Purdue Pharma bankruptcy case allows the OxyContin family to walk away.

At any one time, NPR’s Brian Mann is probably following about a dozen legal proceedings—all of them seeking some kind of accountability for the opioid crisis. But none of them quite like the hearing he went to a couple weeks back.

What made it remarkable were the two dozen people giving searing testimony about the way addiction had upended their lives. “Bankruptcy courts don’t usually do things like this. This is not a normal thing in bankruptcy court to have victim testimony,” Mann said. “But as part of the agreement, three members of the Sackler family did agree to sit through it and listen as these families held up photographs of the dead and talked about what they’d lost. It was powerful and heart-wrenching.” One parent forced the court to listen to a 911 call that still haunts her. In it, she’d just found her son dead from an overdose.

To the people testifying, the billionaire Sackler family is a bunch of high-end drug dealers—executives who led Purdue Pharma as that company aggressively marketed OxyContin in doctor’s offices and hospital wards all over the country. This hearing was part of a settlement deal: The Sacklers have said they’ll give up control of their drug company, they’ll even cough up $6 billion dollars. In exchange: They want to be shielded from personal liability.  “A lot of people, including the U.S. Justice Department, have said, ‘Is that how justice is supposed to work? We don’t really think so,’ ” Mann said. “But these family members have been forced to live in this space for a long time, seeking justice, wanting some accountability. And at the end of the day, they think this is the best deal they’re going to get. They think this is the closest they’re going to get to justice.”

On Monday’s episode of What Next, I spoke with Brian Mann about what accountability in the opioid crisis would look like, with half a million Americans dead. And is this accountability at all? Our conversation has been condensed and edited for clarity.

Mary Harris: How did the Sacklers become the focus of so much anger from families and, of course, litigation too? When did that start?

Brian Mann: The Sacklers were brilliant at managing their image for a long time to distance themselves from opioids and from the main product that Purdue Pharma, their private company, made.

Yeah, I mainly knew them as the name on art galleries.

They were everywhere as one of the leading philanthropic families in the world. And there was also a very careful effort to—when they would talk about their wealth to the extent that they did, it was not connected to where all this money come from.

I want to be fair here and contextual here. There were a lot of people—regulators, law enforcement, doctors, pharmacists, all kinds of corporations—that were all part of this. The Sacklers and others were donating crap tons of money to create think tanks and endowed chairs and new medical wings. So everybody got pulled into this vortex. Everybody was making money off of opioids. Opioids were a great quick fix for a lot of medical problems. So, hospitals and doctors loved them.

But slowly, as the opioid crisis deepened, there started to be more and more reporting connecting the dots back to this company. As early as 2007, which is pretty early in the opioid crisis, the Justice Department had clearly figured out that this company was doing really dangerous things.

What do you mean when you say that? 

Basically what they said was you’re marketing opioids—this very addictive, very dangerous medication that probably should only be used in the most extreme cases—to doctors and to hospitals that they should give it out for relatively minor things. And you’re assuring them that this new formulation that you’ve created is far less addictive. And we don’t think the evidence really supports that. And in fact, as early as 2007, Purdue Pharma pleads guilty to federal crimes that they had marketed OxyContin improperly.

But what we’ve learned in the years since is that almost as soon as that deal was cut with the Justice Department, members of the Sackler family started pushing again for even more aggressive sales of opioids. This is after we knew people were dying. We knew addiction rates were soaring. They partnered with a consultant called McKinsey, and McKinsey promised to “turbocharge” their opioid sales.

After this agreement with the Department of Justice?

After this agreement, and so again, in 2020, 13 years later, Purdue Pharma pleads guilty again to federal criminal charges, admitting that they continued to market and push the sales of opioids improperly. And so this is a company that has twice pleaded guilty to federal criminal charges for pushing these very dangerous drugs during years when hundreds of thousands of Americans were dying.

