Title
Dept/ Agency: Law
Action: (X) Ratifying (X) Authorizing ( ) Amending
Type of Service: Professional Services Contract
Purpose: Affirmative Litigation Legal Services
Entity’s Name/Addresses:
1. D’Arcy Johnson Day, P.C., 3120 Fire Road, Suite 100, Egg Harbor Township, New Jersey 08234
2. Motley Rice, LLC., 401 9th Street, N.W., Suite 1001, Washington, D.C. 20004
3. Law Offices of Eric Pennington, P.C., 1 Gateway Center, Suite 105, Newark, New Jersey 07102
Contract Amount: Contingency Fee
Funding Source:
Contract Period: September 28, 2017 through September 27, 2018
Contract Basis: ( ) Bid ( ) State Vendor (X) Prof. Ser. ( ) EUS
( ) Fair & Open (X) No Reportable Contributions ( ) RFP ( ) RFQ
( ) Private Sale ( ) Grant ( ) Sub-recipient ( ) n/a
Additional Information:
Authorizing the City to retain the legal services of two (2) law firms to help it affirmatively address the opioid crisis by investigating pharmaceutical companies and seeking to hold them accountable for their actions and misconduct.
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WHEREAS, the misuse and abuse of opioid pain relievers is a major problem in the United States; and
WHEREAS, the Governor of New Jersey recently announced that he is prepared to spend $200 million to address the opioid crisis; and
WHEREAS, certain pharmaceutical companies manufacture, market, and sell prescription opioid pain medications, under a variety of brand-name drugs including, but not limited to, OxyContin, Butrans, Hysingla ER, Actiq, Fentora, Opana/Opana ER, Percodan, Percocet, Zydone and Duragesic; and
WHEREAS, medical studies have shown that prescription opioids are narcotics because they are derived from and possess properties similar to opium and heroin, which are regulated as controlled substances; and
WHEREAS, although opioids can lessen the perception of pain, they also can create an addictive, euphoric high to the user. At higher doses, opioids can slow the user’s breathing, causing potentially fatal respiratory depression; and
WHEREAS, medical studies have shown that patients who use opioids continuously, tend to become tolerant to their analgesic effects, thereby creating a vicious cycle for patients, requiring progressively higher prescription doses thereby increasing the risks of withdrawal, addiction, and overdose; and
WHEREAS, many of these patients and individuals who have become and are dependent upon these opioids are Newark residents and City employees; and
WHEREAS, the Mayor and Acting Corporation Counsel are greatly concerned about the health, safety and welfare of its citizens, residents and employees who use and may have become dependent upon opioids; and
WHEREAS, the Mayor and Acting Corporation Counsel believe that the manufacturers and prescribers of opioids bear some responsibility in this nationwide crisis and specifically to the citizens of Newark; and
WHEREAS, the Mayor and the Acting Corporation Counsel desire to take legal action and hold the manufacturers of opioids accountable for actions that may lead and have led to the abuse, misuse and over-prescribing of these drugs; and
WHEREAS, Motley Rice, LLC (“Motley Rice”), 401 9th Street, N.W., Suite 1001, Washington, D.C. 20004, is one of the leading firms, renown nationwide, for aiding state and local governments in addressing the opioid crisis by investigating pharmaceutical companies and seeking to hold them accountable for the actions and misconduct that helped give rise to this crisis; and
WHEREAS, Motley Rice presently represents the City of Chicago in a similar action against pharmaceutical companies seeking to hold them accountable for their actions as it relates to the opioid crisis; and
WHEREAS, D’Arcy Johnson Day, P.C. (“D’Arcy Johnson”), 3120 Fire Road, Suite 100, Egg Harbor Township, New Jersey 08234, is local counsel known for its national investigations and its work with investigating prescription drugs that can prove harmful as a result of false and misleading claims by pharmaceutical companies; and
WHEREAS, both Motley Rice and D’Arcy Johnson (collectively “the Firms”), have substantial knowledge, familiarity, and experience with issues specific and unique to investigating pharmaceutical companies and prescription drugs, and have successfully handled these types of complex cases and investigations; and
WHEREAS, the Firms have submitted extensive proposals offering to provide the City with affirmative legal services to both investigate pharmaceutical companies and hold them accountable for their actions and role in the opioid crisis; and
WHEREAS, the opioid crisis affects the health and welfare of the citizens of Newark, its employees and individuals who work in the City, and it was found to be in the best interest of the City of Newark to accept the Firms’ proposals for the purpose of the City taking a pro-active stance in addressing the opioid crisis by investigating pharmaceutical companies and pursuing the appropriate legal action; and
WHEREAS, the Firms propose to enter into a contingency fee arrangement with the City, wherein the Firms shall only be entitled to recover fees, costs and expenses, as are incurred in the investigation and/or litigation, from any monetary recovery after (a) judgment or settlement from an award by a Court to be imposed upon the defendants (b) by agreement of the defendants, or; (c) some combination thereof. The City will not owe anything for costs, expenses or attorneys’ fees but the Firms may seek attorneys’ fees, costs and expenses from the Court or from the defendants; and
WHEREAS, the City agrees to pay, as compensation for the Firms’ services, twenty-five percent (25%) of all claims or recoveries from and against all sources; and
