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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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Opinion: An Agnostic in the Bible Belt

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St. Anthony’s Church located on Park Avenue in Monongahela, Pa. Photo: Kat Procyk/PublicSource

In my small town, not all of us believe the same thing. But that doesn’t stop us from believing in each other.

Growing up in the South, we always congregated around churches. Believing in God felt a lot like believing in each other. For many years, I equated the belief in a higher power with the presence of hope.

I lived in a mid-sized city, Rome, Georgia, which prided itself for its distance from the interstate but still had its fair share of rush hour traffic. You couldn’t easily walk from one end of town to the other, but you could navigate downtown on foot. Three rivers met just behind Broad Street, and people were usually standing down by the banks fishing as the clock tower announced each passing hour.

If you get in a car on Broad Street and head south, passing the fairgrounds, which fill up each October, and continuing past an iconic lot filled with stone statues, another filled up each holiday with inflatables, and finally past the expanses of woodlands beset in recent years by controlled burns — you will reach Kingston, Georgia. Growing up in Rome, we told local legends about avoiding Kingston at all costs. We said it was haunted or dangerous, the sort of place you’d get lost in forever.

Always curious, I longed to find out if the stories were true. Then, in my early 20s, I met a man who had recently opened a scenery studio in Kingston. Seeking refuge from the madness of Atlanta, he’d traveled north to a former lumber yard that before that had been a railroad wye – an important transportation hub during the Civil War.

Kingston has felt a lot like a forgotten town. You can walk from one end to the other. There is a park in between. Railroad tracks, on which trains still run, cross through the center of the town. We are known for our high number of Civil War landmarks and not much else. There are churches on many of the corners, and the conflation of religion with hope there feels almost as practical as fanciful. Specifically, churches provide evening childcare for many children of working parents and give food and clothing to a population in need.

When I married in 2007, a pastor from a local church officiated the ceremony. Four years after that, I found myself sitting on the town’s active railroad tracks. Some of me wanted to die. Nonetheless, I chose to live. I also began the long process of quietly losing my religion. This wasn’t because my troubling circumstances caused a lack of faith. Rather it was because, while sitting on those tracks, my inner will inspired me to go back inside, hug my child, seek out treatment for depression and ultimately be brave enough to leave what grew to be an unhealthy marriage. I had called out to God and received the clear message to call upon myself instead and rise beyond the stories of my childhood. I had not so much renounced my faith in God as found my faith in myself.

For many of my neighbors, that still sounds a lot like blasphemy. For others, it sounds like an opportunity for them to put me in their prayers. I greet both attitudes toward my agnosticism with a smile. There is no need for it to stand between us, and it doesn’t most of the time. At 10, my daughter can safely walk to local stores by herself and have picnics in the park with her friends. Mine is the house where local children come to pass hours and eat chicken nuggets and cookies before pulling out flashlights and making their way home at dark. We help each other plan parties when it comes time for them to celebrate birthdays. We share folk remedies and food. Within our community, there is a lot of love. There is also a lot of poverty, addiction and emotional pain. Whether or not our comfort comes from religion or elsewhere, we show each other kindness and respect.

I am writing to share that revelation. During a time when the United States is divided pointedly along party lines, I’ve found security and peace in rural America. In many ways, my small, taboo town has become its own nexus of hope. The simple fact that we keep showing up daily, bearing witness to each other’s lives, is enough.

Kelli Lynn, a native of Northwest Georgia, is an author, activist and entrepreneur. More of her writing is available on Medium.

This article was originally published by the Daily Yonder.

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A Millennial (and Friends) Rethink Rural

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Participating in the 2019 Loyalty Day Children's Parade in Ilwaco, Washington, from left to right, are Quincy Moore, Lynn Dickerson, Thandi Rosenbaum, Cella Rosenbaum, Willa Tantisook (wagon), Jessika Tantisook, and Leah and Scott Hunt. Photo: Madeline Moore

What if we sent a different message to our rural young people? “Leave, but remember you can come back later and create a good life.” Rural millennials are forming a national organization to connect and support young adults who are making a difference back home.

When I graduated from Ilwaco High School in a class of 69 students, the resounding message was “Do well in school. Do everything you can to get into college. Get out of this town. Be successful, and you’ll never come back.”

In fact, teachers and other members of my community in southwest Washington state had pounded the same message into me since kindergarten.

The author with at her first Ilwaco Farmers Market with her small bakery, Pink Poppy Bakery. Photo: Damian Mulinix, 2012

I did the first three things, and then the fourth, too. But I did come back, at the ripe age of 22, to start a small bakery. I remember my mom telling me once, shortly after starting the bakery, that people kept saying, “We heard Madeline moved back to town. Is everything OK?” Something had to be wrong for me to want to move back to the town that had raised me.

