Mass torts create a unique scale of harm and liabilities. Corporate tortfeasors are desperate to settle claims but condition settlement upon resolution of substantially all claims at a known price—commonly referred to as a global settlement. Without this, corporate tortfeasors are willing to continue with protracted and fragmented litigation across jurisdictions. Global settlements can be elusive in these cases. Mass torts are oftentimes characterized by non-homogenous victim groups that include both current victims and unknown, future victims—individuals whose harm has not yet manifested and may not do so for years. Despite this incongruence, the claims of these future victims must be aggregated as part of any global settlement. This is the tragedy of the mass tort anticommons: without unanimity, victim groups are unable to access settlement resources in a timely or meaningful way, but actual coordination across the group can be impossible.
Current resolution structures have proven ill-equipped to efficiently and equitably address the novel challenges posed by mass torts. Many cases cannot satisfy Rule 23’s requirements for class action certification. Multidistrict litigation is the most frequently invoked resolution structure, but the MDL process is distorted. The process was initially designed for one district court to streamline pretrial procedures before remanding cases for adjudication. Instead, MDL courts have turned into captive settlement negotiations. In response, a new strategy for resolving modern mass torts has emerged. Corporate tortfeasors—including Purdue Pharma, Boy Scouts of America, and USA Gymnastics—have started filing for bankruptcy. These mass restructurings automatically halt the affected MDL cases and transfer proceedings to a bankruptcy court—a process I describe as bankruptcy preemption. Unfortunately, bankruptcy preemption replaces one deficient structure with another. Mass restructuring debtors are exploiting statutory gaps in the bankruptcy code in order to bind victims through an unpredictable, ad hoc structure. The new bargain creates myriad risks, including insolvent settlement trusts and disparate treatment across victim classes.
This Article is the first to attempt a reconceptualization of how modern mass torts should be resolved and delivers an unprecedented normative construct focused on addressing anticommons dynamics through statutory amendments to the Bankruptcy Code. These changes, coupled with an evolved perspective on fundamental structural anomalies, are designed to improve predictability, efficiency, and victim recoveries. More broadly, this Article attempts to animate scholarly debate of this new, non-class aggregate litigation strategy that will reshape the field.
By Jonathan C. Lipson (Temple University Beasley School of Law), Adam J. Levitin (Georgetown Law Center), Stephen J. Lubben (Seton Hall University School of Law)
Recently, we (along with colleagues at other law schools) asked that an examiner be appointed in the Purdue Pharma chapter 11 bankruptcy case, pending in the Southern District of New York. Although the Bankruptcy Court has not yet acted on that request (technically, it was in the form of a letter to the United States Trustee), it has generated controversy and media attention (e.g., WSJ, WaPo, Rachel Maddow), which will likely persist until there are credible answers to the questions that motivated our request:
What was the role of the Sackler family (the owners of Purdue) in Purdue’s role in the opioid crisis? and
To what extent did the Sacklers or other insiders strip assets out of Purdue in anticipation of bankruptcy?
Chapter 11 of the Bankruptcy Code governs corporate reorganizations, such as Purdue Pharma’s, and provides that an examiner can be appointed if, among other things, it is in the interests of creditors and the debtor’s bankruptcy estate. Here, we argued that there is an overwhelming public interest which overlaps with the estate’s interest. This makes the need for an independent report on these two questions compelling.
As is well known, Purdue Pharma is at the center of the opioid crisis in America, having developed and marketed Oxycontin (among other drugs). This crisis has generated more than 2600 lawsuits against Purdue and the Sacklers, many brought by state and local governments that have had to bear the costs of drug addiction. The debtors and the Sacklers have proposed a settlement under which the Sacklers would cede the company to a “public trust” and make additional contributions, in exchange for releases. The settlement is alleged to be between $10 and $12 billion, with $3 billion of that coming from the Sacklers directly. While some plaintiffs have agreed to the settlement, others have not, and are fighting the bankruptcy process.
Like many mass tort debtors—from Johns-Manville to PG&E—Purdue seeks to channel and control its liability through bankruptcy reorganization. Bankruptcy Judge Robert Drain, of the Southern District of New York, has stayed the lawsuits, not just against Purdue, but also against the Sacklers, even though they are not debtors in bankruptcy—in order to permit the debtors to negotiate a plan of reorganization that would embody the proposed settlement.
