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WVU — Kentucky More Than Just a Basketball Game in Appalachia

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Bob Huggins and John Calipari, clutching arms and smiling together as crowd looks on.

On Saturday, West Virginia University’s men’s basketball team will host the Kentucky Wildcats at the Coliseum in Morgantown, West Virginia. It’s a matchup of two high-profile teams and two volatile, mediagenic head coaches, TV-made for a national ESPN audience.

But the game will mean more to West Virginia and Kentucky than just the final score.

Both West Virginia and Kentucky are small Appalachian states. Neither has a major league professional sports team. As such, the big college teams dominate each state’s sports fandom. Allegiances are passed down from generation to generation if you live in West Virginia, you’re a WVU or Marshall fan; in Kentucky, either a Kentucky or Louisville fan. There is very little crossover. Games are the stuff of memories. I remember listening to Jack Fleming calling Mountaineer football games on the radio in the 1970s while raking leaves with my Dad.

Both WVU and Kentucky’s basketball programs have long, storied pasts that are closely tied to their state’s heritage. West Virginia is the home of Chelyan’s Jerry West, arguably the greatest player in NBA history, so great that his image is used as the NBA’s logo. Charleston’s Rodney “Hot Rod” Hundley dazzled WVU fans and was the first pick in the 1957 NBA draft. He played six years in the league and went on to another career as an NBA broadcaster.

The Kentucky Wildcats are the most successful program in NCAA history, with more wins and a higher winning percentage than any other program. The team had a four-decade run of success under legendary head coach Adolph Rupp. The state produced old-time stars, including Ralph Beard, Cliff Hagan, Jack Givens, who preceded the steady stream of out-of-state, blue-chip talent the school now attracts, such as John Wall.

In recent years, the WVU and Kentucky programs have grown closer thanks to the personal bond between the head coaches. WVU’s Bob Huggins and Kentucky head coach John Calipari are longtime friends; earlier in their careers they were both seen as coaching outlaws, willing to take chances on talented-but-sometimes-troubled players that other programs passed up. Their teams have played several times over the years; Huggins’s teams routinely beat Calipari’s.

In 2002, their paths grew closer in a coincidental and dramatic way. That year, Huggins suffered a heart attack in the Pittsburgh airport. When he regained consciousness in the ambulance, one of the EMTs told Huggins, “Coach, listen. I can’t let you die. I’m John Calipari’s cousin, and you can’t die until we beat you at least once.”

Despite their many similarities, there is a key difference between the Kentucky and WVU basketball programs: NCAA national championships. Kentucky has eight; WVU has none. WVU has zero national championships in football, as well. In fact, WVU’s football team has the dubious honor of having won more games than any other NCAA football team without having won a national championship.

And that statistic is at the heart of the bittersweet but unbreakable bond between West Virginians and their sports teams.

Both WVU’s football and basketball teams have flirted with greatness, but always fallen short, often in heartbreaking fashion. As a small state, West Virginia does not produce enough top-level high school talent to consistently stock the University teams, as in the case in Florida, Texas and California. As such, WVU’s teams have been forced to get the recruits they can, coach them to be better, snag the occasional overlooked superstar and pray for a convergence of external events to vault the teams into championship contention.

Only to see fan’s hopes crushed.

This was the case in 1959, when West led WVU’s basketball team to the national championship game only to lose to the University of California by one point. WVU’s football team played for the 1988 national championship against Notre Dame, but star quarterback Major Harris was injured on the game’s third play, effectively ending the team’s chances. In 2007, star quarterback Pat White was set to lead WVU to play in the national championship game; only a poor 4-7 Pitt team stood in the way. For a generation of fans, “13-9” is a score of infamy. Huggins took his 2009-10 team to the Final Four, but during the semifinal game against Duke, star forward Da’Sean Butler went down with a knee injury, dooming the team.

This has been the way for WVU fans, so much so that sports writer Mike Casazza wrote a book about WVU football cleverly titled, “Waiting for the Fall.” Allowed momentary prosperity, WVU fans are always waiting for the fall.

