Purdue Pharma Bankruptcy News and FAQ Roundup
The cruelty of lawyers, the giant packet of jargon and other updates on the Purdue Pharma bankruptcy
In the latest developments in the Purdue Pharma bankruptcy case, creditors are receiving giant packets full of legal jargon in the mail, the last hearing was a slugfest, a good number of Non-Consenting States have decided to join the settlement, the claim documentation process is underway and the confirmation hearing is coming up. It’s time for a round-up and a couple of FAQs.
Let’s start with a softball, for the lawyers.
Question: Is it ok for lawyers to be mean to each other?
Answer: NO.
What if you’re engaged in a really heated argument during a hearing? NO.
What if you use really long words and convoluted sentences to make it sound like you’re not being personally mean even though that is absolutely your intention? NO.
If you’re the judge, still NO.
The work is not personal. If lawyers have a problem with an adversary’s legal interpretation, position or motion, they should say so using words that relate to the issues, not to the person presenting it. Putting people down — even if they are lawyers — is unprofessional. That’s not a good look on anyone, even if it’s paired with a long black robe.
It’s not just me saying this: take a look at the Code of Conduct for federal judges. “A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.”
Enough about that for now. Let’s move on to some of the FAQs. Keep in mind that this is absolutely NOT legal advice. I’m not qualified to provide legal advice in this area, it’s not my intention, and you’d be crazy to take legal advice from someone who relies heavily on cartoons to make a point.
Question: I received this huge packet from Purdue Pharma in the mail. I can’t make sense of it. Is it me?
Answer: No. It’s not you. It’s everyone. Nobody understands the packet. Because it’s a confusing mess of jargony nonsense.
Are we surprised? No. Are we disappointed? Yes. Plain, comprehensible, clear writing continues to be a common struggle for lawyers. This packet is a particularly upsetting example of convoluted legal writing, because the case is so important and so personal for so many people.
When I first tweeted about the issue, at the end of June, I received an interesting response from Professor Melissa Jacoby, Graham Kenan Professor of Law at the University of North Carolina, Chapel Hill. She mentioned an interesting anecdote and explained why the packet was so dense.
She reminded me of a cartoon I’d drawn during the May 26th hearing, when Marshall Huebner, Purdue Pharma’s lead attorney, was responding to requests for clarifications.
So don’t feel like it’s your fault if you don’t understand the packet. They didn’t do a good job of making it easy — and when you’re not a lawyer, when you’ve suffered enough to be filing a personal injury claim in the Purdue Pharma bankruptcy and when you probably have a job and/or family to take care of, they should’ve made it easier for you.
Question: What is this giant packet of documents about, anyway?
Answer: The packet is intended to give you information so that you can decide whether to vote for or against the plan that Purdue Pharma has proposed to emerge from bankruptcy. This article contains a relatively clear summary of the plan (be aware that the numbers have changed a bit since the month of March). The deadline to vote is July 14th. You can vote by going to this website (just scroll down to where it says “Submit A Ballot Electronically”) or sending in the form you received.
The voting process is SEPARATE from the claims process. I’ve heard people say that if you vote “no,” your claim automatically will be denied. That’s not true. It’s true that by voting against plan, you’re expressing disagreement with the process and payment structure, but (1) it’s more than likely that the plan will be approved and confirmed, and (2) no one will be rewarded or punished directly for their vote.
Nan Goldin, the famed photographer and activist, explained her position on the plan in an Instagram post. It’s worth reading.
Question: I filed a claim. Do I need to send in documentation to prove it? What do I need and where do I send it?
Answer: Yes, you will need to prove your claim. The plan sets out the requirements for compensation. I know there are a lot of specific questions out there, like, ‘do I need a prescription,’ or ‘how do I get my prescription records,’ or ‘what do I submit if my child was getting OxyContin on the street?” I can’t advise you on this. You can try calling Prime Clerk, the company handling the claims process on behalf of Purdue Pharma, to ask them whether you qualify, what you need and how to submit. Their number and contact information are available on the right side of the page on this website, under the heading “Info Center.” It’s also available on their FAQs page, under question #20.
