August 22, 2022 Legal Intelligencer / Law.com

By: Aleeza Furman

The pharma company’s petition raises questions as to who will lead the defense team in the matter, which has already been criticized as progressing at a slow pace.

Endo International’s Aug. 16 bankruptcy petition put a temporary pause on Pennsylvania’s coordinated opioid litigation, which lawyers have already criticized for its slow pace.

The bankruptcy raises questions as to who will lead the defense team in the matter going forward.

That’s in addition to the automatic stay on proceedings in the litigation’s four test cases, an automatic effect of Endo’s petition.

Endo attorney Rocco Imperatrice, with Lamb McErlane, served as liaison counsel for the defendants in Pennsylvania’s opioid litigation, which was coordinated before Judge Barry Dozor of the Delaware County Court of Common Pleas in 2018.

According to a Monday letter Dozor sent to attorneys on the case, Imperatrice notified the court that Endo’s bankruptcy required he withdraw from the litigation. Dozor thanked Imperatrice for his “very professional effort and attention to this extensive and complex litigation” and asked the defendant coordinating committee to file an emergency motion to establish new leadership.

Imperatrice declined to comment on the matter.

Imperatrice filed a notice of suggestion of bankruptcy and automatic stay on behalf of Endo on Aug. 17, advising the court of the Chapter 11 filing.

Plaintiffs liaison counsel Carmen Belefonte, an attorney with Saltz Mongeluzzi & Bendesky, said he expects the broader litigation to progress without too much added turbulence.

“We haven’t talked to anybody at Endo yet, but we hope to get an agreement to sever them out of the case so that we can continue on,” Belefonte said in an Aug. 19 interview. He said the plaintiffs expect Endo will go along with the plan to sever them from the case.

As for who will be serving as defense liaison counsel, Belefonte said he hopes Imperatrice stays on the case, but he said the choice of leadership will be a matter for the defendants to work out among themselves. Belefonte said he has no way of knowing whom the defendants would select or even if Imperatrice would step down from the role.

Attorneys representing a number of defendants in the litigation did not respond to requests for comment.

Attorneys with Skadden, Arps, Slate, Meagher & Flom handling Endo’s bankruptcy proceedings did not respond to requests for comment.

According to a press release from Endo announcing its bankruptcy, part of its restructuring support agreement includes efforts to address opioid-related claims against the company. “The company and a consortium of state attorneys general have agreed on certain injunctive terms relating to the sale of Endo’s opioid products, including with respect to promotion, funding/grants to third parties, and suspicious order monitoring, which will be presented to the court for approval,” the statement said.

Pennsylvania Attorney General Josh Shapiro is among the state lawyers to sign on to a $450 million settlement agreement with Endo.

Endo’s statement also said sales from a “stalking horse bid” selling its assets would fund a $550 million voluntary trust for opioid claims over 10 years.

In the meantime, while Delaware County’s opioid proceedings are stayed, Belefonte said he expects discovery to continue without Endo.

Attorneys involved in the litigation say the immense scale of discovery has contributed to its slow pace, which has prompted some plaintiffs to seek remand to their home jurisdictions. A June order set an end-of-year deadline for fact discovery, but the court has extended that deadline several times before.

Allegheny County has made the most recent attempt to avoid the Delaware County proceedings, filing an objection to a motion to coordinate its suit against Rite Aide and other pharmacy defendants. According to the filing, none of the suits in Delaware County’s coordinated proceedings have received trial dates or returned to their original jurisdictions.

An earlier opioid suit filed by Allegheny County has been stayed since its 2018 transfer to Delaware County, as have all other suits in the coordinated proceedings save the four test cases.

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