Huggins was born in Morgantown, grew up in Ohio and played basketball at WVU. And though he spent his coaching career elsewhere before being hired by WVU in 2007, West Virginia has always been home for him. The connection between the school, the team and the residents of the state is no joke to Huggins. It is something he deeply believes in and cultivates in his players, most of whom are from out-of-state.

To teach his players about West Virginia and a driving force in Appalachia, he has taken them to visit a coal mine. Huggins brought homemade food and visited families affected by the deadly Upper Big Branch coal mine explosion in Raleigh County in 2010. He made it his job to inculcate out-of-state football coach Dana Holgorsen into West Virginia, including him on a fishing trip in the southern part of the state.

On the court, Huggins has crafted a team to fit West Virginia’s identity. Despite his success at WVU, Huggins has been unable to recruit a string of Top 50 high school players like his buddy Calipari at Kentucky. Instead, he finds players willing to work hard and he makes them play a harassing full-court-press defense whose goal, the New York Times once wrote, “seems to be annihilation.”

It is not always pretty, a Huggins-coached team, but it is effective and it fits its fans. Huggins routinely tells anyone who will listen that his players play for the state’s 1.8 million residents. But he recently took the observation a bit deeper, and drew a straight line between his team and the residents of West Virginia.

We are a microcosm of our state,” Huggins said. “We are grind-it-out, tough-it-out, be tougher than everybody else and be successful because we are tougher. We are equipped to endure more. It’s West Virginia. Everybody else plays for the school, the old alma mater. We play for an entire state.”

Equipped to endure more.” Yep, that’s us. Huggins takes this to heart, literally. West Virginia fans gasped in horror last February during WVU’s game against Texas when Huggins, walking on-court during a time out, clutched his chest and dropped to his knees.

After a few minutes, Huggins stood and was checked by medical staff. He had been stunned by the activation of the defibrillator planted in his chest following his 2002 heart attack, shocking his heart back into a normal rhythm.

Then he went back to his stool at courtside and kept coaching. WVU won.

Frank Ahrens, a West Virginia native, is a public relations executive in Washington D.C. He was a Washington Post journalist for 18 years and is the author of “Seoul Man: A Memoir of Cars, Culture, Crisis, and Unexpected Hilarity Inside a Korean Corporate Titan.” Contact him at www.frankahrens.com.

 

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In a Desert, Any Oasis Will Do

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Photo: iStock

Rural “news deserts” are anything but arid. But the steady stream of information that flows into rural America isn’t the kind that waters the roots of democracy.

Back in the analog era, I had two newspaper boxes at the end of my driveway, a blue one for the Lexington paper, and a white one for the Louisville paper. Maybe that was showing off, but that was a time when I believed reading two sports sections made me smarter.

Then 15 years ago, the papers started shuttering their East Kentucky bureaus. Eleven years ago, the Louisville Courier-Journal quit delivering east of I-75. And in the last few years our local Lexington Herald-Leader distribution system came down to two big guys in a tiny gold Prius covering three east Kentucky counties, papers piled high enough in back to block the rear view. If the H-L wasn’t in the box by 10, you might catch the guys eating breakfast at the Dairy Queen and go pick up the paper yourself. But that was on the mornings they came to town. Some mornings what you got was two days’ papers snapped into the same rubber band. And occasionally it was three days in a row bundled together so you could read the Herald-Leader like Paradise-Lost; start in the middle, then go to the day before yesterday, and finish up vanquishing Satan with the day’s breaking news.

Where I live is now designated as a news desert. That makes it sound like the only news here is “man bites cactus.” But there’s nothing arid about our news. A lot of good journalists showed up and launched careers covering our corruption, perfidy and feel-good human interest. Former East Kentucky reporter for the Herald-Leader, Frank Langfitt, is now NPR’s London correspondent. Former East Kentucky reporter for the Courier-Journal, Gardiner Harris, covers international diplomacy for the New York Times. Even the Mountain Eagle, our weekly paper in Whitesburg, can point to its own legacy of covering local news and to reporters who went from covering these coalfields to grand destinies as authors, media executives, and, in Bill Bishop, to co-founding of the Daily Yonder.