We argued that an independent examination would answer the two key questions more credibly and efficiently than other mechanisms in bankruptcy for three reasons.
First, unlike many mass-tort bankruptcies, these cases appear to shield non-debtors (the Sacklers) from discovery and potential liability, even though there are credible allegations that they may have actively contributed to the opioid crisis and/or stripped assets from the debtors. The important question is not whether the Sacklers are making a contribution to a bankruptcy plan in exchange for a release from future liability, but whether their contribution is appropriate in light of the answers to our two questions. It will be very difficult to assess that without an independent examiner’s report.
Second, because Purdue Pharma is privately held, it is hard to know what happened at the company before bankruptcy. The debtors have appointed a special committee of the board to look into the pre-bankruptcy transfers, but because the Sacklers apparently still control the debtors, it is hard to know how independent this committee was, or can be. The committee is, for example, represented by the same counsel as Purdue Pharma, which may hamper the committee’s independence. In any case, even where other high profile debtors, such as Enron, have used independent committees to investigate allegations of wrongdoing, courts have nevertheless appointed bankruptcy examiners to assess, verify, and supplement the work of those committees. It is hard to see why Purdue should be different.
Third, and perhaps most important, the opioid crisis is not like other mass torts because it has generated extraordinary public interest. Victims of the opioid crisis understandably want their day in court—which is something that bankruptcy tends to eliminate. While thousands of lawsuits would be wasteful, failing to take seriously the dignitary interests of victims of the opioid crisis could threaten the legitimacy and integrity of the bankruptcy system. At the same time, if an independent examiner exonerates the Sacklers, this may help provide the redemption that they presumably want.
Although the United States Trustee has not yet sought an examiner, there have been three interesting developments since we sent the letter:
On November 6, 2019 Marshall Huebner, counsel to the debtor in possession, emailed us to say that “the Debtors (likely along with other core stakeholders) intend to strongly oppose the request, which, with apologies to its authors, contains many misstatements of fact.” However, Huebner identified no “misstatements of fact” (much less “many”).
On November 15, 2019, ten days after we sent the letter, the debtors filed a stipulation with counsel to the creditors committee and certain members of the Sackler family. The debtors and the Sacklers agreed to produce certain information to the committee (on a “professional eyes’ only basis”) that may respond to certain of the questions we asked, but in exchange the committee relinquished its right to seek an examiner until mid-April 2020. It is not clear how estate fiduciaries can properly cede such rights.
On December 16, 2019, the debtors filed a redacted version of the “independent” report noted above. It indicates that the Sacklers took about $10 billion in cash out of the debtors since 2008. This is not surprising, since the total value of the proposed settlement would have a face amount of about $10 billion (but a substantially lower present value given its payment schedule, and would not cover interest on the $10 billion).
The takeaway seems to be that, even though no examiner has been appointed, the Sacklers and the debtors in possession have begun to produce some information that may help to answer the questions we believe are central to this case. In this regard, the mere threat of an examiner might be having an effect. However, the ability to assess and verify this information is limited, at least for the time being.
That no one has actually requested an examiner is, at one level, not surprising. It is easy to imagine that managing this case is exceedingly difficult. The insiders in the case—especially counsel to the debtors and the official committee, and Judge Drain—may view an examiner as a wrench in the delicate machinery of the proposed settlement. Parties might therefore prefer to maintain the threat of an examiner, even as they are reluctant to pull the trigger on a motion.
The Purdue bankruptcy is, however, bigger than the financial claims of any of Purdue’s creditors. Purdue is a not a case that can be run like a standard chapter 11 because there is a strong public interest in establishing a clear and independent record of what Purdue and the Sacklers knew and did about the dangers of opioids, and the extent of the Sacklers’ transactions with Purdue. Establishing these facts credibly is important not just for the dignitary interests of opioid victims and their families, but also so that creditors can properly evaluate any settlement that emerges as part of the reorganization process.
Without credible answers to the questions we asked, there will be a shadow over these cases, one that may ultimately threaten the integrity of the reorganization process.