The FAQ also will direct you to the Official Committee of Unsecured Creditors (see question #20). They’re supposed to be representing you — they should have and share the answers to these common questions. If you cannot reach them, please drop a comment below. I’m interested to know whether they are actually helping people.
Ultimately, you’ll submit the documents through the claims portal, like you did when you first filed. According to the Prime Clerk website FAQs, (see question #14), you’ll indicate that you are amending (or changing) an existing claim, and it will allow you to upload your documents.
You can also try calling your local state Attorney General’s Office, to see if they’ve set up any information sessions. If they haven’t: tell them they should.
I wish I could be more helpful. If anyone knows of free legal resources for creditors, please add them to the comments below or DM me on Twitter. It’s a sad state of affairs when, even with years to see this coming, no one set up clinics or webinars or plain English instructions. And no, Purdue Pharma, your giant packet doesn’t count, because it’s incomprehensible.
Question: Is it true that there is an “Easy Pay” option?
Answer: I’ve heard that — if and when the plan is confirmed — creditors will receive another packet in the mail. In that packet, they will be given the option to take a “quick” $3,500 payment. I’ve also heard that you will still need to prove your claim in order to get this payment. Again, I’d recommend that folks call Prime Clerk or the Committee of Unsecured Creditors for confirmation or more information.
Question: What just happened with Massachusetts and New York?
Answer: They and 13 other states have decided to accept the proposed settlement. They believe that the extra $50 million they’ve obtained, as well as certain concessions on the planned public repository of documents, now make the deal worthwhile.
I always will have tremendous respect for Massachusetts State Attorney General Maura Healey and her staff, including Sandy Alexander, Gillian Feiner, and every single member of their teams. They’ve done tremendous investigative and litigation work facing overwhelming odds. I am, of course, disappointed by their decision and its roll-out. As recently as two months ago, AG Healey made the following statement to NPR: “The bankruptcy system should not be allowed to shield non-bankrupt billionaires.” I hate to see them agree to any such plan. I can’t understand it.
I’m aware, however, that we don’t have all the information we may need to evaluate the decision. For instance, we won’t know the value of the concessions they’ve extracted on the documents until the public repository is in existence — and until members of the press, academia and the public have had an opportunity to review its contents. But that will take a lot of time.
One thing is clear: the move shifts the balance of power a little bit even more in Purdue Pharma’s favor, as there are now only 9 states (Connecticut, California, Delaware, Maryland, New Hampshire, Oregon, Rhode Island, Vermont and Washington) and the District of Columbia left opposing the plan. I hope they keep fighting like hell.
Of course, the chances of a major reversal are slim to none. For instance, I would have liked to see this company liquidated. Clearly, that’s not going to happen. But where we’re faced with a broken system, one that is clearly dealing a special hand to billionaires, it is meaningful for sovereign states to stand firm and refuse a rotten deal.
Question: What’s next?
Answer: The confirmation hearing will start on August 9th. The Reporters Committee for Freedom of the Press has submitted a letter requesting open, public Zoom access to this important hearing. For the moment, the plan is to have a listen-only telephone line for members of the public. Hopefully, that will change. If you can, please call in. It’s important for the court to know that people are listening and that we care.
There are still many open questions: under what circumstances, if any, will any additional states agree to the settlement? What percentage of each creditor class will approve the plan and will there be any surprises? How will the confirmation hearing unfold? Will there be any surprise witnesses? How much money will personal injury attorneys receive? How many claims will be denied? Will the Department of Justice bring any criminal charges against members of the Sackler family?
We’ll get answers to most of these questions, in time. Some mysteries, however, may endure. For instance, we know very little — in fact, practically nothing — about the people and companies who will benefit from the proposed releases. I’d love to see a spreadsheet with every name, their connection to the Sacklers and/or Purdue, and the contribution they are making (if any) to the settlement that justifies this gift of immunity. In fact, I still can’t believe that creditors are expected to vote on the plan — which is hinged on these releases — without this information.
