Calls to prosecute Purdue Pharma persist
STAMFORD — Purdue Pharma is trying to settle approximately 2,700 lawsuits through its bankruptcy. But some critics of the company say the judicial system still has not held the OxyContin maker and its owners fully accountable.
As it grapples with those civil cases alleging that it fueled the opioid crisis with fraudulent OxyContin marketing, the company has largely avoided criminal prosecution. Dismayed activists have implored state officials to take further action, arguing that the company and the Sackler family members who own the firm have not been punished for their purported malfeasance. But state prosecutors have not hinted at any plans to file charges, while the company’s bankruptcy could achieve some of the main goals of a criminal case.
“These criminal cases would not necessarily be easy to prove because you would have to show the responsible corporate executives had some knowledge of what was going wrong and had the power and responsibility to stop that and did not,” said Carl Bornstein, a former state and federal prosecutor now in private practice who is also an adjunct assistant professor at the John Jay College of Criminal Justice in Manhattan.
Purdue declined to comment for this article. Messages left for a spokesperson for the Sacklers were not returned.
In previous statements, the company and the Sacklers have denied the lawsuits’ allegations and said the company’s owners and executives did not commit any wrongdoing.
Grassroots pressure
About a year before the state sued Purdue and eight of the Sackler family members who own the firm, the company confirmed in late 2017 that it was cooperating with a separate probe by the U.S. Attorney’s Office in Connecticut.
The USAO, which is part of the U.S. Department of Justice, has so far declined to comment on the status of the inquiry or
on purported talks to settle the investigation.
Since then, many activists have grown impatient with the lack of prosecution. Paralleling the lawsuits’ accusations, they have assailed the company and the Sacklers, on social media and at protests, for allegedly exacerbating the opioid crisis with dishonest and reckless marketing and distribution of OxyContin.
“Misbranded pills and pill circumvention have destroyed our country and not prosecuting the Sacklers and other individuals involved in these crimes sets a precedent that will ensure further bad corporate behavior and further cartel involvement in these same firms deemed ‘too big to prosecute,’ ” activist Brian Merlen wrote in an email last week to the state Division of Criminal Justice, a number of elected officials and other activists.
He said he was involved in a related letterwriting campaign to the Office of the Chief State’s Attorney, which is part of the DCJ.
Merlen told Hearst Connecticut Media that he speaks for the Connecticut Church of Safe Injection, an interfaith organization that focuses on harmreduction strategies, including needleexchange programs, “safeinjection sites” and “sensible” drug policy and education. He previously ran as a Green Party candidate for the state House of Representatives and Stamford Board of Representatives.
Other activists have also argued for charges against the Sacklers.
“Holding them criminally accountable will delay and discourage future epidemics,” said Fernando Luis Alvarez, who coorganized the dropping of an 800pound spoon outside the company’s headquarters in a June 2018 protest and is now leading a Spoon Movement to raise awareness about the opioid crisis. “And it will go down in history as a gamechanger not only for today’s generation, but also for future ones, as people will wonder why it was not done sooner.”
The DCJ said in a statement this week that it “does not comment on matters that may or may not be under investigation.”
But in the same statement, the division appeared to acknowledge Merlen’s correspondence, saying “we have received emails primarily from one individual requesting prosecution of Purdue Pharma and its principals on state criminal charges.”
“We have responded that the matter does not appear to fall under state criminal jurisdiction and have recommended that those individuals direct their concerns to the federal authorities,” the statement added. “We have also noted that we will continue to monitor the situation and civil developments involving the Office of the state Attorney General and respond as warranted.”
Connecticut Attorney General William Tong responded in a statement that “the Office of the Attorney General is doing everything we can to hold Purdue and the Sacklers accountable using our civil and consumer protection authority. Only the U.S. Department of Justice and the Connecticut Division of Criminal Justice have criminal jurisdiction in this matter.”
In a rare case in which it was prosecuted, Purdue, as a company, and three former and thenexecutives pleaded guilty in 2007 to charges of OxyContin misbranding. In total, they incurred about $635 million in penalties. The executives did not serve any prison time.
Since then, neither the company nor its owners appear to have faced any additional charges.
Prosecutions of other major opioid makers and distributors are also uncommon, although this year has produced a major guilty verdict.
In May, a federal jury in Boston convicted five former executives and managers of Insys Therapeutics, including cofounder John Kapoor, of involvement in a racketeering conspiracy aimed at raising profits.
Around the same time, federal prosecutors announced charges against Rochester Drug CoOperative and its former CEO and former chief compliance officer related to illegal trafficking of oxycodone and fentanyl opioids to pharmacies and conspiracy to defraud the U.S. Drug Enforcement Administration.
At the same time, prosecutors outlined an agreement in which RDC would pay a $20 million penalty. In exchange for the firm’s compliance with the pact, prosecution would be deterred for five years; after that time, prosecutors would seek to dismiss the charges.
“There’s a much higher standard of proof in the criminal cases,” said Richard Ausness, a professor of law at the University of Kentucky. “There are a variety of criminal statutes out there related to these types of charges, and some of them require proving intent. With corporations, they often have divided authority, and it can be really hard to point your finger and say ‘Person A knew what was going on.’”
Impact of bankruptcy
Despite the lack of prosecution, the litigation has already catalyzed sweeping changes at Purdue.
The company filed for bankruptcy last month to try to resolve the pending lawsuits. The company estimates that it will spend about $263 million this year in legal and related professional services.
The Sacklers have offered to pay the plaintiffs at least $3 billion, while also contributing funding from the sale of their international pharmaceutical businesses.
In addition to the prospective payouts, the Sacklers have offered to relinquish control of Purdue and let it be turned into a public trust or similar entity.
“A fundamental goal of a criminal prosecution is to stop the alleged perpetrators from committing illegal activity,” Bornstein said. “If the bankruptcy that Purdue filed gets the leadership of the corporation out of there, that accomplishes what would be a major objective of a criminal prosecution.”
In its largest resolution so far of the cases filed in the past few years, Purdue settled in March with Oklahoma for $270 million. Most of the funds were allocated for a new addiction researchand treatment center at the Oklahoma State University campus in Tulsa.
On Monday, the country’s threelargest drug distributors and Israeli pharmaceutical firm Teva agreed to a $260 million settlement. The 11thhour agreement avoided the first federal trial linked to the opioid crisis.
Purdue was also named as a defendant in the same “multidistrict litigation” group of more than 2,000 city and county lawsuits against a number of opioid makers and distributors that had been consolidated in federal court in Cleveland. Its bankruptcy filing precluded the MDL plaintiffs’ claims against the company going to trial.
“The civil settlements will not even cover a year worth’s of our countries (sic) funding needs even if not a penny was misspent on other programs by states anxious to treat us as a slush fund!” Merlen wrote in his email. “The civil suits will not discourage this from happening again!”
The attorneys general who have sued Purdue have expressed more optimism about prospective settlement funds, but cautioned that they must be carefully managed. Tong has repeatedly said that any settlement money received by Connecticut must be allotted to opioidfocused treatment, prevention and research programs.