WHEREAS, the Mayor and the Acting Corporation Counsel wish to enter into a contract for legal services with Motley Rice and D’Arcy Johnson, for the firms to provide affirmative legal services in investigating pharmaceutical companies as their actions have caused, contributed and/or relate to the opioid crisis and holding these companies accountable for such actions and/or misconduct; and
WHEREAS, the Mayor and the Acting Corporation Counsel also wish to have the firm of Eric S. Pennington, P.C., 1 Gateway Center, Suite 105, Newark, New Jersey 07102, to function as local counsel overseeing, coordinating and assisting in matters between the Firms and the City; and
WHEREAS, this Contract is awarded without competitive bidding as an exception to public bidding, pursuant to N.J.S.A. 40A:11-5(1)(a)(i), Professional Services; and
WHEREAS, Local Public Contract Law N.J.S.A. 40A:11-1, et seq., requires a Resolution of the Governing Body authorizing the award of contracts for Professional Services and further requires that the contract itself must be available for public inspection; and
WHEREAS, the actions contemplated by this Resolution shall result in the award of a non-fair and open contract in accordance with N.J.S.A. 19:44A-20.5; and
WHEREAS, Motley Rice and D’Arcy Johnson have completed and submitted Business Entity Disclosure Certifications which certify that they have not made any reportable contributions to a political or candidate committee in the City of Newark in the prior year, and the contract will prohibit them from making any reportable contributions through the term of the contract; and
WHEREAS, the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.) requires that notice of the award of contracts for “Professional Services” without public bidding must be published in a local newspaper; and
WHEREAS, the Municipal Council adopted the Contractor Pay-to-Play Reform Ordinance, 6PSF-a, August 1, 2012, which forbids the award of a contract to a Business Entity, as defined therein, which has made or solicited political contributions to Newark Municipal Candidates, office holders having ultimate responsibility for the award of a contract; candidate committees of the aforementioned candidates; and political or political party committees of the City of Newark or County of Essex; and continuing political committees or political action committees regularly engaged in the support of the City of Newark municipal or County of Essex elections; and certain other political party or candidate committees, in excess of certain thresholds.
NOW, THEREFORE, BE IT RESOLVED BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY, THAT:
1. The Mayor of the City of Newark and his designee, the Acting Corporation Counsel, are authorized to execute a contract with Motley Rice, LLC, 401 9th Street, N.W., Suite 1001, Washington, D.C. 20004 and D’Arcy Johnson Day, P.C., 3120 Fire Road, Suite 100, Egg Harbor Township, New Jersey 08234, to pro-actively assist the City in addressing the opioid crisis by providing affirmative legal services in investigating pharmaceutical companies as their actions have caused, contributed and/or relate to the opioid crisis and to hold these companies accountable for such actions and/or misconduct, on a contingency fee basis, for the period of September 28, 2017 through September 27, 2018.
2. The Mayor of the City of Newark and his designee, the Acting Corporation Counsel, are also authorized to execute a contract with the firm of Eric S. Pennington, P.C., 1 Gateway Center, Suite 105, Newark, New Jersey 07102, to function as local counsel overseeing, coordinating and assisting in matters between Motley Rice, LLC and D’Arcy Johnson Day and the City on a contingency fee basis, for the period of September 28, 2017 through September 27, 2018.
3. The Municipal Council ratifies this contract for the period September 28, 2017 to the date of adoption of this resolution.
4. This contract is awarded without competitive bidding as an exception to public bidding pursuant to the provisions of the Local Public Contracts Law (N.J.S.A. 40A:11-5(1)(a)(i)), professional services, pursuant to the non-fair and open procedures of the State Pay-to-Play Law (N.J.S.A. 19:44A-20.5), and the Business Entity and its subcontractors have certified that they have not made or solicited any contributions in violation of the Contractor Pay-to-Play Reform Ordinance 2:4-22C.
5. A copy of this resolution and the executed agreement herein authorized shall be filed in the Office of the City Clerk by the Acting Corporation Counsel and shall be made available for public inspection.
6. A notice of this action shall be published in the newspaper authorized by law to publish a legal advertisement and as required by law within ten (10) days of the adoption of this Resolution.
STATEMENT
This resolution ratifies and authorizes the Mayor of the City of Newark and/or his designee, the Acting Corporation Counsel, to execute a contract with Motley Rice, LLC, 401 9th Street, N.W., Suite 1001, Washington, D.C. 20004 and D’Arcy Johnson Day, 3120 Fire Road, Suite 100, Egg Harbor Township, New Jersey 08234, to pro-actively assist the City in addressing the opioid crisis by providing affirmative legal services in investigating pharmaceutical companies as their actions have caused, contributed and/or relate to the opioid crisis, on a contingency fee basis, for the period of September 28, 2017 through September 27, 2018 and with the law firm of Eric S. Pennington, P.C., 1 Gateway Center, Suite 105, Newark, New Jersey 07102, to function as local counsel overseeing, coordinating and assisting in matters between Motley Rice, LLC and D’Arcy Johnson Day, P.C. and the City on a contingency fee basis, for the period of September 28, 2017 through September 27, 2018.