The different definitions of “news desert” go from the simple, 1) places with no papers, to the gilded, 2) communities with limited access to credible and comprehensive news and information that feeds democracy at the grassroots. The news desert’s closest living linguistic relative is the “food desert,” meaning a place where you can’t purchase fresh fruit or vegetables. I don’t know who can’t buy a banana, but my heart goes out.

Why this news desertification happened hardly matters. Maybe it was because media conglomerates, like Gannett and McClatchy in my case, wanted to maximize profits and take away the information country people need to feed democracy. Maybe it was because digital technology created a more efficient paperboy. But what matters more is that this change in the news ecosystem has occurred all over rural America in the last twenty years, and as our news delivery changed, so did our politics.

The change helped get Donald Trump elected. It helped conservative evangelicals establish themselves as news providers across rural America. And it helps explain why rural people’s understanding of their own self-interest may seem out of sync with what people who get their news in metro media hubs think it should be.

Or maybe the news didn’t dry up as much as it got diverted. At the end of the Bill Clinton administration, there was a small fight in Congress and in the FCC about how to expand the public media spectrum on the FM dial. The fight was about whether to allow religious broadcasters in. Prior to 2000, the lower end of the FM dial had been reserved for secular education and public purpose broadcast. And that changed. In the gaps between NPR stations and nonprofit community broadcasters, new licenses opened the door for country churches and emerging evangelical networks to join forces. Incrementally the licenses begat stations and the stations begat weaponized news and cultural programming that found local audiences. By 2006 those small evangelical radio outlets had become the second-largest radio format in the nation. Only country music was bigger when you measured by station count and not by metro density or population served. Today there are a combined 3,000 commercial and noncommercial Christian radio stations compared with nearly 2,200 country stations and 2,000 talk stations.

I like local radio. My favorite program is on a station in Powell County, Kentucky – “Tradio on the Radio.” People call in to sell you a garage-kept like-new ’99 Mercury Marquis with 229,000 miles or 14 electric pole glass insulators, all for $3. Once I heard a woman say, “I still have that wiener dog that showed up, blind in one eye, and answers to the name of Willow.” (How many names would you have had to try before you came up with “Willow?”)

But not that long ago I was driving through the same Powell County and I picked up another station with a preacher telling a story about a boy who had been helpful at the church. Preacher asked the boy could he come back on Saturday during the revival and help park cars. Boy told the preacher, sure he would. But then the day came, no boy. Preacher said, when he saw him out next time he asked why he didn’t come park cars as he’d promised. Boy told the preacher he was sorry, but it turned out that revival Saturday was his brother’s day to wear the shoes. “They only had the one pair,” the preacher explained, then said, “Well, we bought that boy another pair of shoes,” before going on to enumerate why your local contributions to the station were so important.

And many of those local Christian stations are important. They reach out to people down on their luck. And in a lot of small towns facing addiction, joblessness and dissolution of community, luck is in short supply. Part of the appeal is that these stations blend local ministries and community outreach with on-the-hour national news with a Biblical perspective. What’s under the radar is that the Christian news feed and other programs are nationalized and weaponized by conservative think tanks and by Evangelical church networks. Right now, that news product is some combination of political and cultural discourse meant to push emotional buttons. Today’s topics include: paying reparations for slavery, well-to-do socialists, a billion-dollar Medicare scam, an approaching immigrant caravan and a failed coup to remove the President of the United States. The news can change from hour to hour, but the emotional button-pushing remains constant.

Also under the radar is the accounting that shows these radio networks and affiliated institutions have gone glandular monetizing religious radio stations and media support services like news, sermons and church literature. In 2011 the revenue for Focus on the Family, a service ministry, was reported to be over $95 million. According to Ministry Watch, Education Media Foundation, the network for many of the nonprofit evangelical stations, has net assets of $552 million. The commercial Salem evangelical network lists assets of $559 million on over $250 million in annual revenue. By accepted accounting principles, there should be no shoe desert anywhere Christian radio is on the dial.