This is a familiar story for many millennials who make the choice to move back to or stay in the rural, often downtrodden, small communities they grew up in. Success equals getting out and staying out for good. But many millennials are changing that narrative. We see the potential a small community offers to build a lifestyle that urban areas cannot: a slower pace of life, an appreciation for dirt over concrete, the chance to wear many hats and the ability to directly see the change you can make, to name a few.

Six years after diving head-first back into rural life, buying a home in Chinook, a community of 450, and running a successful small business, I realized I wanted to connect with others my age who cared about rural livelihoods as much as I do. Serendipitously, I connected with two women from Port Townsend, Washington, a city of about 10,000 in the northeast corner of the Olympic Peninsula. These women wanted to do the same thing I did, and from there, Rethinking Rural was born. Together, we’re building a national network of millennials who want to create stronger, more resilient rural communities.

In March 2018, we invited 50 millennials who were active in rural communities across nine states for two days of conversation in Port Townsend. We focused on why our communities matter and how we can work together to make them better. By the end, many tears were shed. These were people like me, who wanted to fight hard for their town but, more often than not, felt as if they were banging their head against a brick wall. But maybe if we started working together as like-minded young’ uns, we could get more done and affect more than just our individual communities.

Aerial of Ilwaco, Washington, the town the author went to high school. Photo: Madeline Moore 

From those conversations, we created a three-year plan, which includes three more of these place-based celebrations and conversations about rural, all led and hosted by participants from our first event in their own towns. 2020: Nauvoo, Alabama. 2021: Indian Country, Pacific Northwest. 2022: TBD based on preceding symposiums.

To do all of that, we’ve partnered with a national nonprofit that has led the way on rural community development issues, the Rural Assembly. This partnership will broaden our reach and allow us to work under a larger umbrella. We’re also building many smaller, regional partnerships across the country to help guide our work. And now, we are launching a crowdfunding campaign to propel us towards our larger goals. We plan to raise $40,000 in start-up funds to use as leverage for other funding opportunities.

Quincy Moore at the author’s home beach, Chinook, Washington. Photo: Jacob Moore, 2018

I now have a 1½-year-old and she is being raised in the same community where both of her parents grew up. We recently pulled her in a wagon with all of her cat stuffed animals in the Loyalty Day Kids Parade – a parade I walked in every single year as a child. I now have similar hopes for her as many in my community had for me. I hope she moves away and goes to college. I hope she is successful and finds something she loves to devote her life to. But I also hope that one day, she decides to move back and invest in the place that raised her. Rethinking Rural is about making sure there is something for this generation and the next, and the next, to move back to. And that rural America is a thriving, culturally diverse, healthy place for people to set roots.

Madeline Moore is a mom and founder of Rethinking Rural. She studied photojournalism at the University of Oregon and works as a private chef for artists in residence at Willapa Bay AiR in Oysterville, Washington.

This article was originally published by the Daily Yonder.

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‘Don’t Forget the Beauty’: Appalachian Town Pushes Back Against National Narrative of Despair

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The ampitheater, with a stage full of beauty queens and high school cheerleaders, sits on the banks of the Ohio River. Photo: Jack Shuler/100 Days in Appalachia

It was billed as a press conference and pep rally, a chance for community leaders to respond to negative national media coverage.

On a recent Thursday evening, high school cheerleaders and beauty queens lined the back wall of an amphitheater alongside the Ohio River. Shawnee State University’s mascot, Shawn E. Bear, bedecked in a navy-blue basketball kit, mugged for the cameras while a DJ hyped the crowd. Everywhere orange, green, blue and silver balloons, and people wearing light blue t-shirts that read: “Dream. Build. Live. In Portsmouth, Ohio.”

The crowd that gathered on the banks of the Ohio River in Portsmouth heard about some of the latest successes of the city, including the planned construction of new hotel and the return of a championship boat race. Photo: Jack Shuler/100 Days in Appalachia

The rally was billed as a response to negative national media coverage of Portsmouth, a city often referred to as the epicenter of the nation’s opioid crisis. These outlets “have sensationally concluded that ‘hope has left Portsmouth,’” as press release by the Friends of Portsmouth, the group that organized the event, said. The group invited them to return for an event focused on the positive.

