By Hadassa Kalatizadeh
U.S. Bankruptcy Judge Robert Drain of White Plains, New York, has his work cut out for him. The judge is overseeing the complex bankruptcy case of OxyContin maker Purdue Pharma. He will ultimately decide if the company’s $12 billion plan to settle more than 2,700 lawsuits over its role in the opioid crisis will be approved. Opioids have killed 400,000 people in the U.S. over the past two decades alone, claiming about 115 American lives daily. The company and members of the billionaire Sackler family, who own the company, have been sued for their responsibility in fueling the crisis as the market leader in prescription opioids. Purdue’s own records show that OxyContin had over 28 percent of the total market share in gross sales between 2008 through 2018. Total sales for the pain pill were $35 billion since 1996, as per STAT News.
The proposed settlement which would bundle all the lawsuits, for the severest public health crises in the nation’s history, is being widely criticized. As reported by the Associated Press, half of the country’s State Attorneys Generals plus many victims have disparaged the $12b billion settlement plan, vowing to push forward with their own lawsuits. They hold that the deal does not squeeze enough money out of the company, and moreover that it doesn’t contain a confession of guilt.
At the October hearing, Judge Drain cautioned that expecting admissions and apologies is not always how it works in the real legal world. “There are trials where people stand up and say, `I did it’ — and that usually happens on `Perry Mason’ only.” He also warned that pressing forward with individual lawsuits is a precarious approach that can blow up into a global settlement, leaving plaintiffs empty-handed. As an example of this, he referred to the “doomsday machine” in “Dr. Strangelove”, the 1964 movie.
A Yale graduate, Drain attended Columbia law School and later worked as a bankruptcy lawyer for close to two decades. In 2002 he was appointed, by the federal appeals court, to his current position as the bankruptcy judge handling big business cases in New York. He has ample experience in big-time corporate cases including: Hostess, Sears, Reader’s Digest, auto parts maker Delphi and the grocer A&P. Some say his history shows he has often sided with the big companies seeking bankruptcy protection when presiding over the highest-profile cases. “If he thinks the debtor is in good faith attempting to reorganize, he will, on balance, support that when he can,” said Jonathan Lipson, a law professor at Temple University who worked for Drain in private practice long ago. “The tie goes to the debtor.”
But in the October hearing, Drain seemed attentive to the victims too, remarking in court during one instance, “What we’re talking about here is flesh and blood.” In cases such as this, opioid victims are guaranteed a role in the proceedings, being granted several seats for an official committee of unsecured creditors. Drain took it a step further and asked for an advocate for victims to coordinate with state attorney generals.
In fact, Drain has had interest in this case long before the case showed up on his desk. In 2013, he self-published a 460-page fictional book entitled “The Great Work in the United States of America”. In the novel, one of the central characters is addicted to opium, and another character blames greedy pharmacies for persisting to sell the lucrative drugs.
So far in the case, however, Drain has been open to accepting to Purdue’s requests in major rulings including holding off till April, temporarily halting civil litigations, and accepting the company request to pay its employees bonuses, except maybe the CEO. He also repeatedly raised his voice and cut-off state’s attorneys. The next omnibus hearing is scheduled for January 24th.