For those of you who filed and claim and are therefore eligible to vote, it’s important to do so. Let your voice be heard. For those (like law schools and bar associations) who have the networks and capacity to increase public awareness and contribution to public education or support for creditors: it would be a tremendous service.
For those of us who feel angry and frustrated, it’s important to keep sight of any remaining opportunities for advocacy — because they exist. Offering kind support to each other is a form of protest, in a system that focuses only on money.
Since the last, contentious hearing, I’ve been thinking a lot about how the Purdue Pharma attorneys — especially Marshall Huebner — present themselves, their work and their positions during these hearing.
Specifically, Purdue Pharma’s attorneys often mention, during the hearings, the number of hours they’ve worked or the number of sleepless nights they’ve racked up. They also refer, repeatedly, to the incredible complexity and difficulty of the case. All of these things are certainly true. But what is their significance?
The Purdue Pharma bankruptcy is, undeniably, an incredibly complex case — perhaps one of the most complex bankruptcy cases even presented. There are thousands of tort claimants; the harm alleged to have been caused by the company is widespread, grave and ongoing; the company was privately owned by a secretive family of immense wealth, with an intricately-structured empire of trusts, holdings and assets; the business is still active; the Department of Justice and other governmental entities are creditors; there is a raging epidemic of substance use disorder and overdoses that needs to be addressed, immediately.
But let’s not confuse complexity with merit — or hard work with righteousness. This case is the result of long-term strategic decisions intended to shield the company and its owners from financial and reputational loss. I’m sure it’s also an exhausting, detail-intensive, politically intricate job to sell weapons of war, but that doesn’t mean the work benefits humanity.
Bankruptcy court is not designed or intended to achieve justice. It’s a place where folks negotiate a deal — where they try to salvage the most value out of a financial train wreck. It’s a great venue for the right cases, and an unfairly cushy venue, in this case, for a family whose deception and greed sparked an enduring and deadly crisis. When the Sackler family managed to maneuver their way into bankruptcy court, that in itself already was a loss for victims and the public: bankruptcy court is not a place where the Sacklers were going to be confronted with facts publicly or forced to admit wrongdoing. It’s like putting raw dough into an ice cream maker: you’re never getting hot cookies. The attorneys for Purdue Pharma were instrumental to this decision and are still committed to what many of us feel is an unfair outcome. We’ll just never agree — and we will never thank them for it.
[Sidebar: If Purdue Pharma hadn’t filed for bankruptcy, it would have remained in the multi-district litigation (“MDL”) in the Northern District of Ohio, where all opioid lawsuits were brought together under one judge. There are lots of concerns about MDLs, of course, but the opioid MDL is finally bearing fruit, in the form of “bellwether” trials. With evidence publicly aired and witnesses testifying, these trials are suspenseful, but they offer some measure of catharsis. Check out the incredible coverage, for instance, of the West Virginia trial, thanks to Herald-Dispatch reporter Courtney Hessler.]
Not only was the choice of venue meaningful — in terms of bankruptcy court and Judge Drain’s court in White Plains, specifically — but the proposed settlement is the culmination of many choices that favor the Sackler family. From a compensation standpoint, it is also skewed in favor of the states rather than individual victims. The Sackler family are trading money for civil immunity — for themselves, as well as their entourage of enablers (see the 24-page list of release recipients in Appendix H of the Disclosure Statement). The states, meanwhile, are getting the bulk of the money — leaving crumbs for individuals and families who filed claims on their own.
This isn’t just a story about moral ambiguity. It’s the story of a broken system. It’s a story about people in positions of power making choices and executing them, through the efforts of the worlds’ biggest and best law firms. If these peons are hoping for public approval and appreciation, and if they’re feeling sorely misunderstood: I have zero sympathy. The attorneys crying fatigue are richly paid, working at the pleasure and direction of a pharmaceutical company with a history of criminal activity. And they’re lucky to be losing sleep to work rather than to grief.
