Supreme Court blocks controversial Purdue Pharma opioid settlement

The problem is that this sets an ugly precedent. The bankruptcy settlement is basically "I can make a deal with A that takes away your ability to sue B, even though I wasn't suing B and you are". It makes no sense. The dissenting opinion is the epitome of "fuck you, I got mine."

Suppose we discover next year that one of the RNA covid vaccines causes cancer with 100% probability. The vaccine maker, on the hook for trillions of dollars of damages with no possible way to pay, declares bankruptcy (victims get approximately nothing). Elon Musk steps in and offers to contribute 20 billion dollars to help compensate the victims who would otherwise get nothing. All he asks is that the bankruptcy court dismiss all claims related to his pay package, stock manipulation and libel on twitter. The victims overwhelmingly approve the settlement and the judge oks it. After all, bankruptcy judges have wide discretion and $20 billion is better than $0.

Is that ok?

In my analogy, Elon Musk (and most of the people suing him) are not related to the vaccine maker (but there could be overlap among some of the plaintiffs and Musk could own some shares of the vaccine maker). But, technically, the same is true with Purdue Pharma, the Sackler family and plaintiffs. Yes, the Sacklers are more closely related to Purdue than Musk and the hypothetical vaccine company, but that's just a matter of degree.

In the Purdue bankruptcy, the victims of Purdue voted (and the court agreed) to take the Sackler's money and in exchange prevent anyone at all in the United States from suing the Sacklers about anything at all related to opioids. Even people who are not eligible to be members of the Purdue bankruptcy settlement cannot sue the Sacklers!

If the Sackler settlement was allowed to stand, it effectively allows billionaires to buy their way out of liability for unrelated things if they donate some money to sympathetic victims. All they would need to do is create some degree of nexus between themselves and the entity declaring bankruptcy, sufficient for a bankruptcy judge to ok the settlement.

> Can you imagine a member of Congress or the President saying this?

Yes.

> We have those overseas money reporting laws that make it difficult for Americans to get bank accounts overseas. Let's use them!

This is conflating two things.

It is not criminal to move money offshore, and nothing suggested any money laundering occurred, because it is not necessary to launder money to move it offshore. And it is also not money laundering to obfuscate money's origin or destination. Money laundering requires a criminal origin and then obfuscation.

Despite how much the US has convinced its entire culture to stigmatize the concept of moving money, the US is operating in its own bubble of hubris to suggest money has to stay within its ecosystem. It doesn't make any sense at all when you say it out loud does it?

To your second point, the US has reporting laws on money held offshore legally, for US citizens. For banks, this is merely an additional compliance burden that disincentivizes them from dealing with small accounts because its not worth it. But at Sackler money, it is worth it. It is not hard to find someone to bank you as an American. And at Sackler levels of money you don't have to remain a US citizen, hence absolving the reporting requirements if they went that direction.

Or when you have a second citizenship, you can just not tell the US about it, and you can just not tell the foreign bank about your US citizenship. Prosecute that on its own, if you find out.

and finally, there are gaps in this reporting framework. FATCA treaty was a broad expansion of a country's power, to the limit of our global society in the continuum of history. And its not completely as omnipresent as the American psyche imagined. Just like the global sanctions attempt on Russia showed, its a nice try but now everyone can see how much is hubris in plain sight.

- the foremost among the perpetrators are dead

- the rest of the family is culpable, but less so

- the settlement money will now be entirely repurposed for legal defense

- meanwhile the victims get nothing

Does justice demand punishment or compensation?

definitely. The 2012 STOCK Act is routinely violated by members of congress who insider trade on information from congressional committees before laws are enacted. that money the openly argued about the legitimacy of in congress and Pelosi, for one, and Tommy Tuberville, for another argued that it should be allowed. Pelosi later changed her stance, but continues insider trading. you can find datasets for all this at (no relation...just interesting data) https://quiverquant.com

But that's kind of the weirdness of all of this - at no point was OxyContin itself banned or been made illegal.

