Pam Bondi’s opioid lawsuit? Some of Florida’s top lawyers won’t touch it

“I would never apply for that position or that task, and I don’t know any of the top-tier lawyers that would,” says one lawyer on the Big Tobacco case.
Florida Attorney General Pam Bondi gives her endorsement for Donald Trump during a rally for Presidential Candidate Donald Trump at the Tampa Convention Center on Monday afternoon, March 14, 2016., ZACK WITTMAN | Times
Florida Attorney General Pam Bondi gives her endorsement for Donald Trump during a rally for Presidential Candidate Donald Trump at the Tampa Convention Center on Monday afternoon, March 14, 2016., ZACK WITTMAN | Times
Published May 14, 2018|Updated May 14, 2018

Attorney General Pam Bondi has spent months searching for a law firm to take on the opioid industry.

But she's not getting any help from an 8-year-old state law that caps the fees for lawyers she hires.

Because of the cap, some of the state's top lawyers didn't bother to apply to represent Florida in a potential lawsuit against opioid makers and distributors.

"I would never apply for that position or that task, and I don't know any of the top-tier lawyers that would," said Steve Yerrid, a Tampa-based trial lawyer who was part of the "dream team" of lawyers who took on big tobacco for Florida in the 1990s, winning $11.7 billion for the state.

The 2010 law, pushed by then-Attorney General Bill McCollum, capped contingency fees for private lawyers hired by the attorney general at $50 million. It was in part a reaction to $3.4 billion that the dozen "dream team" law firms took home from Big Tobacco.

No doubt, $50 million is a lot. Only in the most extreme, complicated litigation would a team of private lawyers hired by the attorney general ever approach being paid that much.

But a potential lawsuit against the opioid makers and distributors is that kind of case.

Dozens of companies are accused of creating a heroin epidemic that has killed thousands of people in Florida and strained city and county resources across the state.

The companies are some of the world's largest, including Walmart and Johnson & Johnson, with pockets deep enough to hire the nation's best lawyers.

It's too large a task for Bondi's office alone, so she's seeking outside lawyers for help.

But she's been blasted by Democrats for waiting so long to even start looking. Already, hundreds of other cities, counties and states have joined a giant federal lawsuit being overseen by a federal judge in Ohio.

Bondi, who is in her last year in office, said Florida will file its own lawsuit, but she didn't accept bids from outside lawyers until January, quietly opening a two-week bidding process that ended Jan. 31.

Despite three months of looking over the bids, she still hasn't picked a firm. And her office last week could not say how many law firms applied, or which ones.

Some lawyers say the 2010 law has had a chilling effect, steering law firms to clients that don't have limits on contingency fees.

Florida-based Morgan & Morgan, a giant firm that operates in many states, is representing heroin-ravaged Kentucky in that state's lawsuit.

That firm also didn't apply to represent Florida. Attorney James Young, who used to work for Bondi and now works in Morgan & Morgan's Jacksonville office, said the main reason why his firm didn't apply was because of the potential conflicts of interest – his firm often sues the state and is against the attorney general's office.

But he said the fee caps "are a problem" and were a factor for them not applying.

McCollum pushed for the 2010 law in reaction to the billions won by the lawyers who took on Big Tobacco, mortified that the money wasn't going to the public.

But others saw a different motivation.

When the issue was being debated, legendary Pensacola trial attorney Fred Levin, a member of the Big Tobacco suit, called it "a PR thing" by McCollum, who was then running for governor. McCollum eventually lost in the Republican primary to Rick Scott.

Levin, whose name adorns the University of Florida School of Law, predicted it would have a chilling effect.

"You're not going to get the best lawyers to come in on a Dream Team where you've capped the attorney's fees," he told Florida Today in 2010.

The caps also packed a one-two political punch for Republicans: Trial lawyers tend to be big Democratic donors, and the Republican-supporting Chamber of Commerce has fought for decades to make it tougher to sue businesses, especially after the tobacco lawsuits of the 1990s.

The Chamber is now one of McCollum's clients, and he's gone around the country successfully convincing state legislatures to adopt the caps. They're usually packaged in legislation that includes rules requiring public disclosure of the contracts, as he did in Florida.

Sean Rankin, executive director of the Democratic Attorneys General Association, said the public disclosure requirements were a good thing. But the caps were an effort to undermine the justice system.

"The trend is that there is considerable money being paid to lobbyists like Bill McCollum to go into states, write the legislation, and hand it to Republican legislators," he said.

Among the states? Kentucky, which passed a bill months after hiring Morgan & Morgan.

McCollum, though, said $50 million is more than enough to attract talented lawyers while making sure the public keeps as much money as possible. He noted that the $50 million was on top of any expenses the lawyers incur.

And he pointed out that Ohio, which also adopted Florida's caps, had no trouble finding an outside firm and leading the wave of lawsuits against opioid makers.

"There's some really good law firms in Florida who could do this, and for the amount of money involved, I'm sure she's going to get some good candidates," he said.

He dismissed the concerns of lawyers, whom he called "greedy."

"I'm not sympathetic to the law firms," McCollum said.

Any lawsuit against drug makers would be very different from the Big Tobacco case. Then-Gov. Lawton Chiles assembled a team separate from the Attorney General's office and gave them free rein to go after the tobacco industry, which had gone decades without ever losing a case.

It was a monumental undertaking, with millions of pages of records involving more than a hundred lawyers.

Yerrid said their opponents had "unlimited power" and didn't have caps on lawyer fees. He said he remembered sitting in court one day, three lawyers on his side and at least 124 lawyers on the other — he stopped counting.

"When we took on Big Tobacco, they had most of The Breakers hotel (on Palm Beach) rented out," he said, referring to the pricey luxury resort.

He said he knows and likes Pam Bondi, but the private lawyers she hires will be working for her, not on their own, like they were for the tobacco case.

"What they're going to get are not the top-tier lawyers," he said. "Because the top-tier lawyers don't get regulated or overseen by government lawyers."

Yerrid has one message for her: "Good luck."