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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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Climate Activism Could Be Swaying Public Opinion In The US

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The March for Science on April 22, 2017 combined calls for scientific integrity and climate action. Photo: Kevin Wolf/AP

Climate activists walked out of classrooms and workplaces in more than 150 countries on Friday, Sept. 20 to demand stronger action on climate change. Mass mobilizations like this have become increasingly common in recent years.

I’m a scholar of environmental communication who examines how people become engaged with solving dilemmas such as climate change, and how activism motivates others to take action. A new study I worked on suggests that large rallies, such as this youth-led Climate Strike, could be influencing public opinion.

Conflicting signs

For anyone in the U.S. who has been following climate change news for years, it could be easy to conclude that these protests don’t have an impact. After all, no major environmental legislation has been signed into law in this country in decades.

Further, in 2016 a near-majority of U.S. voters elected a president who rejects the scientific evidence on climate change.

On the other hand, concern about climate change is rising. So is media coverage about global warming, notably including CNN’s seven-hour town hall on the topic with 10 Democratic presidential candidates.

To see whether rallies, such as the Global Climate Strike are contributing to this change in public opinion in a measurable way, I partnered with Pennsylvania State University psychologist Janet K. Swim and Michael L. Lengieza, a graduate student. We collected public opinion data before and after major protests.

Seeing activists in a less negative light

We conducted surveys to assess public opinion before and after the March for Science – which had a wide-ranging agenda that included climate change – and the 2017 People’s Climate March, which took place on back-to-back Saturdays in April 2017. Hundreds of thousands of people took part in the main protests in Washington, as affiliated marches occurred in other cities in the U.S. and around the world.

Nearly 600 people around the country, including some who had heard very little or even nothing at all about the mobilizations, answered our series of detailed questions. We tried to gauge their perceptions of climate activists and faith in humanity’s ability to come together on issues like climate change.

Half of the survey-takers completed their survey right before the first protest and the other half did it after the second one. Both groups represented broad ranges in age, education level and political beliefs.

The responses suggested that many Americans may have changed their opinion about the climate change movement around that time – in the spring of 2017.

For instance, the percentage who viewed climate activists as “aggressive” fell by 10 percentage points, from 74 percent to 64 percent. Similarly, survey respondents viewed activists as less “arrogant” and “dictatorial” after the protests occurred.

We consider this finding important because other research has suggested that people who view climate activists in this negative manner are more motivated to speak out against policies aimed at slowing the pace of global warming, such as the two carbon tax initiatives that voters have rejected in Washington state despite its Democratic majority.

Feeling less pessimistic about the future

Although most survey-takers said they had heard about the protests, few actually knew someone who had participated in one. Wondering whether the way that media covered these events might influence how people reacted, we looked into whether Americans who prefer liberal-leaning media outlets, such as MSNBC, reacted differently than those who rely on conservative-leaning media, such as Fox News.

We detected some interesting and unexpected patterns.

Before we looked at the data, we thought that differences in the media coverage might further the political polarization of climate change. We were surprised when we saw that the marches appeared to have the opposite effect.

In particular, the protests may have made consumers of conservative-leaning news more hopeful. Before them, consumers of conservative-leaning news were more likely to say they doubted the ability of humanity to work together on big problems like climate change.

After the marches, fewer people of all kinds expressed pessimism. In particular, consumers of conservative media became less likely to agree to statements like this one: “People are too selfish to cooperate and to fix big problems.” Before the protests, 60 percent of them agreed with that statement. Afterward, only 45 percent did.

The limits to this influence

Even so, the mobilizations did not seem to sway public opinion in every way that the organizers might have hoped. In particular, despite the large numbers participating, the two waves of protests did not appear to have any measurable impact on convincing Americans that taking community action on climate change was a normal or common thing for people to do.

Specifically, there was no change in the perceived number of people in their community or in the entire country that survey-takers believed engaged in collective action, such as environmental activism or voting for politicians that support environmental issues.

We suspect the people we surveyed did not consider the marchers to be similar to average people – like themselves.

Over the next few years, it will be interesting to see whether these shifts in public perceptions translate into shifts in consumer purchasing habits and public policy.

[ You’re smart and curious about the world. So are The Conversation’s authors and editors. You can read us daily by subscribing to our newsletter. ]

Nathaniel Geiger, Assistant Professor of Communication Science, Indiana University

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

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Is Rural America Having a Moment in Democratic Policy Proposals?

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At the Iowa State Fair, candidates were everywhere. Photo: Phil Roeder/Flickr, Creative Commons

The 2020 Presidential election is not likely to hinge on nuanced rural policy positions and party platforms. That doesn’t seem to matter to the women and men running for the Democratic nomination, many of whom are campaigning hard for big investments and jobs in rural infrastructure, agriculture, clean energy and health care.

