Victim advocates fear that bankruptcy will shield the drugmaker from justice, but they’re not giving up.
When news first broke last September that Purdue Pharma was filing for bankruptcy, many victims of the deadly opioid crisis, for which the company holds immense responsibility, believed there was reason to celebrate. The demise of the privately owned pharmaceutical corporation, the creator of OxyContin, had been the goal of activists, victims, and their families for well over a decade. For those familiar with the vagaries of bankruptcy law, however, it was immediately clear that the Chapter 11 filing was just the latest move by Purdue executives and its owners, members of the Sackler family, to evade justice and dodge accountability.
In filing for voluntary bankruptcy, Purdue was able to shield itself from the 2,600 federal and state lawsuits it was facing for its role flooding the U.S. with prescription opioids, contributing to the deaths of over 450,000 people since 1999. Purdue executives and members of the Sackler family were accused, in case after case, of misleading doctors and patients about the addictive nature of OxyContin, while amassing a multibillion-dollar fortune.
The bankruptcy filing invoked an automatic stay of civil litigation against the company. And while the billionaire Sacklers are by no means facing personal bankruptcy, they too have been granted a stay of litigation. If they get their way in court, as they are likely to do, the bankruptcy settlement could shield the Sackler family from all future claims — and influence whether they are subject to criminal liability, too. The full extent of Purdue’s — and the various Sacklers’ — malfeasance in knowingly creating a mass market in addiction could remain hidden in sealed documents.
The move to bury what should be a mass public reckoning in the opaque crevices of bankruptcy court typifies underhanded Sackler marketing practices. In response, those fighting for accountability have been forced to navigate a complex legal terrain in efforts to access even a shred of justice. Individuals who have suffered from opioid addiction or lost loved ones to the Sackler-produced crisis have until the end of July to file claims of wrongful death and “personal injury” — a gross legalistic euphemism — as creditors in the bankruptcy settlement. They should be entitled to resources far greater than the payout will offer.
“For many of us who have been in this fight for so long, the money means less,” said Barbara Van Rooyan, who has campaigned against OxyContin’s proliferation since her son’s death from taking a single pill in 2004. “The biggest asset they have is the truth.”
Van Rooyan joined with other survivors to form the Ad Hoc Committee on Accountability, a group of creditors seeking to use their participation in the bankruptcy case to push for the release of all of Purdue’s internal documents, both privileged and nonprivileged, alongside all communications between the Sackler family and the company. Van Rooyan shared with me a copy of her filing for injunctive relief in the settlement, which includes a demand for “the public disclosure of all Purdue Pharma documents including all documents that illuminate the financial and operational relationship between the Sacklers and Purdue.”
“For many of us who have been in this fight for so long, the money means less. The biggest asset they have is the truth.”
In 2007, when Purdue pleaded guilty to charges relating to the misbranding and marketing of OxyContin, Van Rooyan testified in the sentencing hearing. In her bankruptcy settlement claim, she noted that in that case, as in many cases against the company, “documents were kept hidden that would have changed the resolution of the case and most certainly the trajectory of the opioid crisis.”
For those who have suffered and lost loved ones in the years that followed, Purdue’s pattern of secrecy bears direct responsibility. “If I had known more at the time, my son might still be alive,” said Emily Walden, who lost her son in 2012 and now chairs the national coalition fighting the opioid crisis, FED UP! Walden is filing a wrongful death claim in the bankruptcy case and is also a member of the Ad Hoc Committee on Accountability.
Treating a corporation’s internal information as an asset that creditors can try to claim from the bankrupt company is a novel strategy and reflects the ingenuity these campaigners and survivors have deployed against the pharmaceutical leviathan over the years.
When Purdue’s internal communications have been released in the past, the contents have been damning for the Sacklers who held executive posts. A 2019 court filing against the company by the Massachusetts attorney general, for instance, cited a speech in which former Purdue President Richard Sackler boasted that “the launch of OxyContin tablets will be followed by a blizzard of prescriptions that will bury the competition.”
He was right: According to a peer-reviewed medical journal, “Sales grew from $48 million in 1996 to almost $1.1 billion in 2000.”
Only a few years after the drug’s release, evidence of its addictive properties — which the company would later be shown to have suppressed — began to emerge. In a 2001 email, which was also filed in court in the Massachusetts case, Sackler strategized about how to deflect blame for the drugs’ ill societal effects onto addicts — rather than have the company take any responsibility. “We have to hammer on abusers in every way possible,” Sackler wrote. “They are reckless criminals.”
The vile “blizzard” comments would inspired a protest at the Guggenheim Museum by the activist group PAIN, or Prescription Addiction Intervention Now, founded by artist Nan Goldin. Protesters snaked around the museum’s famed rotunda and scattered their own blizzard of fake Oxycontin prescriptions, each inscribed with quotations from Sackler’s communications with other Purdue executives.
PAIN recently turned its attention to helping victims file claims with bankruptcy court, while working to extract whatever public accountability it can from the process. But the arcane world of bankruptcy law provides a less fertile ground for public attention and outrage. “The Sacklers and Purdue bank on the complexity of these processes,” said Harry Cullen, an activist with PAIN “That’s part of the insidiousness of this bankruptcy.”