Still, it is not just Christian radio broadcast that has moved into the vacuum left in rural communities — after regional papers pulled back and local market TV channels refocused on their more well-heeled suburbs. And it is not just Fox News, Sinclair Broadcasting and syndicated AM talk radio either. They may preach to a sizeable choir, both confirming messages and synthesizing community, but they are not digital missionaries finding new converts.

Cutting edge communication technologies have brought with them the precision of seeking out the conservatively curious and the politically disinclined to push them toward common political purpose. Facebook, Google, YouTube, Twitter, and – most of where you go online to express yourself – have you targeted. You are the change they seek. They take what you like and what you hate and prank with you. (Sources say.)

A while back I stopped in Hazard to visit my sister. My brother-in-law had just built a zip line for my niece and nephew along the river bank. I’d never seen one. Very cool. After that visit, I went down the block and coaxed my brother to fix me a drink. In the chat about University of Kentucky sports and Hazard High sports and by the way how are the kids, the zip line came up. When I showed up at work the next morning, 30 miles away, I opened my computer, and immediately Google presented me with an ad for a zip line. The trick is not figuring out how they do it, but when they are doing it to you. Is that report of the FBI coup real or a feat of news desk prestidigitation? And when should I take the story seriously about that immigrant caravan hurtling toward town on a zip line?

Before the last election, many of us in my town reached out to a friend who was sure that Vice Presidential candidate Tim Kaine had abused his daughter. Something my friend learned from reliable sharers on Facebook, confirmed at church by others who’d seen the same report. With enough care, you can explain a story like that is several years old, cut and pasted from actor Alec Baldwin’s family crisis, and that no daughter had been harmed in either case. But you can never convince that friend who believed the story the first time that a Tim Kaine is OK to leave your kid or your country with. And when you see that the same abuse news story went systematically unchecked to a million voters, you can begin to appreciate the power of emerging news platforms programmed to hunt down gullibility and sidestep candor.

Dee Davis is publisher of the Daily Yonder and president of the Center for Rural Strategies.

This article was originally published by the Daily Yonder.

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When a Region Tells Its Own Stories, That’s ‘New Territory’

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“Get out of Missouri,” was the professional advice Tina Casagrand received as a young journalist fresh out of college. Instead, she hunkered down in a small city and started a print magazine for people who love the Lower Midwest just as much as she does.

Places matter to Tina Casagrand. So do journalism and culture. So do anthropology and science. So do readers, writers, books and magazines. And the Ozark mountains and the river basins of central Missouri. And other parts of the lower Midwest, too — places like Nebraska, Kansas, Oklahoma and Arkansas.  

Casagrand is the founder and publisher of The New Territory, a reader-supported print magazine she created in 2015. In that role, she brings literary, anthropological, and ecological voices to a region that has challenges but ample optimism.  

Tina Casagrand
Tina Casagrand

Casagrand launched the magazine about two years after graduating from the University of Missouri. With the talents of a small team of volunteers, the magazine puts its mission into practice, “to connect the land, people and possibilities of the Lower Midwest.”  (The magazine has no digital version, but it does publish a blog, which occasionally includes a free sample article.) 

Like many people living a creative, purpose–driven life, Casagrand didn’t start out knowing she wanted to be what she is now, although there were some early hints. She was raised by her great-grandparents in Dixon, Missouri, a town of about 1,500 southeast of the Lake of the Ozarks. She’d always loved to read, particularly magazines. In high school Casagrand didn’t realize that “magazine publisher” was a career path, but she worked on student publications and did other activities that suggested she might have a future involving the written word. She developed a strong interest in world culture and international travel. That led her to major in both journalism and anthropology. She minored in art, and then added another minor, biology.  

Casagrand started freelancing in college, focusing on environmental writing. She was hungry to experience new cultures and places, to tell stories she discovered along the way. She “hit a high point early” in her freelance writing career when a story she wrote was published on the National Geographic website. It dealt with the epidemic of emerald ash borers killing trees and what could be done about it. 

“That was cool and awesome, but along with the byline was the realization that I didn’t want to be doing that kind of work for very long,” Casagrand says. The problem was that so much context needed to be provided for a national story that there wasn’t much room for depth.  

