The Billionaire Escape Hatch is Not Accountability
On Wednesday morning, I listened in on another hearing in the Purdue Pharma bankruptcy case. I tweeted occasional soundbites and drew cartoons, as I had begun doing a few months ago to make the bankruptcy proceeding more accessible to a lay audience. The hearings have taken on a familiar pattern — rarely are there any surprises.
Judge Robert Drain was considering arguments on a recurring issue: whether to extend the freeze on lawsuits against members of the Sackler family. The lawsuits have been on hold since the beginning of the bankruptcy proceeding, to the dismay of scholars and state attorneys general. On Wednesday, there was a bit more at stake. If Judge Drain had lifted the injunction, he would have provided creditors with a bit more leverage in their last-ditch negotiations, as the deadline approaches to confirm the proposed reorganization plan.
It was not to be. In fact, the outcome of the hearing was a foregone conclusion. Judge Drain’s decision was already drafted; he read it aloud to his audience, Candide quote and all.
The action was elsewhere. For the first time, a hearing raised the question of accountability head-on. And for the billionth time, though perhaps more starkly than ever before, the proceeding revealed a tremendous chasm between the reality of the opioid crisis and this Court’s brand of billionaire justice.
During the arguments, Judge Drain had reserved a peculiar line of questioning for one of the attorneys. His target was Michael Quinn, the only pro bono attorney on the case. Quinn represents the Ad Hoc Committee for Accountability; his clients, who include Nan Goldin, Ed Bisch and Emily Walden, are focused on the lack of transparency, the Sackler’s abuse of the bankruptcy proceeding in their efforts to avoid liability and public disclosure of the Sackler’s decisions and conduct.
The judge wasn’t the only one to take a scolding tone with Quinn.
Marshall Huebner, in his first appearance since publication of the proposed plan, began with some remarks about the Plan. There remained, he confessed, some work to be done, but didn’t hesitate to claim a heroic stance: “This plan is not about money,” he insisted, “it’s about saving American lives!”
He soon turned to Quinn’s most recent brief, objecting to the extension of the injunction. Huebner’s tone turned short — but not his speech. It was a remarkably long and aggrieved comment, for someone who had promised to be both “brief” and “surgical.” Quinn’s latest submission, on behalf of the Committee for Accountability, had likened the proposed plan to Pablo Escobar’s custom-designed prison, La Catedral … Huebner did not appreciate the comparison.
When it came time for Quinn’s remarks, my ears perked up, but the judge was quick to interrupt.
After a few minutes of judicial trolling, Judge Drain suddenly changed course with a surprising question: “What do you mean by ‘accountability’?”
It wasn’t meant to be a softball — he was trying to make the point that bankruptcy court, his court, was the public’s best and only hope for accountability.
I cartooned the moment then put down my pen, flooded with memories. How I would have loved to answer that question.
Facing judgment. Confronting the truth. Admitting your shortcomings. Looking back, voluntarily or not, and seeing what you could have done differently. Taking responsibility for your choices and actions. Seeing your conduct as a series of choices, for which you are responsible.
That’s accountability. It’s what our system of justice is designed to do — just not in bankruptcy court.
Ten years ago, I was running an investigation into a corrupt New York City doctor named Stan Li, when a shocking event propelled us into a state of emergency.
On Father’s Day 2011, one of Dr. Stan Li’s patients donned a disguise, grabbed his gun, walked into his local pharmacy, shot four innocent people in cold blood and stole 11,000 hydrocodone pills. The murder hit the community — and the news — hard.
I never knew how Dr. Li reacted, emotionally, but we later found evidence of his response: a sign went up near the reception desk, informing newcomers that Dr. Li would not be accepting any new patients. He’d been growing his practice exponentially since 2008, selling prescriptions for oxycodone and Xanax in exchange for cash to an average of 70 patients a day, sometimes up to 100 or more. He’d seen it all — patients in a state of overdose, sluggish and semi-conscious, patients reporting their wish to die, desperate parents begging him to stop prescribing, reports of overdose deaths — but it had taken a horrific quadruple murder for him to take his deadly side hustle down a notch.
Dr. Li made other changes as well: he revamped his medical records, switching from barebones notes about ‘increased pain,’ or ‘decreased pain’ with dollar amounts noted in the margins, to lined, formatted sheets in which he recorded blood pressure and urine sample results; he began lecturing patients about compliance and threatening to discharge them.
Was it enough? Should we have allowed him to skate off into anonymity, because there‘d been some evidence of progress and it was unlikely that he’d be able to cause extensive damage again? Should we have asked him for a donation and moved on?
Is that what accountability means? Is that all it requires?
No.
We shut down Dr. Li’s clinic, sought and obtained an indictment on charges of homicide, reckless endangerment, the illegal sales of prescriptions, grand larceny and a scheme to defraud. We spent four months in a New York State courtroom with him, presenting 70 witnesses and hundreds of exhibits. Dr. Li testified in his own defense, called a medical expert and introduced his own exhibits. We laid it out for the jury. They sat, attentive and silent, for eighteen week, then spent a week in deliberations, reviewing dozens of exhibits every day and asking for testimony to be re-read.
