Most litigation involving local governments consists of the government defending itself from various types of legal claims, such as a tort claim or a claim of a violation of an individual’s constitutional rights.  For the last several decades, however, local governments have been plaintiffs in litigation seeking to affirmatively vindicate harms done to the public. In these cases, local governments often seek to enforce local, state, and federal laws that were enacted to protect their communities. Such cases have included issues related to opioid addiction, climate change, lead paint, PFAS, insulin prices, and others.  This trend is often referred to as affirmative litigation. 

 Larger cities, such as San Francisco, Chicago and New York, have in-house affirmative litigation departments within their municipal law offices.  San Francisco, in conjunction with Yale Law School, even published a practical guide to affirmative litigation for local governments.  States also engage in affirmative litigation.  Just this last December, New Jersey and Minnesota sued the gun manufacturer, Glock, demanding that it stop selling firearms that can be adapted to fire up to 1,200 rounds a minute.  Some smaller local governments have also gotten in on the action, including a recent lawsuit filed by the town of Carrboro, North Carolina against one of the country’s largest electric utilities, Duke Energy, over climate change issues. These litigation efforts have resulted in various degrees of success, but several have ended in settlements bringing hundreds of millions of dollars to local governments.

 The success of some of these previous affirmative litigation cases, and their large monetary payouts, which typically include significant legal fees for the plaintiff’s attorneys, have created a new market for this type of litigation. As a result, law firms across the country actively recruit local governments as plaintiffs in affirmative litigation matters.  Equally often, local governments are forced to decide whether to join a class action lawsuit settlement (whether they were a part of the original litigation or not).  In addition, new lawsuits are emerging where law firms recruit multiple government entities to serve as plaintiffs in order to challenge state and federal regulations rather than suing private businesses.

 Whether to join such litigation as a named plaintiff or as a member in a class action settlement is a policy decision for each local government.  However, it is critical that local governments consult with their attorneys prior to agreeing to join any such litigation.  By joining litigation as a named plaintiff or becoming a member in a class action settlement, local governments will be taking certain legal positions and even waiving certain legal rights, which may have significant consequences down the road.  It cannot be overstated how important it is to take the time to fully understand what those consequences might be in order to make an informed decision about whether to participate in the litigation or not. 

 Local governments should consider the pros and cons of being a party to affirmative litigation with an unbiased legal advisor, such as your regular legal counsel, rather than the attorneys seeking to have you join as a plaintiff. Those attorneys regularly have a financial motivation to have local governments join the litigation.  Take the time to gather information with an attorney not associated with the underlying litigation to ensure that you are making the best decision on behalf of your community.

 At the end of the day, joining the litigation might very well be in the best interests of your community and thus, a good idea.  However, making that decision blindly, without providing due consideration to pros and cons of doing so is certainly a bad idea.