Thousands of cities and counties must decide today whether to remove themselves from an unprecedented class action brought against drug companies over the opioid crisis.

Two of the largest counties in the nation, Florida's Palm Beach County and Harris County, Texas, announced this week they would opt out of the so-called negotiation class, a master case designed to reach a potential global opioid settlement of all lawsuits against drug companies and pharmacies. Judge Dan Polster of the  U.S. District Court for the Northern District of Ohio, who certified the class in a multidistrict litigation proceeding involving 2,400 lawsuits, set a Nov. 22 deadline for cities, counties and other governments to decide whether they would like to opt out.

As many as 33,000 governments could participate, even if they have not filed opioid lawsuits. If they do not opt out, cities and counties would be part of the class.

The "negotiation" class is "really a terrific vehicle to try to bring closure or develop a structure for closure," said Jayne Conroy, appointed earlier this year as interim co-lead counsel for the class. "We're very bullish of the concept of the negotiation class, because it's a viable option here."

Some cities and counties, however, have chosen to opt out of the negotiation class. Harris County Attorney Vince Ryan announced this week that the county, which includes Houston, would pursue its opioid case, filed in 2017, on its own.

"Harris County should not be bound by a settlement negotiated by others," Ryan said in a statement. "We believe that our judge, our county, our juries in Harris County have the right to decide the fate of this lawsuit and should be the ones to do so."

He added that Harris County was not one of the 49 class representatives in the master case and that its outside law firms were not among those chosen to serve as lead counsel for the class. Those firms, all in Houston, include The Gallagher Law Firm; Fibich, Leebron, Copeland & Briggs; and Dan Downey, a former Harris County state district judge.

Pegi Block, assistant county attorney for Harris County, also pointed to the estimated share that the county would get, should there be a settlement. Lead counsel for the class used a hypothetical $1 billion settlement to calculate an estimated dollar figure for each government. Under that formula, which is available at www.opioidsnegotiationclass.info, Harris County would get about $5.3 million, or $1.25 per resident.

"The dollars are not fair," Block said. "The formula does not take into account costs and expenses we've incurred from the opioid epidemic. It will not provide the relief we would need."

Among those expenses are jail costs, she said.

Harris County is not alone. Palm Beach County, which includes the Florida cities of West Palm Beach and Boca Raton, also voted to opt out this week. Palm Beach County, represented by The Ferraro Law Firm in Miami, and Napoli Shkolnik and Stull, Stull & Brody, both in New York, filed its opioid lawsuit in 2018.

Under the class formula, Palm Beach County would get $4.7 million, or $3.50 per resident.

Others have voted to participate in the class action. Eric Romano, of Romano Law Group in West Palm Beach, Florida, represents 30 cities and counties in Florida, including Orange County, which includes Orlando. He said the class action was the best opportunity to reach a settlement.

"All of our clients have decided to remain in the negotiation class," he said. "And I think the reason for that is they had simply decided there is power and strength in numbers and decided they felt the best route for them to maximize the results for their respective communities would be for them to remain part of the negotiation class."

He said that lead counsel for the class used "appropriate criteria" to come up with estimated dollars that "take into account the impact of the opioid crisis within each community."

Last month, a potential $48 billion global settlement fell apart after lead counsel in the multidistrict litigation, most of whom represent cities and counties, would not agree to the deal, hammered out by attorneys general in the states of North Carolina, Pennsylvania, Tennessee and Texas.

The "negotiation" class is novel because it comes prior to any settlement but, also, is not for pursuing litigation. In most cases, judges certify class actions under those two circumstances, but lead plaintiffs lawyers in the opioid multidistrict litigation insisted that the proposal fits within the confines of the Federal Rule 23 of Civil Procedure, which governs class actions.

The idea has faced criticism—most notably, from several state attorneys general and the defendant companies themselves. They petitioned the U.S. Court of Appeals for the Sixth Circuit to reverse Polster's Sept. 11 order certifying the class, calling the "negotiation" class an "unauthorized expansion" of Rule 23.

The Sixth Circuit agreed to take up the interlocutory appeal earlier this month.

The circuit court also took up a separate appeal by six Ohio cities challenging the "negotiation" class approval because it failed to give governments a second opportunity to opt out should the lawyers reach a settlement.

Conroy, of New York's Simmons Hanly Conroy, said no defendant has to participate in negotiations with the class. Also, governments within the class would get to vote on any proposed settlement prior to approval.

"We're not envisioning any additional opt outs, because that's what the voting is for," she said. "There would be a determination by class counsel whether or not a settlement was even in the interests of the class."

So far, the "negotiation" class has the support of some significant governments. The class representatives include major cities such as Atlanta, Chicago, Denver, Los Angeles and San Francisco. Conroy also noted that the city of New York and Cook County, Illinois, which includes Chicago, are staying in the class.

She said she expected to know the total number of opt outs, sent via email, or U.S. mail, within a week.