Goldin, herself a survivor of OxyContin addiction, emphasized the importance of extracting documentation in court. “For a lot of people, getting access to Purdue papers and documents is about making sure something like this doesn’t happen again in the future,” she told me. “For me, it’s also about the present. It’s about justice.” She said “the whole story” of what Purdue and the Sacklers have done needs exposure: “This is exposure of the American system.”
In the spring, PAIN launched its OxyJustice initiative to help victims and survivors file proof-of-claim documents with the bankruptcy court. This summer, the judge overseeing the case extended the deadline to file claims against Purdue from June 30 to July 30 — a minimal recognition of the disruptions caused by the coronavirus pandemic. As of late July, 61,000 personal injury claims have been filed — a drop in the ocean of the number of people harmed by Purdue’s decades of turpitude. In addition to individuals, creditors in the settlement include states, hundreds of counties, and cities, U.S. territories and other corporations.
A proposed settlement will not go far — the most recent operating report filed in the bankruptcy shows that Purdue has $1 billion. The Sackler family has offered to payout $3 billion in cash over seven years, a mere fraction of the amount they have made from the sale of OxyContin.
Other perverse details dot the proposed settlement. What remains of Purdue would be restructured into a trust and given to the plaintiffs. This “trust” would continue selling OxyContin to pay out claims, while reportedly committing to nonprofit research and development of anti-addiction, anti-overdose drugs. Ad Hoc Committee members are, unsurprisingly, demanding that Purdue be shut down. “I am outraged at the proposal that future sales of OxyContin fund part of the Purdue Pharma bankruptcy settlement,” Van Rooyen said in her injunctive relief claim. “This is the drug that ignited the opioid crisis.”
When the bankruptcy filing was announced, Steve Miller, who was brought on to chair Purdue’s board of directors when the Sacklers were sued, pitched the proposed settlement as a “unique framework for a comprehensive resolution” that would “dedicate all of the assets and resources of Purdue for the benefit of the American public.” As Ed Bisch, a founding member of advocacy group Relatives Against Purdue Pharma, who lost his son to an overdose in 2001, told me, “I know what we’re up against. Purdue plays chess while we play checkers.”
Around six months before Purdue filed for bankruptcy, its board of directors changed the company’s official address to White Plains, New York. The move put the case in the jurisdiction of Robert D. Drain, a bankruptcy judge.
In the first months of the case, Drain entered the injunction to shut down all litigation against the Sacklers nationwide, even though they are not themselves bankrupt. In February, the judge told the Department of Justice to stop taking a legal position that would interfere with the settlement deal; he said that giving immunity to the Sacklers was “the only way to get true peace.” In March, Drain told the attorneys general who had sued the family that getting in the way of a Sackler deal was “almost repulsive.”
It’s perhaps of note that in his 2008 vanity book, “The Turnaround Kid,” Miller describes participating as a corporate witness in a separate bankruptcy case — also in front of Drain, whom he described as “fiercely intelligent.” Miller wrote that he was so comfortable in Drain’s “modest chambers” that he took a nap.
It’s no wonder that legal experts, victims, and advocates have all stressed the need for an independent examiner in the bankruptcy case.
“When the facts come out, all the king’s horses and all the king’s men won’t be able to put Purdue back together again.”
In the all too likely absence of transparency and accountability in the bankruptcy process, survivors and advocates plan to seek alternative paths, including exerting further pressure on Congress to take investigative action. Mike Quinn, an attorney for the Ad Hoc Accountability Committee, pointed out that it was Congress, not the courts, that forced tobacco executives to testify under oath. “They could do it for the Sacklers,” he said. The House Oversight Committee and the House Energy and Commerce Committee have each launched investigations into Purdue’s activities, yet neither committee has held any hearings or published any reports. And as filings in the bankruptcy case have revealed, Purdue hired D.C. law firm WilmerHale to defend against congressional investigations. Legal bills also show that Purdue’s criminal defense lawyers are working with the Sacklers to protect their “common interest” against the Department of Justice.
“Whether civil, criminal, or legislative, Purdue and the Sacklers have positioned their lawyers at every juncture of justice,” said Quinn, “but when the facts come out, all the king’s horses and all the king’s men won’t be able to put Purdue back together again.”
There remains some hope that certain state attorneys general, who have thus far rejected Purdue’s bankruptcy settlement, will continue to push for legal action against the Sacklers. “My office will not be deterred in its lawsuit against the Sackler family, and will continue fighting to make this family pay for the death and destruction they inflicted on the American people,” said New York’s Attorney General Letitia James, in the wake of Purdue’s bankruptcy filing. Massachusetts has also vowed to seek further litigation against the family.
It is survivor activists, however, who have for two decades shown a readiness to deploy any number of tactics — from direct action to the nuanced trenches of bankruptcy law — to ensure that the Sacklers have no peace while their victims have no justice. Their fight will not end in bankruptcy court.