Don’t Let The Sacklers Get Away With It

A Memo to the Supreme Court

The Supreme Court will hear oral arguments tomorrow morning about whether it should invalidate Purdue Pharma’s approved bankruptcy plan, the largest and most consequential in legal history. The elaborate $10 billion bankruptcy was approved in 2021 but is on hold at the request of the U.S. Trustee, the Department of Justice division that oversees bankruptcy cases. 

The question the Supreme Court must decide is whether the Sackler family, owners of the company that sold $35 billion of its narcotic painkiller, OxyContin, should be granted full immunity from all civil litigation because they contributed several billion dollars to the settlement.

The Sacklers are one of America’s richest families.  As directors of the privately owned Purdue, they carefully orchestrated and oversaw the aggressive marketing campaign that made OxyContin into a lethal blockbuster. No Sackler has ever gone bankrupt.  So why did the bankruptcy judge, Robert Drain, give them a free pass from all litigation, something meant to be available only to those who have filed for bankruptcy?  The Sacklers’ blue-chip law firms successfully argued that bankruptcy courts have expansive powers for creative outcomes (Judge Drain retired from the bench shortly after approving the Sackler deal in Purdue Pharma and went to work for Skadden Arps, a firm that was Purdue’s “special counsel” before and during the bankruptcy).

Purdue’s lawyers cited the precedent of a 1985 case in which A.H. Robins, the manufacturer of the Dalkon Shield contraceptive device, filed for bankruptcy. Plaintiffs had sued the Robins family owners, charging they had deceptively concealed evidence that the Dalkon Shield was dangerous. None of the Robins family had filed for bankruptcy. The court still discharged them from all liability. 

Proponents of the Purdue settlement contend that the court had to impose a global resolution, as unfair as it might seem, or otherwise litigation would drag on for years. That does not persuade any of the families of the victims of OxyContin overdoses, a crisis that has taken over half a million lives. I have spoken with dozens of them in the lead up to the Supreme Court hearing. Several advocacy organizations, and individual victims, will hold a “Last Chance for Justice” rally in front of the court tomorrow morning. Others plan to line up overnight to get seats in the Court’s public gallery in order to hear the hour-long oral arguments. 

The families whose lives have been upended by OxyContin believe that if the Supreme Court approves the Purdue bankruptcy, the Sacklers will benefit at the expense of all victims.

Upholding the legality of the Purdue bankruptcy plan will reinforce the common perception that individuals rich enough to take advantage of the legal system’s loopholes, can get away with the most appalling conduct. The Purdue bankruptcy will be the only major one in which no principal has faced criminal charges. Ed Bisch, a father whose son died from OxyContin twenty-two years ago, summed up the feeling of many others: “It was a bankruptcy scam from day one.”

At stake before the Supreme Court is much more than whether so-called “third party releases” are permissible under bankruptcy law. What is at stake is determining whether there will ever be an equitable accounting of responsibility for America’s prescription opioid epidemic. Justice requires at the very least that the Sackler family not be allowed to keep billions in OxyContin profits while walking away free from all legal liability.

The Supreme Court has a chance to do the right thing by the millions of Americans who have suffered a personal loss from the Sacklers’ addictive drug. There is still time for a measure of real justice for those responsible for creating the most deadly prescription drug crisis in American history.

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A Note to Readers: I have written editorials about the Sackler/Purdue bankruptcy fiasco in the Los Angeles Times, and twice in The New York Times. Here are the links for those interested in more information.

“The Sacklers’ Last Poison Pill,” The New York Times, with Jonathan Lipson, December 5, 2020

“The Sacklers Could Get Away With It,” The New York Times, with Ralph Brubaker, July 22, 2020

“How to Hold Purdue Pharma Accountable for its Role in the Opioid Epidemic,” Los Angeles Times, May 17, 2020