“I was in 1,200-word count hell,” she recalls. That’s when she came to terms with the fact that the outlet for what she wanted to do didn’t exist.   

Instead of giving up, Casagrand saw an opportunity to both serve readers and improve the “writer ecosystem.” She wanted journalists to have a publication where they could pitch long, thoughtfully crafted stories with love for place at the forefront. She developed a prospectus for The New Territory and ran it past her peers in the Society for Environmental Journalists. They gave her encouragement and suggestions. Then she was ready to put out a “bat signal” that there was a location for in-depth narrative that would treat stories with care.  

Casagrand now publishes The New Territory from her office in Jefferson City, Missouri’s capital. The editors, designers and others work remotely, scattered around the country. The magazine is distributed almost entirely through subscription and contains no advertising but does include a sponsorship section. This allows the bills to be paid, and the contributors, too. But the staff is all volunteer, including herself. 

The New Territory just released its seventh issue, titled “Sanctuaries.” It includes stories about a Primitive Baptist Church in Arkansas that has seen years of declining membership; a farm family in the Ozarks that has expanded its activities to make ends meet; Native Americans and non-natives coming together to save a Kansas wetlands from highway construction; a photo essay on how Oklahomans are finding new ways to protect public lands as state park budgets erode; plus art, poetry and fiction.  

Having lots of hands helping on the magazine allowed Casagrand to step away from daily editing duties. As publisher, she can focus on finding continued financial support. She sees convincing people to pay for quality journalism as a challenge that needs a solution. An added challenge is her location in the middle of Missouri, which is foreign ground to financial supporters that mostly cluster in the big cities. That’s why much of her effort is going into what she describes as “strengthening the friendships and partnerships we’ve made so far and telling more potential subscribers about the magazine.”   

Casagrand is determined to stick to her focus creating an “autobiography of the lower Midwest,” even if not everyone is on board yet. She had numerous mentors in the journalism world who encouraged her to apply for opportunities around the country. One individual she barely knew told her that she’d never really be successful as a freelancer until she got out of Missouri. 

“It was humiliating to be told this by an older person, but I couldn’t corroborate it. I didn’t think of myself as not being on track.” In what she calls a moment of clarity, Casagrand realized that versions of success are different, a viewpoint she conveyed to that person later the day.  

It’s expected that people who are invested in her success might be a bit confused by her choices. In their experience, they see the best opportunities in bigger places. But Casagrand says she would “rather be rooted in a place” instead of having a “fragile existence” in a place she didn’t particularly wish to be. 

Growing up she appreciated the natural beauty of the Missouri Ozarks but also took it for granted. When she went to college, she experienced different landscapes through travel and came to new ways to “process ideas about culture,” she says. 

“If you’d told me at start of college I’d live in and love Missouri after graduation, I would have laughed you out the door. But it is beautiful and unique, and there aren’t a lot of journalists writing about the environment in Missouri. There is so much to cover you could make it a whole career, as a beat, and not touch everything.” 

Still, it isn’t for everyone. 

“There is high attrition of talented people leaving here, and I was on track to be one of them.” But she knew she had important and personally meaningful work to do. She paraphrases Senegalese forestry engineer Baba Dioum about caring for places and protecting them to make a healthy community. “You have to love it, but you can only love it by understanding it, and you can only understand it if you learn about it.”  

She pictures readers of The New Territory as people who already love the Lower Midwest, care for it in their own way, and support regional journalism in myriad ways. “That’s who we sit down at our computers and make this magazine for,” Casagrand says. She and the team envision The New Territory being shared with people informally, and even formally in the classroom as teaching material guiding readers to understand the region better. “That why we imbue each issue with so much love.” 

As Casagrand puts it, it’s true love, not just boosterism. “People see that it’s not fluffy content. An intelligent reader knows when they’re being sold something, and that’s one of the fastest ways to erode trust.” 

Casagrand tells the life story of this state that is bounded by the Mississippi River on the east and partly bordered and bisected by the Missouri River. The rolling farmland of the north, the rugged and forested south, the flood plains of the southeast and the Great Plains to the west offer plenty to learn about and love.  

