I won’t pretend to understand the intricacies of bankruptcy in Harrington v. Purdue Pharma. Beyond the nuances of the legal issues, Judge Kavanaugh has repeatedly expressed sympathy and concern for those affected by the opioid crisis. Here are some highlights:
Today’s decision is legally wrong and devastating to the more than 100,000 opioid victims and their families.
To be sure, many Americans harbor deep hostility toward the Sacklers.
Opioid victims and their families are being denied hard-won relief. Communities devastated by the opioid crisis are being deprived of the funding they need to help prevent and treat opioid addiction. According to the court’s decision, each victim and creditor will receive the basic equivalent of a lottery ticket so that (at most) a few of them may receive compensation in the future. As the bankruptcy court explained, without releasing the non-debtors, there is no good reason to believe that any victim or state or local government will recover anything. I respect but strongly disagree.
After today’s unfortunate and destabilizing decision, opioid victims and other future victims of mass violations will suffer tremendously. Only Congress can fix the chaos that is now going to happen. The court’s decision will cause too much harm to too many people, and Congress cannot stand by and do nothing, at least without taking a closer look at the issue. I would like to express my objection.
I’m reminded of a common Bush doctrine that Justice Kavanaugh often repeated—that we should be on the sunrise side of the mountain, not the sunset side.
Additionally, Kavanaugh repeatedly cited amicus briefs from the Boy Scouts and the Conference of Catholic Bishops, organizations that have their own bankruptcy issues. He highlighted how much bipartisan support was behind the arrangement:
Since then, more victims and creditors have joined. Now, all 50 states have signed on to the plan. The lineup in court was telling. On one side of the case: tens of thousands of opioid victims and their families; more than 4,000 state, city, county, tribal and local government entities; and more than 40,000 hospitals and medical facilities. They both urged the court to uphold the plan.
Justice Kavanaugh also provided a table of contents for his dissent, which was about twice as long as the majority opinion:
To clarify this objection for the reader: Part I (pages 5 through 18) discusses why nondebtor discharge is often appropriate and necessary, particularly in mass tort bankruptcies. Part II (pages 18 through 31) explains why a nondebtor exemption is appropriate and necessary in the Purdue University bankruptcy case. Part Three (pages 31 to 52) deals with the Court’s counterarguments and why I disagree with them. Part IV (pages 52 to 54) concludes.
Not sure I’ve seen anything like this before.
In an alternate universe, during last night’s debate, one of the candidates might have mentioned the impact this decision had on the opioid crisis.