At this point, thousands of lawsuits have been filed against Purdue Pharma, which has driven the company into bankruptcy. For the Sackler family, this bankruptcy has been an opportunity. As a condition of settling their company’s financial affairs, the Sacklers have demanded full immunity from civil liability for themselves. Even though the family is far from bankrupt.

Basically, the very simple way of thinking about it is that to use this maneuver, you find something that you can stick into bankruptcy that’s relatively disposable.

Like a company and assets, something that you can just get rid of.

In the case of Purdue Pharma, here’s this company that’s bankrupt and the Sacklers say, OK, yeah, the company is bankrupt. That ship is sinking. We’re standing over here safe on our island. And we’re also facing a wave of lawsuits that could swamp our island. Here’s what we’ll do: We’ll contribute x number of dollars to that sinking ship problem that you have out there. And in exchange for that, we’re immune. We’re no longer part of this at all. That’s the trade-off. You want a little bit more money out of that sinking ship? Fine, we’ll contribute. But then in exchange for that, we’re going to demand immunity from any lawsuits going forward.

Lots of companies and organizations have found that they can find something to throw into bankruptcy that’s relatively worthless. And then they contribute x number of dollars to that process. And their rich organization or their rich individuals or their rich family, in trade for that contribution, they get a clean slate. They walk away. And that’s what we’re about to see happen with the Sacklers. They’re at the finish line as we speak.

You say that the family’s never acknowledged any wrongdoing, but they haven’t been completely silent. I noticed that you were at a different hearing in December 2020 in front of Congress, where the Sacklers actually spoke. What did they say there when confronted by lawmakers about what they’d done at Purdue Pharma?

The narrative that they put forward is that they were ethical and lawful board members, and to the extent that Purdue Pharma has acknowledged criminal behavior, they say they were not aware of it. And there’s this remarkable moment when Dr. Kathe Sackler, who was on the board, said, basically, “Based on what I knew then, I don’t know what I could have done differently.”

What’s interesting is that when you hear her voice, she sounds reflective. That’s what stood out to me. It sounded like she really knew how to say the words, but it was hard to know if they were genuine.

It’s really challenging. I’ve been reporting on the opioid crisis now for several years, and I’ve listened to a lot of different corporate executives talk about their role in making decisions that just factually did flood the country with these highly addictive, very dangerous opioids. And I hear that tone of voice a lot. They’re clearly struggling with it to some extent, but at the end, there’s just this shrug—what could we have done differently? And I don’t know how to interpret it. I can’t get into Kathe Sackler’s heart, obviously, or the mind of all these other executives. But this resistance to accountability is profound.

And stepping back from what’s in their hearts and minds, we’re a society that locks up a lot of people for selling drugs, right? We put a lot of people behind bars for a long time for selling drugs. And the fact that we look at people in corporate America who sold massive quantities of drugs at times when it was clear that those drugs were devastating whole communities—the fact that there is no clear mechanism to hold them accountable, it raises questions that I just can’t answer.

Let’s talk about this bankruptcy settlement and what it might mean. If it goes through, it’s $6 billion. How is that money theoretically going to be distributed?

It has been structured in a really deliberate way to funnel the money into drug treatment and health care and harm reduction to actually ease the opioid and addiction crisis. There are very clear pipelines that will send the money to public health departments, to things like foster care programs in areas where so many parents have died or fallen into addiction that children need that kind of care.

And families themselves can apply for compensation, right?

There is about a $750 million fund that is compensation for victims. But it is important to say, and this has been controversial, that the lion’s share of this money is not going to victims of past addiction. The lion’s share will go to easing the crisis going forward and toward helping more people get treatment. A lot of the public health experts I talked to think this will move the needle. It’s not enough money to begin to solve it, but there will be more people getting care.

The good this agreement will do will be multiplied by money coming out of other, even bigger opioid settlements. In one case from over the summer, three other drug distributors reached their own deal to give up $26 billion—money that can make a real difference in people’s lives.