The purpose of this exercise was accountability — one of the forgotten bedrocks of our society — and not just for Dr. Li, but also for us, his accusers. After the jury convicted on 198 of 211 counts, the case went to the Appellate Division, First Department, and then to New York State’s highest court, the Court of Appeals. If we, the jury or the judge had gotten it wrong, the court had an opportunity to hold us accountable by reversing the conviction, in whole or in part.
Accountability is the willingness or obligation to accept responsibility. It doesn’t come easy. Accountability is Dr. Stan li, sitting in a courtroom for four months, forced to face and answer for decisions that caused the death of others. Accountability is Dr. Li’s patients, who came before the jury and spoke truthfully about their struggles with substance use disorder and their interactions with the doctor.
Accountability is Lydia Yates, who was the last person to see one of Dr. Li’s homicide victims, Nicholas Rappold, alive. She took the stand and told the jury that this young man, who’d just driven her daughter home, looked intoxicated, and that she told him to leave. She locked the door and set the alarm. He died within a few hours, alone, in his car. Lydia Yates and her daughter, Nicholas’ friend, found him there the next morning. Lydia Yates put her hand on Nicholas’ back and knew he was gone. When she testified, no one in that courtroom would have wanted to be in her shoes.
I’ll tell you what’s not accountability: paying money to be let off the hook. That’s what billionaire members of the Sackler family are proposing to do after having launched the opioid crisis that made Dr. Li’s deadly side business possible. Dr. Li wasn’t the only one — across the country, corrupt physicians modeled themselves after the Sacklers, letting greed lead. Purdue Pharma, owned by members of the Sackler family, also lied to well-intentioned physicians and patients suffering from horrific chronic pain, promising relief without risk. Drug distributors doubled down, sending millions of pills into counties ravaged by a crisis of addiction and overdose.
The Sacklers weren’t the only ones who caused harm, but their decisions and conduct set the stage for our national disaster — and they have never, ever, been forced to face the facts or accept responsibility. Now, they have found shelter in a bankruptcy court where they stand to gain full and forever immunity from civil lawsuits in exchange for money — they are, in fact, willing to pay billions of dollars only if they may avoid accountability entirely.
I still cannot process the contrast between the atmosphere and values of bankruptcy court, where the fate of Purdue Pharma and the Sacklers shall be decided, and the courts and cases where I first met the opioid crisis. None of the events that continue to haunt me and so many families would have occurred but for the deceptive, relentless marketing of OxyContin by Purdue Pharma, under the direction of the Sackler marketing. Accountability requires gritty detail, not broad and forgiving strokes.
So when the judge asked that question — “What do you mean by accountability,” you can imagine where my mind went: Dr. Li’s face when our medical expert condemned his practice; the body language of Lydia Yates, explaining to the jury why she closed her door on Nicholas Rappold; our team’s suspenseful anticipation when the Court of Appeals heard the case.
Accountability is the willingness or obligation to accept responsibility. I’ve seen it. You’ve seen it. We’ve all experienced it at one time or another — and those are the moments that made us better friends, better citizens, better humans. Accountability is something many of us practice every day: we think twice about important choices, especially when they may affect the well-being of others. It’s terrifying, it may be unpleasant — but avoidance is worse.
As for money — Money is not a substitute for accountability. When money substitutes for the truth, that is billionaire justice. The philanthropic escape hatch isn’t on the table for any of the individuals who, in pursuit of a fraction of the Sacklers’ profits, committed opioid-related crimes. Our judges shouldn’t be brokering such deals.
Of course, the judge knows the meaning of accountability. He just doesn’t think it’s achievable.
In fact, as the judge revealed near the end of the hearing, he knows exactly where the current Chapter 11 plan falls short. While attorneys for the debtors conducted an extensive investigation into the Sackler’s profit-driven decision-making and their corruption of corporate governance, none of those findings have been shared with the public.
Gently, in his closing remarks, the judge expressed disappointment: he would have expected more disclosure about the outcome of the debtors’ investigation. Perhaps that could be remedied, he mused.
Was that enough? Should he just let give the debtors a pass and issue a release to the Sacklers without knowing what they’re holding back?
No.
If the judge is disappointed in the level of disclosure, and believes the Plan documents fall short, he should hold the debtors accountable. Their proposed plan was an incomplete mess. A soft-pedaled chiding is not sufficient: the judge has more leverage than that. He should insist on receiving, in short order, a supplementary disclosure laying out the proposed scope of the document depository, the proposed recipients of the release AND the findings of the debtors’ investigation into the Sackler family.
The shooter in the pharmacy murders is serving life in prison. Dr. Li, sentenced to a term of from 10–20 years, died of COVID while incarcerated. Enough shielding Purdue Pharma, the Sacklers and all of their lawyers from reality: it’s time to hold them accountable. By now, we all know what that means.