Otherwise, I find your analogy helpful and illustrative of my confusion. Here is the simplified analogy:

1. Scrooge owns a nasty taco truck that makes everyone sick. He runs to the bahamas and is gone. 2. A dozen customers take it to bankruptcy court and get ownership of the taco truck and Scrooge's "charitable" donation, but Scrooge would get immunity, and so would the taco truck. 3. Meanwhile, the victims that weren't in the settlement are outraged that Scrooge might be immune. Not everyone was a part of the first suit -- plus, the taco truck is still selling tacos, and people are still getting sick!

This illustrates my confusion.

To me it seems like we should shut down the taco truck, and not give it immunity. I'm kind of a utilitarian and I don't much care about Scrooge, though I wish I could take his money away and put him in jail.

But it seems like most of the people who are mad about the diarrhea are not talking about the taco truck's continued operations and immunity??? And they are chiefly concerned about Scrooge, who is no longer involved with the taco truck??? What gives?

Oxycodone is routinely and safely administered right now, to tens of thousands of people, every day. But this is kind of like, an FDA question, no?

>I don't understand people who think the Sacklers are villains who destroyed lives, but Purdue should continue operating more-or-less as-is. Which is, I think, the conclusion from this settlement. If this is you, can you help me understand? Do you think there is/was a realistic way to prescribe opioids routinely and safely?

As GP noted, that is not the conclusion of the settlement - not even close. If you want to better understand comments on this page, perhaps reply to them asking for clarity?

Any? Can I sell my kidney?

You are arguing an extreme minority opinion, consumer protection laws exist because it is not possible for an average consumer to understand all safety implications of vehicle design, house construction or a medical procedure.

That's pretty reductive, right? Well so is what you are saying.

No. There are many legal and bad things.

Laws are a boundary, that few of us need.

Laws are not a target

"The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy" (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2622774/)

"The Family That Built an Empire of Pain" (https://www.newyorker.com/magazine/2017/10/30/the-family-tha...)

This is a nice idea, but most Oxycontin is not prescribed by someone's doctor (it is prescribed by a doctor, but it is power-law distributed, most of it is sold by dealers). There are a small number of doctors in the country at any given time that prescribe almost all of the supply. This is not something you can readily fix with responsibility at the doctor level. It may seem like you can, because you could just prosecute "those doctors", but the problem is that the incentives are too concentrated.

That isn't to absolve these individuals of responsibility. They are responsible, and we should prosecute them legally. The problem is that we already do and always have. We should keep doing it, but I don't expect it to fix anything.

EDIT: To be clear I'm not necessarily for or against this settlement. There was a time that we might have stopped the opioid crisis at the corporate or pharmaceutical level, but that time has long since past. We could criminalize all opioids tomorrow and it would make almost no difference. Most opioid addicts use fentanyl now, and most fentanyl is produced/sold illegally. Heroin, for instance, has been Schedule I forever - the only thing that reduced its popularity was a cheaper substitute in fentanyl.

If we are going to bother prosecuting or civilly charging Purdue or its principals, it would have to be for purely punitive reasons. Corporate behavior unfortunately does not matter anymore.

Is this really what the question was about? Reflections on a personal experience? Those are perfectly valid concerns. Nobody is stopping you from asking any of the professionals you interacted with about addiction, if you are worried, go and ask!

> Follow-up Q for you. What is the realistic way to prescribe opioids routinely and safely?

The simple answer is "less and with better monitoring". The first half of that was the equilibrium that Purdue intentionally shifted in the medical establishment. The cascading effects of that are what caused the modern day opioid crisis. Unfortunately, the modern-day opioid crisis as I understand it is mostly no longer related to pharmaceutical availability. So, while we should improve and lock down that supply chain route, unfortunately I don't expect it to make a large dent in the overall problem.

> Are there certain formulations that have been or should be removed from the market?

