The Georgia Court of Appeals today affirmed the dismissal of a lawsuit brought by Publix Super Market, Inc. against Cobb County, Georgia, which challenged the county’s decision to hire private law firms on a contingency fee basis to prosecute its opioid public nuisance action.
In a unanimous decision released Friday, the Fifth Division, composed of Presiding Judge McFadden and Judges Hodges and Pipkin, ruled that the lower court properly dismissed Publix’s complaint for declaratory and injunctive relief due to a lack of subject-matter jurisdiction.
Key Challenge: Contingency Fee Arrangement
Publix’s action, filed in Cobb County Superior Court in February 2023, sought a declaration that the county’s practice of engaging outside counsel on a contingency fee basis for the opioid litigation was “void ab initio” (void from the beginning).
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The Lakeland-based grocery chain, which was added as a defendant to the multi-district opioid litigation (MDL) in 2019, argued that the arrangement violated Georgia statutory law and the State Constitution, including provisions related to contracts, free legislation, and the Debt Limitation Clause.
Cobb County’s legal strategy, initiated in 2018, involved engaging three private law firms to investigate and prosecute claims against numerous opioid manufacturers and distributors. These firms agreed to represent the county on a contingent fee basis and advance all litigation costs. The county’s subsequent lawsuit was filed in the Northern District of Georgia and later transferred to the nationwide opioid MDL in Ohio.
Appeals Court Relies on Precedent
The Court of Appeals ultimately affirmed the dismissal, relying heavily on its recent decision in a similar case, Publix Super Market v. Rockdale County, decided in 2025. In the Cobb County ruling, authored by Judge Pipkin, the Court explicitly declined Publix’s request to reconsider or reverse its holding in the Rockdale County case.
The core of the Court’s ruling rests on the finding that Publix’s claims were nonjusticiable, meaning they lacked the requisite standing for a Georgia court to rule on the matter.
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No Actual or Justiciable Controversy
The Court analyzed the case under both subsections of the Declaratory Judgment Act, concluding that Publix failed to establish an actual controversy or a justiciable controversy:
- No Actual Controversy: For an actual controversy to exist, a party must have a right at stake requiring adjudication. The Court found that Publix’s suit was limited to voiding the County’s arrangement with a specific firm in a specific federal case to which Publix was a party. The Court concluded that Publix was not trying to “vindicate a public right” generally, but rather was focused on its status as a defendant in the federal opioid suit.
- Comity Concerns: Furthermore, the Court reiterated the comity concerns raised in the Rockdale County case, noting that the relief Publix sought would essentially require a state court to disqualify attorneys involved in a pending federal lawsuit, an action that strains the relationship between the two court systems.
- No Justiciable Controversy: The Court determined that Cobb County’s hiring decision did not put Publix in a position of “uncertainty and insecurity” that required judicial direction. The Court stressed that a declaratory judgment cannot be rendered on rights that have already accrued or are based on a “possible or probable future contingency,” such as future settlement negotiations. Granting relief under these circumstances would constitute an “erroneous advisory opinion.”
Because the claims for declaratory judgment were nonjusticiable, the Court deemed it unnecessary to review the trial court’s analysis regarding Cobb County’s anti-SLAPP motion or its motion to dismiss for failure to state a claim. Accordingly, the associated request for injunctive relief was also dismissed.
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