Brett Kavanaugh Warns Supreme Court Decision Will Cause 'Too Much Harm'

Justice Brett Kavanaugh warned that the Supreme Court's decision on the Purdue Pharma opioid settlement will cause "too much harm" if Congress fails to respond to the ruling.

The Supreme Court blew up the multibillion-dollar bankruptcy plan for Purdue Pharma, the maker of OxyContin, on Thursday, finding that the settlement inappropriately included legal protections for the Sackler family, which controlled the company. In a 5-4 decision that was ideologically scrambled, the court sided with the Biden administration's objections to the agreement.

Although the decision will reject a proposed legal shield for the Sacklers, it also upends the billions of dollars that the family had committed to pay victims of the opioid epidemic. As part of the deal, the Sacklers had agreed to pay $6 billion to settle opioid-related claims and $750 million in compensation to victims in exchange for a complete release of civil liability in future opioid-related cases.

"Opioid victims and other future victims of mass torts will suffer greatly in the wake of today's unfortunate and destabilizing decision," Kavanaugh warned in his dissent. "Only Congress can fix the chaos that will now ensue. The Court's decision will lead to too much harm for too many people for Congress to sit by idly without at least carefully studying the issue."

Kavanaugh, a Trump appointee, was joined by Chief Justice John Roberts and two of the court's three liberals, Justices Sonia Sotomayor and Elena Kagan. Justice Ketanji Brown Jackson, the third liberal on the bench, sided with her conservative colleagues.

"Today's decision is wrong on the law and devastating for more than 100,000 opioid victims and their families," the dissent read. "The Court's decision rewrites the text of the U. S. Bankruptcy Code and restricts the long-established authority of
bankruptcy courts to fashion fair and equitable relief for mass-tort victims. As a result, opioid victims are now deprived of the substantial monetary recovery that they long fought for and finally secured after years of litigation."

Purdue's marketing of OxyContin to doctors and pain patients has been widely viewed as a catalyst of the nation's opioid crisis. Between 1999 and 2009, after the drug went on the market in 1996, nearly 247,000 people in the U.S. died from prescription-opioid overdoses.

The company filed for Chapter 11 bankruptcy in 2019, but members of the Sackler family did not. The family kept billions in revenue from Purdue and chose to negotiate a separate deal instead that allowed the company to reinvent itself as the Sacklers settled the lawsuits that had been put on hold by the bankruptcy filing.

In his dissent, Kavanaugh argued that the bankruptcy court had exercised its discretion in the matter "admirably," arguing that the plan "guaranteed substantial and equitable compensation" to Purdue's victims and provided significant funding for state and local governments to treat addiction. He called the agreement "a shining example of the bankruptcy system at work."

"But the Court now throws out the plan—and in doing so, categorically prohibits non-debtor releases, which have long been a critical tool for bankruptcy courts to manage mass-tort bankruptcies like this one," the justice wrote.

"The opioid victims and their families are deprived of their hard-won relief," he said.
"And the communities devastated by the opioid crisis are deprived of the funding needed to help prevent and treat opioid addiction.

"As a result of the Court's decision, each victim and creditor receives the essential equivalent of a lottery ticket for a possible future recovery for (at most) a few of them. And as the Bankruptcy Court explained, without the non-debtor releases, there is no good reason to believe that any of the victims or state or local governments will ever recover anything."