Take-home fentanyl is probably unnecessary, but again, I wouldn't really expect this to be a silver bullet. The DEA/FDA has gotten much tighter on their prescribing rules for powerful opioids, but their doing so has largely coincided with the expansion of the illegal heroin, and then fentanyl markets. It is now too late to fix by choking off supply, because the market has mostly moved outside of the regulatory regime (though we should still do that, to the extent we can).

> How do we reinstate the taboo on prescribing them?

These answers keep getting worse but we largely already have. We could probably do more, but if you are an MD and you are not "opioids are dangerous actually"-pilled, I think you need to go back to medical school. There was a short period in the mid 2000s where doctors were convinced otherwise by Purdue among others. Doctors who "think otherwise" today are almost without exception just outright criminals.

> For EG: I got a vasectomy recently and was told to expect a day or two of pain. I was prescribed a month's supply of opioids without a single comment from the doctor on their addictive nature. My understanding is that this is how people get introduced to opioids; the pathway goes "legal scrip -> addiction -> illegal supply -> fentanyl -> death" and that's the engine of the epidemic.

Overprescription like that (which that definitely is) is bad and unfortunately common. It's hard to say exactly how much addiction is caused by that variety, though. Most serious opioid addictions that I am aware of didn't get that way from a one time moderate overprescription of things like Vicodin or Percocet. It is possible to get "mildly" addicted from a month's supply of that and when you run out you might have a slightly unpleasant day or two, but not worse than that. If the illicit market wasn't there, that 30 day supply would be the end of any binge, and that would be "mostly fine", as such. That is not an endorsement or to say that it is at all a safe thing to do, but the risk comes primarily from not wanting to quit when you run out, and having other options available.

Two things changed with the introduction of Oxycontin:

1. It started being prescribed for chronic, not acute pain. This meant that people had permanent, ongoing prescriptions for them. Which meant that people built up a very large tolerance, which led to..

2. Oxycontin is pure oxycodone, it is not formulated with an NSAID (like Percocet is). The presence of an NSAID limits the amount you can take before you get sick, and prevents you from (straightforwardly) consuming it via non-oral routes of administration, which is exponentially more addictive.

> Should it be legal for the doctor to prescribe pain meds like this? (Or, should it be legal but discouraged? Is there a well-understood way to do this?) If it should be legal, should we expect the epidemic to continue? And if so, is post-bankruptcy Purdue a good thing or a bad thing?

Legal but discouraged, definitely. They are an important tool in the treatment of acute pain. They can, more rarely, be an important tool in the treatment of chronic pain (cancer / chemotherapy being a good example of a sufficiently serious condition). And finally, they are absolutely worthwhile for palliative care. For these reasons and what is now the magnitude of the illicit market, I don't think there is a lot of value in a total restriction.

I didn't get anything after mine. I nearly fainted outside the clinic waiting to be picked up when the feelings all suddenly caught up with me.

I don't entirely disagree with you, but I have also seen enough people stop, who probably wouldn't have if that were the typical treatment, to be pretty cautious about that. There are a number of promising addiction treatments in the wings at the moment, in particular Ozempic and the general GLP-1 agonist class.

Transitional opioids like Buprenorphine are fine as a detox strategy, and maybe even fine for the medium term, but committing to them for life I think is a mistake (in most cases).

> The problems stem from putting unreasonable obstacles between adicts amd their appropriate treatment. Practical legal and financial obstacles, sadistic legal obstacles, and bizarre moral obstacles

There is a lot of truth to this. It is, in fact, what I used to say when I used them. And it is and remains true. It is also true that prolonged opioid use is mostly physiologically harmless (overdoses notwithstanding). However, there are psychological elements that come with long term use that these measures do not capture, and are not fully internalized by the transaction costs (or literal costs) associated with obtaining them.

> Nineteenth century society managed it with laudinum

Ask China why they fought that opium war, and how they feel about such things lately. They are still mad about it.