When it comes to presidential elections, many people feel that rural issues get ignored . Mainstream media coverage of campaigns and voter opinion tends to focus on the horserace between political parties, geographic divisions and the moving weathervane of “electability.” Rural topics, with the exception of commercial and corporate agriculture, traditionally don’t get much mention.

Things seems different this year. Last week I spent a lot of time reading and comparing statements and policy positions among the diverse field of Democratic candidates. Unlike any time I’ve seen in 20 years of rural advocacy and economic development work, many of the candidates are developing serious and innovative rural policy ideas that deserve more attention.

A large number of campaigns are embracing infrastructure and telecommunications improvements in rural communities, for instance, and are trying to differentiate themselves through specific budget and policy goals. Numerous candidates are calling for aggressive changes in the health-care sector to address a crisis in rural health care facilities and availability. Most of them support agricultural reforms and conservation programs that would decrease greenhouse gas emissions.

As we were compiling our initial set of candidate position reporting at the Daily Yonder, there was a flurry of activity on rural issues just last Wednesday and Thursday. Senators Elizabeth Warren (D-MA), Amy Klobuchar (D-MN) and Kirsten Gillibrand (D-NY) all released comprehensive, detailed rural economic development platforms while campaigning in rural Iowa. Senator Cory Booker (D-NJ) introduced a bill designed to address climate change through conservation-based farming practices, renewing the Civilian Conservation Corps and scaling up clean energy systems in rural communities. Mayor Pete Buttigieg (South Bend, IN) unveiled his plan for improving rural healthcare and later released a comprehensive rural-policy plan.

A few of the innovative proposals that stick out for innovation and scope include the following:

  • ARPA-Ag, a science and innovation platform to decrease greenhouse gas emission from agriculture, Washington Governor Jay Inslee.

Modeled after the U. S. Defense Department’s Defense Advanced Research Projects Agency (DARPA), the public-sector research and development initiative that helped create the internet and supercomputers, and the Department of Energy’s ARPA-E that led to clean energy innovations during the Obama Administration, Inslee’s ARPA-Ag would attempt to decarbonize agriculture.  ARPA-Ag would expandd federal investment in “research, development, demonstration and deployment” of climate-friendly farming practices, while also reducing climate emission from the agricultural input sector. Inslee would also create a Next-Generation Clean Energy Extension Service to share the results, knowledge and resources for participating in ARPA-Ag and related efforts to decrease greenhouse gas emissions and address climate change.

Warren’s $85 billion rural broadband proposal states that, “One of the best tools for unlocking economic opportunity and advances in health care, like telemedicine, is access to reliable, high-speed Internet.” The package includes funding, incentives and regulatory changes that will allow public sector internet providers to compete head-to-head with private services. In addition, funding will be available to expand service to rural communities currently being ignored by the private sector. Eligible entities will be local governments, Native American tribes, rural electric cooperatives and rural telephone cooperatives among others.  Warren’s plan is to set-aside at least $5 billion funding for Native American tribal governments.  The $85 billion broadband plan seeks to address the rural internet access gap. “According to the FCC, in 2017, 26.4% of people living in rural areas and 32.1% of people living on tribal lands did not have access to minimum speed broadband (25 Mbps/ 3 Mbps), compared to 1.7% in urban areas,” Warren’s plan states.

  • Rural Future Partnership Fund,” New York Senator Kirsten Gillibrand.

Gillibrand is proposing $50 billion in public financing to fund multi-year, flexible, block grants to local communities with comprehensive rural revitalization strategies. Funds would be available for rural water systems, affordable housing, local food efforts, rural entrepreneurship and other rural economic development needs. The funding will target projects in rural communities with a history of persistent poverty, along with prioritizing cooperatively-owned enterprises. Gillibrand’s rural economic development plans also include the creation of a “Rural Future Corps” that identifies and trains rural young people and public servants, as well as supporting arts and cultural heritage-based efforts at job creation and local economic development.

REAP, the Renewable Energy for America Program, is a popular grant and loan program that supports installation and operation of renewable energy systems serving farmers and rural small business owners. Senator Booker recently proposed a $1 billion expansion of REAP as part of his Climate Stewardship Act. The program, in operation since 2009 with limited budgets averaging from $10-$50 million per year, has already been responsible for more than 10 billion kilowatt hours of renewable electricity production by participants, according to USDA. The Booker REAP expansion would provide a short-term boost to the already growing rural deployment of solar, wind and geothermal energy production. REAP expansion would likely result in huge increases in rural solar installations and energy efficiency improvements for farmers and rural small businesses throughout the nation.

I don’t want to pretend that a rural policy position paper is going to lead to the presidency, let alone get passed and implemented. Bold, aggressive policy proposals to expand rural economic development like these face a long and politically driven set of challenges.

