Partisan Divide Grows Over Opioid Settlement Plan

Originally published on October 21, 2019 7:18 am

The nation's response to the deadly opioid epidemic has been broadly bipartisan, but deep divides have emerged over a settlement plan offered last month by Purdue Pharma, the maker of Oxycontin.

Democratic state attorneys general have generally panned the deal, which would force Purdue's owners, member of the Sackler family, to give up control of their company while paying roughly $3 billion in cash from their personal fortunes.

Josh Stein, the Democratic attorney general in North Carolina, wants the Sacklers to pay a lot more. "They are more responsible than any for all the death and destruction our nation has experienced," Stein told NPR. "They have to make a meaningful and certain contribution to clean up the mess they helped to create."

So far, only two Democratic attorneys general nationwide have backed the plan, with more than 20 rejecting it.

Republican attorneys general, meanwhile, have mostly embraced the structured bankruptcy plan. They say the deal isn't perfect but it would get money to communities fast.

"It is, I think, the best deal that can be obtained," said Dave Yost, the attorney general in Ohio, in an interview with public radio's Ideastream network. "It's going to put money on the street to help get treatment and do all the other things that we need."

Different theories have emerged to explain why a partisan divide has grown over the Purdue Sackler settlement.

Massachusetts Attorney General Maura Healey is one of many Democratic attorneys general to reject the Purdue Pharma settlement.
Steven Senne / AP

Richard Ausness, an expert on opioid litigation at the University of Kentucky, says there have always been cultural differences in the way Republican and Democratic attorneys general view the opioid fight.

"Some of the Democratic politicians, more so than the Republicans, are on a crusade," Ausness said. "This is a moral issue for them, not just simply a matter of economics. They want to punish the drug companies for what they did, and not simply make a deal with them."

Ausness says some Republican AGs, meanwhile, are eager to put the opioid fight behind them. They tend to have much closer ties to the drug industry and in general have been more reluctant to sue corporations.

Republican AGs face pressure

Another factor may be the experience of some Republican AGs, who've risked a political backlash from fellow conservatives after taking on the drug industry.

Mike Hunter, the Republican attorney general in Oklahoma, prevailed in a court fight with Johnson & Johnson and won a $270 million settlement with Purdue Pharma.

But he's also faced criticism from The Wall Street Journal's editorial board for "scapegoating" drug companies. And he barely survived a bitter primary fight last year, after a conservative challenger attacked him over his decision to hire outside counsel to help with opioid litigation.

"It's been tough," Hunter said, speaking to a gathering of the Bipartisan Policy Council this summer. "The extent to which this lawsuit was part of the discussion during the election was certainly regrettable. That was something that certainly gave me pause."

Family and friends who lost loved ones to OxyContin and opioid overdoses left pill bottles in protest outside the Stamford, Conn., headquarters of Purdue Pharma in August 2018.
Jessica Hill / AP

The role of Luther Strange

NPR found that much of the political pressure faced by Republican AGs who pursued opioid litigation has come from one highly influential conservative: Luther Strange.

He's a former US Senator from Alabama who served as that state's Republican attorney general. He also led the Republican Attorneys General Association until 2017.

Strange didn't respond to NPR's repeated requests for an interview but, over the last year, he emerged as a prominent critic of opioid lawsuits.

He objects to state attorneys general hiring outside law firms to help sue Big Pharma. He also argues that AGs who use so-called "public nuisance" claims to hold companies accountable set a dangerous legal precedent, expanding liability for companies accused of harming the public.

"I've written on this recently because it is a blooming problem and issue around the country," Strange said at a gathering of the conservative Federalist Society in June.

He predicted the public nuisance legal arguments now being used against opioid defendants like Purdue Pharma "will be used against almost any other broad social issue."

Cheryl Juaire (center) of Marlborough, Mass., leads protesters near the Arthur M. Sackler Museum at Harvard University in April 2019. Parents who lost children to opioid overdose campaigned for the removal of the Sackler family name from the building at Harvard.
Josh Reynolds / AP

NPR has learned that while Luther Strange was championing conservative arguments against opioid lawsuits, he was also working behind the scenes as a paid attorney for members of the Sackler family.

According to a source with detailed knowledge of the matter, Strange represented his clients at a gathering of the Republican Attorneys General Association in West Virginia over the summer, where he worked to convince AGs to accept Purdue Pharma's bankruptcy plan.

Sources contacted by NPR say factors other than politics clearly shaped how individual state AGs reacted to this deal. Some states embracing the settlement plan are desperate for cash and want a quick settlement. Others have laws that make it hard for them to pursue the Sacklers individually in court.