> The Sacklers are, were, parasites profiting from that social malaise and bad things will finally happen to them. But the cause of the malaise is our irrational attitude to drugs

Agree on the Sacklers although personally I'd place more blame on the McKinsey consultants that wrote the original deck that proposed the strategy. I don't know how much the Sackler individuals personally made these decisions, but those people certainly did.

Re: irrational attitudes to drugs, I agree, but the situation is substantially more nuanced than it might superficially appear. Laudanum did used to be over the counter, as did cocaine among other things. However, these things were not criminalized for no reason - heroin wasn't criminalized in the 60s/70s anti-hippie craze, or for racist reasons in the 1930s (like marijuana).

Heroin was first criminalized for over the counter sale in 1910 - 15 years after Bayer first marketed it. Easily the fastest criminalization of a novel pharmaceutical compound in the history of the world. This is not an accident or a product of some temporary social hysteria. And unfortunately, it was also not criminalized because all of its harms were due to its being illegal.

If criminality were the problem we would expect things to get better, not worse, with the introduction of fentanyl which is far cheaper and more readily available. I could be misreading the data, but that does not seem to be working out.

Source?

It’s harder because they’re indemnified by Purdue, and their individual liability is far from established. (The opinion and dissent both refer to a monolithic “Sacklers,” but they’re individuals and trusts and whatever.)

Only if suitors were going against Sackler assets to pay off Purdue corporate stuff.

And as the dissent notes, this class includes the Sacklers per their 2004 indemnification agreement. So we first need to nullify that to avoid draining.

Don't blame the victims.

The $6bn ruling was significant and not an amazing outcome for either side (so, a compromise).

Additionally most of the Sacklers are well into old age, so they'll probably die before losing $6bn.

They never gave up any cash to my knowledge. The plan was a promise.

We can conclude the Sacklers are worse off right now given they (and the creditors) accepted the deal. They may be materially better off in the future. But the rest of their lives will be about this.

IMO the money is a pittance, sounds like a lot but it's just a fraction of what the federal government spends on any given day. We can afford to carve out the financial resources to help victims. The retribution is totally worth it, because it needs to be understood that behavior like this will get punished. It should be painful, not just the cost of doing business.

Thanks for the correction! I must have read about Washington States objection a while ago, and been unaware of a change in their position (since I first read about it)

> In a 5-to-4 decision, written by Justice Neil M. Gorsuch, a majority of the justices held that the federal bankruptcy code does not authorize a liability shield for third parties in bankruptcy agreements. Justice Gorsuch was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Amy Coney Barrett and Ketanji Brown Jackson.

> A number of trials were conducted by the Chinese government resulting in two executions, three sentences of life imprisonment, two 15-year prison sentences, and the firing or forced resignation of seven local government officials and the Director of the Administration of Quality Supervision, Inspection and Quarantine (AQSIQ). The former chairwoman of China's Sanlu dairy was sentenced to life in prison.

Yeah, that sounds nice :-)

The only way the victims actually see any money is through civil litigation.

And here's the language: "any other appropriate provision"

The Sacklers: the law says we can take away other people's rights to sue us as part of a bankruptcy settlement.

SC: Yeah, no, the text doesn't say that.

Tobacco has been treated as a crisis, and I have no doubt that if cigarettes had been invented by one specific family, that family would be hated.

Weird that you don’t know any of this.

Always the drug dealers fault.

I blame the patient. We've known opiates were bad since at least the 1800s, and really longer than that. What the doc said was just what they needed to hear to lie to themselves, but this is taught in every highschool.

I know some of them were drug-seekers but we decided it was OK to throw chronic pain patients under the bus so we could eliminate those drug-seekers.

Now, in addition to dealing with pain every day, I also have to “prove” that I’m not an opioid seeker if I end up in the ER for overwhelming pain. Because saying that you’re hurting is clearly a sign that you’re actually an addict trying to get a fix.