And despite the gray sky and drizzle, it was, as the MC announced, “a parade of positivity,” for the hundreds of folks from Portsmouth who showed up to celebrate some recent accomplishments. We learned about the Southern Ohio Museum’s 40th Anniversary; about Plant Portsmouth, a successful effort to plant a record number of plants; about Shawnee State University’s Kricker Innovation Hub; about efforts to reinvigorate Portsmouth’s historic Bonneyfiddle Neighborhood; about a soon-to-be built 7-story hotel; and about the return of the National Powerboat Association’s National Championship.

But seats near mine reserved for invited members of the national press corps were empty. The celebration of good didn’t attract members of the media who have been focused on the history of struggle.

Beginning in the late 1990s, prescription drug abuse gripped Portsmouth as doctors dispensed prescriptions for opiates at cash-only pain clinics, so-called pill-mills. By 2010, 9.7 million doses of opiates were dispensed in Portsmouth’s Scioto County–130 doses for every man, woman and child there. The citizens of Portsmouth organized to shut them down. In 2011, the federal Drug Enforcement Agency, along with local and state law enforcement, raided the pill mills. But opioid use disorder never went away. Since the pill mills were shut down, intravenous drug use soared. Heroin and synthetic opioids like fentanyl and carfentanil have led to a rise in overdose deaths as they have elsewhere.

In the spring of 2017, The Guardian ran a story that called Portsmouth “‘The Pill Mill of America’: Where Drugs Mean There Are No Good Choices, Only Less Awful Ones.” It described a community flat on its back, completely helpless. It was a problematic example of parachute journalism. It’s certainly true that Portsmouth was one of the first and hardest hit by the opioid crisis. That also means that it has spent the most time addressing it. The article inspired me to find people who were a part of Portsmouth’s response– to at least give fuller context to the opioid crisis by looking at the issue through their eyes.

I found a hidden gem in Portsmouth, Spartan Municipal Stadium, one of the oldest NFL stadiums where football is still played. The stadium, listed on the Ohio Historic Inventory but some are hoping it will one day be on the national historic register and in the process of being renovated, serves as an excellent symbol of the town itself—a proud but crumbling past, and uncertain but promising future. So, I decide to share its story.

While reporting on the stadium, I met the owners, coaches and players of the Portsmouth Stealth, a scrappy semi-pro team that plays in Spartan Municipal Stadium.  In between work, life and facing the effects of the opioid crisis, they are trying to change the story of their community. Some team members find healing, meaning, and fellowship just by being part of the team and playing a sport they love. They have become informal support system, a kind of chosen family.

The story struck a chord with Appalachians whose communities are facing similar struggles so I began working with a friend and director Doug Swift to turn my reporting in Portsmouth into a film. Doug tracked the team’s 2018 season and created a beautiful documentary.‘“Til the Wheels Fall Off,” released this spring, shows how this community has worked to address its problems head on.

But it isn’t just this football team attempting to tackle Portsmouth’s problems. I spent the day after the pep rally with Lisa Roberts, coordinator of the Portsmouth Health Department’s Drug Free Communities Support Program, and, in general, a superhero to many trying to address the overdose crisis. She started a syringe exchange program in Portsmouth and launched a statewide program called Project D.A.W.N. (Deaths Avoided With Naloxone) that has brought the opioid antagonist naloxone to all corners of the Buckeye State—a program that has saved at the very least hundreds of lives. Her ongoing work in this community has made her an expert and researchers and community leaders from around the nation reach out to her for advice—she’s even spoken before Congress. Roberts’ story of success and positivity is just one of many in Portsmouth, and one of many that’s being missed by the national narrative of despair.

At some point last summer when Doug was filming for the documentary, someone reminded him, “Don’t forget the beauty.”

There’s nothing more true than that. We captured the changing seasons in this Ohio River town—the winter snow outside the football stadium, cottonwood fluff above the green hills, Queen Anne’s lace alongside the railroad tracks. We captured the moments of pure joy when the Stealth got a touchdown or when a father and son danced on the sidelines. And we captured the beauty of a team that was beaten down many times but always, every single time, came back to play another game.

In Portsmouth, and throughout the Rust Belt and Appalachian America, there are scars. Deindustrialization happened. Pill mills happened. Overdoses are happening.

But organizing is also happening. Solutions are also happening. Beauty is also happening. The point is, I think, to be honest with readers. To show the struggles, the agency, the healing.

Jack Shuler (@jackshuler) is the author of three books including The Thirteenth Turn (Public Affairs, 2014). His writing has appeared in Pacific Standard, The New Republic, The Christian Science Monitor, and elsewhere. He teaches at Denison University in Ohio and edits betweencoasts.org, an online magazine covering stories from Rust Belt and rural America.

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