A few Republican attorneys general, meanwhile, have rejected the proposal.

"The settlement deal was grossly inadequate to address the harm that they caused and so we just said no," said James Boffetti, an associate attorney general in New Hampshire.

But the partisan divide over the Purdue Sackler settlement is now a major sticking point. To get a plan finalized and approved by the bankruptcy court in New York, Purdue Pharma will likely need more Democratic states on board.

Those negotiations are underway, but so far Democratic AGs are sticking to their demand that the Sacklers forfeit more of the personal fortune they amassed from opioid sales, valued at more than $13 billion.

Correction: 10/20/19

An earlier version of this story misstated Josh Stein's first name as Joel.

Copyright 2019 NCPR. To see more, visit NCPR.

LULU GARCIA-NAVARRO, HOST:

There's a struggle still going on over an opioid settlement worth billions of dollars. It's being offered by Purdue Pharma, the company that makes Oxycontin. As North Country Public Radio's Brian Mann reports, a growing partisan divide has added to the controversy surrounding the deal.

BRIAN MANN, BYLINE: For much of the last decade, the response to the opioid crisis has been pretty bipartisan. But when Purdue Pharma came forward with a bankruptcy plan last month, that changed. It requires members of the Sackler family to give up control of their company and forfeit up to $3 billion of their personal wealth. Democratic attorneys general mostly rejected the deal. Joel Stein (ph), the AG in North Carolina, says the Sacklers should pay a lot more.

JOSH STEIN: They are more responsible than any for all the death and destruction that our nation has experienced. And they have to make a meaningful and certain contribution to clean up the mess that they helped to create.

MANN: The Republican AGs, meanwhile, mostly embrace the bankruptcy plan. They say the deal isn't perfect, but it gets money flowing to communities fast. Dave Yost is AG in Ohio, one of the states hardest hit by the addiction crisis.

DAVE YOST: It's I think the best deal that can be obtained, and it's going to put money on the street to help get treatment and do all the other things that we need.

MANN: There are different theories for why this partisan divide emerged over the Purdue-Sackler settlement. Richard Ausness is an expert on opioid litigation at the University of Kentucky. He says there have always been cultural differences in the way Republican and Democratic AGs view the opioid fight.

RICHARD AUSNESS: Some of the Democratic politicians more so than the Republicans are on a crusade. They want to punish the drug companies for what they did and not simply make a deal with them.

MANN: Ausness says some Republican AGs are eager to put the opioid fight behind them. They tend to have much closer ties to the drug industry and in general have been more reluctant to sue corporations. And some Republican AGs who take on companies like Purdue Pharma have risked a political backlash from fellow conservatives.

MIKE HUNTER: It's been tough.

MANN: Mike Hunter, Oklahoma's Republican AG, sued Purdue Pharma and Johnson & Johnson. He barely survived a bitter primary fight last year after a conservative challenger attacked him over his decision to hire trial attorneys to help with opioid lawsuits. He described the pushback he faced speaking to a gathering of the Bipartisan Policy Center.

HUNTER: The extent to which this lawsuit was part of the discussion during the election was certainly regrettable. That was something that certainly gave me pause.

MANN: Much of the political pressure faced by Republican AGs has come from one highly influential conservative - Luther Strange. He's a former U.S. senator from Alabama who served as that state's Republican attorney general. He also led the Republican Attorneys General Association until 2017. Over the last year, Strange has emerged as a prominent critic of opioid lawsuits, arguing that AGs who use the courts to tackle the opioid epidemic set a dangerous precedent, expanding potential liability for companies accused of harming the public.

LUTHER STRANGE: It'll also be used against almost any other broad social issue that lawyers either - they're either frustrated at the legislature or the executive branch won't actually address, so they take it to the court system.

MANN: Strange didn't respond to NPR's repeated requests for an interview. He spoke there at a gathering of the conservative Federalist Society in June. NPR has learned that while Luther Strange was building an influential conservative argument against opioid lawsuits, he was also working behind the scenes as a paid attorney for members of the Sackler family. According to a source with detailed knowledge of the matter, Strange represented his clients at a gathering of the Republican Attorneys General Association over the summer, where he worked to convince AGs to accept Purdue Pharma's bankruptcy plan.

It's clear other factors shaped how individual AGs reacted to this deal. Some states are desperate for quick cash, others have laws that make it hard to pursue the Sacklers individually in court. But this partisan divide over the Purdue-Sackler settlement is now a big sticking point. To get the deal finalized and approved by a bankruptcy court, Purdue Pharma will likely need more Democratic attorneys general on board. Those negotiations are under way.

Brian Mann, NPR news Transcript provided by NPR, Copyright NPR.