This might sound cold-hearted, but as someone who deals with chronic pain I’m fine with some street ODs in exchange for people who are in pain being cared for. Now we just torture patients by doing nothing.

Recreational drugs are a choice. My pain was not. Why we punished for others’ bad choices?

This combination or larger dose followed by mild withdrawal then results in a higher likelihood to become addicted to opioids. So not only they marketed it heavily and got more people on opioids than necessary, they did it in a way that maximizes the likelihood of addiction.

https://www.latimes.com/projects/oxycontin-part1/

"man you got nothin', you should get some oxy for that!"

I'd been living outside the US and this in my first few hours back on US soil. A few hours later my friend (working in criminal defense) explained how opiates accounted for roughly 1/3rd of his income (other sources: drunk driving and domestic abuse). They all followed the same trajectory: minor condition -> prescribed oxy -> illegally obtained oxy -> heroin when the money ran out.

This wasn't normal. It didn't happen anywhere else in the world at the time, or at least not where I was living.

In this case in particular, if memory serves, they were advising the FDA in parallel, and leaking information to the Purdues. No brain-dead 24yo Harvard grad did that.

I would not give them any slack.

It's sort of a different class of failure than with opioids, but it is a notable area of weakness. Basically, for OTC drugs that were initially approved before 1962, many are still on the market despite sometimes having weak efficacy data. While the FDA has been making some progress in reevaluating these older drugs, we're still far from where we should be.

A few quotes from the conclusion of the article (but the entire piece I linked in SA is worth a read!):

> In 2023, 16 external experts on the second Nonprescription Drug Advisory Committee looked at all the evidence compiled by FDA staff, heard manufacturers' arguments in favor of oral phenylephrine's efficacy, and heard from experts like me who argued that oral phenylephrine is ineffective. In the end, they concluded that oral phenylephrine is not GRASE. A final ruling on whether decongestants containing the drug can still be sold will take time. We hope science will prevail.

> From this experience we've learned that the monograph process for OTC drugs approved before 1962 needs to be reexamined. Systematic reviews of the available evidence indicate that other nonprescription drugs such as guaifenesin (sold in Mucinex and Robitussin), dextromethorphan (sold in Robitussin DM) and antihistamines marketed for colds (for instance, chlorpheniramine) probably don't help with coughs and colds. They are usually not dangerous, but their effects are likely to be the result of a placebo response; more modern research is needed.

> The outcome for oral phenylephrine shows that the FDA needs more funding to look at old drugs. We need public funds to support independent researchers who want to examine these products objectively. The government should be able to spend millions to save consumers billions on ineffective products. Companies that market these products have no incentive to prove they don't work. Nonprescription drugs must be effective, not just safe.

They appear to have left the oversight up to two individuals - ones with whom there was an obvious quid-pro-quo [1]. It's a stain on the agency and they should take responsibility and make changes.

[1] https://journalofethics.ama-assn.org/article/how-fda-failure...

Another thing the dissent pointed out is that anyone who doesn't participate in the group settlement is only going to get the money first-come/first-serve. In bankruptcy court you can split the money more or less evenly. If everyone litigates separately, only the people with more senior claims get their money before the funds run out.

As far as purely pragmatic solutions go this was not a bad deal for victims. There are a lot of members of the Sackler family and a lot of them have a lot of money despite personally not being connected to the Purdue business in any way.

Even if they could all be connected to wrongdoing actually getting money from, like, the second step-grand-nephew who lives in Copenhagen is going to be really, really hard.

Because the pharma company offered them direct or indirect benefits for doing so. Doctors are just as human and just as susceptible to financial incentive as anybody else, that's why for decades there were doctors advertising the health benefits of smoking.

They also don't have time because of the artificial limits of physicians graduating every year, combined with more bureaucracy being pushed on them day by day

And our unequal society forces a lot of people to damage their bodies in the pursuit of happiness (i.e. earning money). That damage becomes chronic pain.