But there’s a dark side to this cash flow, too. In Purdue’s case at least, the money going to victim compensation will come, in part, from the continued sale of opioids.

Then, there’s the issue of the Sacklers themselves, whom many see as ducking accountability.

What a lot of people are saying is “Hold on a second. Wait. That’s not how American justice is supposed to work.” If I want to sue the Sacklers, I should get to go to court and make my argument. That’s what the Constitution promises me under due process provision, and what you’re saying as a bankruptcy judge is you can build a firewall around them—that’s crazy. Lots of people are really alarmed by that, including the U.S. Justice Department, which has declared this whole arrangement unconstitutional.

So there are big critics of this sacrificial animal process, but so far, it keeps making its way through.

I want to talk about that immunity and how far it goes, because at that hearing the other day, one of the people who testified was a criminal court judge, a guy named Bill Nelson, whose son died of an overdose. He seemed really frustrated that Richard Sackler wouldn’t show his face. But he also made the point that “I put drug dealers away with a single wrap of a gavel. And I do it without blinking an eye. And I wish I could do the same to you.” Why can’t there be criminal charges here, or why aren’t there?

In the paper trail of this long interaction between law enforcement and regulators and Purdue Pharma and the Sacklers, there clearly have been moments when the Justice Department and others have come up to the line and really strongly considered bringing criminal charges against at least some members of the family. That’s never happened. Instead, they’ve entered into these deals; they’ve secured payments from the Sacklers. It’s important to say that it’s very hard to hold corporate actors accountable for criminal behavior. You have to have really big smoking guns. You have to have very clear intent. The paper trail has to be almost unavoidably clear that some kind of criminal conspiracy happened.

And what seems obvious is that the Sacklers and Purdue Pharma have worked very aggressively to make sure that those charges were never filed. And also, when you look now at whether the U.S. Justice Department or a state attorney general might take on some kind of a criminal probe or a criminal prosecution, it would be a very big legal fight against a family that has very deep pockets to hire the best legal team in the country. And so far, that’s a windmill that no prosecutor has been willing to take on.

It sounds a little bit like they’ve been able to pay their way out of accountability.

That’s the obvious takeaway for a lot of people. The Sacklers are going to pay $6 billion in exchange for immunity from civil lawsuits. That’s a luxury that most of us cannot afford. And it’s clear that is what’s happening here: They’re going to pay for walking away.

And in terms of this controversial question about criminal charges, the Sacklers say, “We did nothing illegal, so you would be barking up the wrong tree.” But what others have said is that the Sacklers have managed this very carefully so that criminal accountability would be difficult to prove. And so I don’t think there’s a strong chance that they’ll ever face criminal charges.

You’ve covered so much of this opioid litigation all around the country. I wonder how you as a reporter come down on this moment on how these legal remedies work and don’t work for the victims. Because it sounds like the subtext of our whole conversation is that the legal system allows for all these loopholes and ways to manipulate a complicated system.

Yeah, it’s terrifying, honestly, because that clearly happened, and I’ve heard judges, I’ve heard victims, I’ve heard regulators all say the entire system here did fail, and in some cases it failed by design—lobbying of Congress, defanging the regulatory agencies, hiring former regulators to come work at higher salaries in these big pharma firms. There was this whole ecology where a lot of people made a lot of money and made their careers because this was just a profitable business, and they did that while more and more people were dying. And through this legal process, there have been reforms. There have been efforts to reach new agreements with the drug industry to tighten up their act and to get better. But the fact that this all happened out in plain sight—that everybody sort of let it keep going on, even as we saw more and more people dying—it’s not a pretty picture.

A really big question that I think about a lot is what is the next thing like this? If we allowed something this obviously destructive to keep happening year after year, what else will regulators look the other way over? What else will law enforcement decline to really lean in and prosecute because of powerful interests? It’s really scary.

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