The coalition of limited government activists, tax-cut proponents and white Christian conservatives that make up the bulk of the Republican Party are not likely to jump for joy. Within the Democratic Party, there is a large contingent of voices that repeatedly call for caution, moderation and fiscal conservatism. “How are we going to pay for it?” is often the mantra of the pundit and lobbyist class.

Still, while partisan and electoral politics are an ever-present barrier, rural people and organizations should take note that their consistent calls for more funding, resources and attention are working. Huge investments in rural broadband have been embraced by all of the Democrats in the race. (Broadband is one of the few rural development areas that the Trump administration has also supported.) Nearly all the candidates have called for aggressive antitrust action to curtail the market power of corporate agribusiness, a clear rejection of the hands-off approach during the Obama administration. The rural hospital closure crisis is being mentioned on the nationally televised debate stage. The climate crisis is being treated as a serious issue, with a “just transition” to cleaner agriculture, forestry and mining practices in the spotlight.

I’m not sure how to take these developments other than to report them as words on the page. Electoral politics, in my opinion, is all-too-often an incredibly important but ultimately frustrating popularity contest void of actual substance. Perhaps 2020 is going to be different, even if the innovative ideas for improving economies and quality-of-life in rural America is coming from the party that most mainstream political pundits describe as “urban.” Stay tuned.

Bryce Oates covers federal rural policy for the Daily Yonder.

This article was originally published by the Daily Yonder.

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Commentary: Immunizing Against Our Culture of Contempt

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In his first inaugural address in March of 1861, Abraham Lincoln said, "We are not enemies, but friends. We must not be enemies," and he invoked "the better angels of our nature." Photo: Wikipedia

Today’s public discourse is a petri dish for breeding disgust for people with whom we disagree. Debates about healthcare issues affecting rural America are no exception.

From the left’s “basket of deplorables” to the right’s “send her back,” our public and private spaces have become infected with a culture of contempt. On too many days, I feel I am in a country I barely recognize. I don’t know if conservatives and liberals equally engage in contempt of the other, only that I hear too much of it from both sides.

Tim Size

I take little comfort when individuals say it’s not so bad, that we were more divided during the Civil War. As savage as those days were, Abraham Lincoln knew we could and must do better.

“Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.”

Even while coming of age in the riot-torn ’60s, my evangelically conservative family would encourage me “to hate the sin but love the sinner.” And not dissimilarly, at the same time, the left made an icon of a Vietnam War protestor placing a carnation into the barrel of a soldier’s rifle.

From Fox News to MSNBC, our airwaves are filled with voices competing to be the loudest and the most adept at ridiculing their opponents. The dominant narrative is not to address ideas but to reduce those with whom who we don’t agree to a position beneath contempt. Once we allow ourselves to hold someone in contempt, all that the best of our culture teaches us about how we are to relate and support each other goes out the window.

I have taken heart from individuals who have begun to name this problem and suggest solutions, such as Arthur Brooks, long-time president of a conservative think tank, as he wrote about “Our Culture of Contempt” in a recent issue of The New York Times: “What we need is not to disagree less, but to disagree better. And that starts when you turn away the rhetorical dope peddlers–the powerful people on your own side who are profiting from the culture of contempt. As satisfying as it can feel to hear that your foes are irredeemable, stupid and deviant, remember: When you find yourself hating something, someone is making money or winning elections or getting more famous and powerful.”

If we are to reverse our country’s slide into increasingly entrenched and divided camps, we need to relearn how to productively talk about our differences instead of attacking the character, motive and personal attributes of the “other side.”

Brooks goes on to say that “each of us can make a commitment never to treat others with contempt, even if we believe they deserve it. This might sound like a call for magnanimity, but it is just as much an appeal to self-interest. Contempt makes persuasion impossible – no one has ever been hated into agreement–so its expression is either petty self-indulgence or cheap virtue signaling, neither of which wins converts.”

For those of us working in health care, contempt is not theoretical. We seem increasingly less able to make progress on important issues as the rhetoric heats up and the attacks get more personal. Here are a few examples of current health care issues that seem too often to be dominated by attacks on those who hold an opposing opinion rather than the opinion itself.

  • Advanced Practice Registered Nurse Collaboration
  • Family Planning
  • Federal Dollars for Medicaid Expansion
  • Medicare for All
  • Race and Geography in Health Disparities
  • Vaccination and Anti-vaxxers

While I know that I have and still can readily discount those who disagree with me on each of these issues, I have renewed my commitment to keep my advocacy based on the facts and our organization’s aspirations, not on trying to tear down those who might disagree. Will you join me in this quest?

Tim Size is executive director of the Rural Wisconsin Health Cooperative.

This article was originally published by the Daily Yonder.

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