And unfortunately, painkillers often have a euphoric effect. So people might use that effect to escape the grinding reality that they are trapped within. Consider how popular cannabis is, especially among older adults in states where recreational use is legal.

The opiod manufactures are organized too. They have trade groups and conferences.

Doctors pretty much need to be intelligent and hard working to get through med school and residency. After that, they might not necessarily keep up with things. You'd think oncologists would know the best treatments for each patient, but if that were true those ads would be worthless - and I doubt those companies like to throw money away.

An amazing read and I also highly recommend it

https://en.wikipedia.org/wiki/Empire_of_Pain

The opioid crisis was really defined by people with chronic long-term pain being given it for years at a time.

You can still bring an 18 USC 666 case for bribery, you just need to prove that the payment had some ability to influence the official act.

Honestly though, for as much flak as this current court gets, there is at least a certain consistency where they at least mostly stick to arguments about the letter of the law. In previous courts you would see some truly wild written arguments about how, like, a specific word in the Commerce Clause or whatever could mean whatever you wanted it to.

As detestable as I find the outcome, Roe v. Wade built a right to privacy out of whole cloth where none existed before, and whether that was good law has been hotly debated ever since it was decided (https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?ref...). It's within the purview of SCOTUS to go "This was bad lawcraft done by our predecessors, and we reverse it based on this reasoning..."

We can disagree with their reasoning, but my main point is you rarely see a ruling from SCOTUS that is nakedly "Because I said so," even though that's de facto the power they have. The initial Roe decision was shaky. "That was a shaky decision, so we have reversed it" was at most equally shaky. It's hard to argue that one is well-reasoned and the other not (though I think there's room to disagree on what facts the two Courts considered).

(The other source, to my eyes, of questions of legitimacy is that the appointment of three judges in a narrow amount of time under one party's dominance of Congress and the Presidency has fundamentally shifted the "flavor" of the way the Court interprets law. Rather than bringing their legitimacy into question, that's rather the point of the process by which the US appoints Justices and the length of their term; the Court's "personality" is stable over long stretches of time, but it can shift and it does go through eras. People complaining about the new era don't seem to realize that for many Americans, the previous era was strange times that called to question in their minds the legitimacy of the Court).

Oral arguments are the lawyers making arguments. The justices ask questions and collect answers. Their proofs are in their opinions.

This is objectively false. There are no requirements like this and there have been several appointees throughout history without many, if any, qualifications for the role.

In fact Scalia famously said this coming from a textualist perspective which I think most people can agree with even if they hate him: “ If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.”

This seems absolutely correct, but when is the last time ypu ever saw a commentator observe this? Critique has been reduced to “i dont like the effect so the interpretation of the law is wrong.” Put the other way, a fair observer must eventually say “i really hate the conclusion but they got it right.”

Nah… thats unthinkable

It doesn't take a good developer to describe a system in a way that nobody can understand it. It does take a great one to describe a system in a way that a layman can understand it.

[0] https://www.supremecourt.gov/opinions/opinions.aspx

If you want to deal with non-SCOTUS federal cases, your choices are to use PACER or to use RECAP (https://www.courtlistener.com/recap/), where the documents may be available. E.g., the appeals court docket for this case is at https://www.courtlistener.com/docket/67448481/in-re-purdue-p..., note that many documents aren't available because no one made it free via RECAP.

If you want to deal with state courts... good luck! Every state has a different system with different level of pains to track down.

They don't need to be. A person addicted to drugs is perfectly capable of creating laws prohibiting drug use.

The "impulse" equivalent for a lawmaker would be that once they feel withdrawal, they will spontaneously pass a law allowing drug use again.

Since (luckily) passing a law is far too complex to happen spontaneously, this scenario cannot occur.

ETA:

>which is why drug testing as a condition of employment was never implemented for political candidates, heads of bureaucratic government agencies, or corporate CEOs.

If drug use is "only" prevented for the 99% of people who do not fill these roles, that is still a massive improvement.