Even the boundary between rural and urban spaces speaks to Casagrand. She carries a tangible emblem that reminds her of each, in the form of body art. On her left bicep is a tattoo of a whippoorwill, and on the right bicep is a blue jay. She calls the whippoorwill the “soundtrack of evenings sitting on the porch” in Dixon. The bird is sensitive to environmental conditions, such as habitat loss. “Even now when I hear one there’s an emotional homecoming sensation because it represents rural life for me.” On the other side is the blue jay, the adaptable and assertive bird whose constant energy and voice are an emblem of the comparatively urban life she’s leading now in Jefferson City. “The tattoos represent the balance I’ve found between contemplative focus and assertive action. In my ‘ideal’ world, nothing’s at the expense of the other.” 

One of the things she’s realized is that being in an area some consider too remote to matter means Midwestern voices are left out of important national conversations. “What I wanted to do with The New Territory is have the freedom to talk to other Midwesterners about what’s important to us without having to filter our message for a national, largely urban and coastal audience and defend the mere right to be thought of as important.”  

Magazine feature content has already been scheduled for two future issues, relying on local and regional voices who know the stories and how to tell them. They’re still open to accepting literature, photography, reviews, interviews and personal essays for the “Here” section. 

One goal for 2019 is get into communities more, by designing events and workshops for the public to attend. The focus would be on writing and art, which could have the twin outcomes of increasing readership and building a larger freelance contributor pool. She’s also cooking up ideas about a traveling photography gallery that would be hung in different places in the region. Another project taking shape is a reading group series. 

These ideas are enmeshed with other things she does, such as working with the group Missouri River Relief and serving on the Missouri Invasive Plant Task Force. Recently, she started as community manager at Campus Coworking Space, a new community-driven office space for people who would otherwise work from home. 

“Most of this other work is centered around helping people find their place in the place that I know and care for,” she explained. 

In an effort to encourage young Missourians, Casagrand teaches a three-week stint each June for the Missouri Scholars Academy, a program for gifted students. She teaches a nature writing class and a class called “Print Isn’t Dead.” Casagrand herself participated in this program as a high schooler. “That’s when I started to chill out about Missouri, and see how awesome it was to be surrounded by other smart people in the state and to broaden my horizons.”  

Things do change. Casagrand’s great-grandfather passed away in 2016. But not before he caught sight of the bird tats. She’d tried hiding them because she guessed what his reaction would be, and it wouldn’t be good. But one hot Missouri day in the smoking area of the parking lot outside of the VA hospital where she waited with him, she couldn’t hide them under long sleeves any longer. “I took off my outer shirt and his mouth flew open, and he asked ‘Are those real?’” 

Casagrand is working to keep them real both on the literal habitat level and the deeper emotional level. As she explains simply, “It would be a huge loss to the ecosystem if either was gone.” 

Julianne Couch is a writer in Bellevue, Iowa. Her feature story on private property hunting as a form of rural economic development in Kansas will appear in The New Territory later this year.

This article was originally published by the Daily Yonder.

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What Oklahoma’s Opioid Settlement Means for Other States, Cities and Counties Suing Purdue Pharma

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In this April 2, 2018, file photo, pharmacist Steve Protzel poses for photos holding a bottle of OxyContin at Daniel's Pharmacy in San Francisco. The dug is manufactured by Purdue Pharma. Photo:Jeff Chiu/AP Photo, File

Oklahoma Attorney General Mike Hunter recently announced that the state had reached a $270 million settlement with Purdue Pharma, the largest manufacturer of prescription opioids. The settlement resolves the state’s claims against Purdue over costs incurred in addressing the opioid crisis and allows Purdue to avoid a trial that was scheduled for May.

So the natural question arises: What does this development mean for the 1,700 or so cases brought largely by city and county governments against Purdue and a swath of other pharmaceutical-industry defendants?

My advice for other plaintiffs and opioid victims, based on my nearly three decades studying and practicing civil litigation: Don’t get your hopes up.

