role in an $8.75 million settlement with Endo Pharmaceuticals. The state's private attorneys haven't yet been paid in the Johnson & Johnson case, because the verdict is under appeal.

"The out-of-pocket expenses that we paid ... was over $15 million," Burrage said, adding those expenses included such things as taking depositions, travel and reviewing documents.

"If we didn't win, we didn't get anything," Burrage said, explaining that the private attorneys represented the state on a contingency basis so they would have been out that money if the state hadn't won its case or been successful in negotiating settlements.

Beckworth said the use of outside attorneys in the opioid litigation has been great for the state because it has been able to win a lawsuit and negotiate significant settlements without having to risk millions of dollars in upfront costs.

"The attorney general needs to be trusted to negotiate a good, reasonable contract, and that's what he did here," Beckworth said.

David, the Senate author, did not return a telephone call to her legislative office.

In addition to the overall $10 million cap on outside attorneys fees in a case, the bill proposes a series of other caps, as well, including a $1,000-an-hour limit on the amount a state agency could pay a lawyer.

Agencies also would be limited to paying no more than 15% of the first $10 million recovered, 10% of any amount between $10 million and $15 million, 5% of any amount between $15 million and $20 million, and 2% of any amount above $20 million.

Attorneys still would be entitled to be reimbursed for their costs and expenses.

Another important aspect of David's bill would require an agency to submit a copy of its proposed contract with outside attorneys to a legislative oversight committee for review in any case where it is anticipated that more than $1 million will be involved.

Agencies and state executive branch officials also would be required to submit any proposed settlement agreements totaling $1 million or more to the legislative oversight committee for approval or rejection.

The attorney general's settlement with Purdue drew strong criticism from a number of lawmakers because they weren't consulted prior to the agreement.

Alex Gerszewski, spokesman for Attorney General Hunter, said attorneys in that office are evaluating language in the bill and "plan to confer with legislative leadership after we finish that process.”“Overall, outside attorneys working on the opioid litigation have received around 20% of the total amount, which is a five-to-one return on revenue versus expenses," Gerszewski said. “It’s also important to note that none of the attorneys' fees are coming from the state. The attorneys are working on a contingency fee, meaning if the state doesn’t get any money, neither do the attorneys. And if we hadn’t filed these cases against these companies and pursued them aggressively, the state wouldn’t have gotten any money.”

Randy Ellis

For the past 30 years, staff writer Randy Ellis has exposed public corruption and government mismanagement in news articles. Ellis has investigated problems in Oklahoma's higher education institutions and wrote stories that ultimately led to two... Read more ›

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