Judge Dan Polster is overseeing a case involving dozens of opioid lawsuits. AP Photo/Tony Dejak

Purdue’s potential bankruptcy

Most of the outstanding cases have been consolidated into so-called multidistrict litigation in Ohio. The court’s judge, Dan Polster, has pushed hard for a settlement.

So will these cases follow Oklahoma’s lead and reach a settlement?

Not so fast.

Rumors have swirled around Purdue’s possible plan to seek bankruptcy protection from creditors, including the plaintiffs in the opioid cases. That plan may make sense to Purdue given that the ongoing litigation could result in judgments in the tens of billions of dollars – presumably far in excess than the combined net worth of the family that owns the private company, the Sacklers.

But a bankruptcy filing would create havoc for any prospect of near-term settlement for the outstanding opioid cases. An automatic stay would be issued that would bring all pending U.S. litigation to a screeching halt – including the bellwether multidistrict trial, which is set for October.

A bankruptcy judge with no familiarity with the case would suddenly find herself responsible for resolving perhaps the largest mass litigation of its kind in history in terms of monetary size. That judge would have to approve any new settlement involving ongoing litigation in other jurisdictions and would likely require it to be global. That’s a herculean task – just ask Polster, who had hoped to settle the cases before him by now.

At the same time the alternative is also unthinkable in which all of the claims against Purdue would potentially relocate to the bankruptcy court where Purdue files. In other words, all 1,700 or so cases – including the multidistrict litigation and the state lawsuits – would be lumped together before the bankruptcy court to be resolved there.

That court could choose to send them back for trial to the courts where they originated but still would have ultimate authority to determine how much each creditor and plaintiff would end up with.

Oklahoma’s settlement

A bankruptcy filing by Purdue could also pose problems for the settlement with Oklahoma.

Although Oklahoma claims that its settlement is secured against a possible bankruptcy filing – and Purdue reportedly committed to delay any filing – it’s likely the other plaintiffs would challenge it. Why should Oklahoma get a large settlement while all the other states with pending litigation are forced to accept the scraps following Purdue’s bankruptcy?

After all, there is nothing unique about Oklahoma’s case except that it was the first to come to trial. I don’t think a bankruptcy judge would feel warm and fuzzy about affirming a disproportionate settlement that would benefit one state to the detriment of all the other plaintiffs.

If the plaintiffs are crafty, they’ll try to force Purdue into bankruptcy by filing what is known as an involuntary bankruptcy petition. All it takes is three creditors with claims against a potentially insolvent company – such as three of the hundreds of states, counties or cities that are suing Purdue – to ask a bankruptcy court to assume control of its assets.

And in this case, the Oklahoma settlement could be deemed an attempt – legally called a “preference” – to benefit one creditor at the expense of others. Thus Oklahoma would lose whatever security interest it may have, as well as any money it received, within 90 days of such a bankruptcy petition. Those assets would return to the estate for division among all unsecured creditors.

Oklahoma Attorney General Mike Hunter recently settled his state’s opioid lawsuit against Purdue.
AP Photo/Sue Ogrocki

What’s in it for Purdue

So why did Purdue settle with Oklahoma rather than file for immediate bankruptcy protection?

Clearly, in my view, it’s not ready to file – but didn’t want the Oklahoma trial to start either. A cynic might wonder whether Purdue’s owners received profit distributions within the last year and are waiting to file for bankruptcy after the so-called lookback period expires. During the lookback period, creditors can claw back certain types of payments made within the year before the filing. For insiders like the Sackler family, the lookback period is a full year rather than 90 days – as it is for Oklahoma.

In any event, the Oklahoma settlement proceeds may well end up much lower than the settlement agreement provides. So the Oklahoma attorney general may have scored a political victory in announcing the settlement, but it remains to be seen whether his constituents will actually see the money – and, if so, how much and when.

Knowing that, it’s hard to imagine any significant further settlement activity, at least until another case gets within a month or two of trial. And, if Purdue does file for bankruptcy, the opioid cases may never get that close to a trial again.

And that, of course, means that the various states and local governments that have brought lawsuits will have to continue to bear the cost of opioid-related treatment and services for the foreseeable future.

Andrew Pollis is a professor of law at Case Western Reserve University.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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