A federal judge overseeing Purdue Pharma’s multi-billion-dollar bankruptcy proceeding has lashed out the press — and, by logical conclusion, the New York Times in particular — largely because of an opinion piece concerning the family which controls the pharmaceutical giant, the massive company itself, and several of the company’s products, which include the drug OxyContin. Judge Robert D. Drain, of the U.S. Bankruptcy Court for the Southern District of New York, went so far as to call a “misinformed reporter” both an “idiot” and a “numbskull” in open court. He even suggested that because he cannot directly “muzzle the press,” people should instead “stop buying” so-called “click bait” publications which disseminate “totally irresponsible articles,” which he then further referred to as “trash.”
The following passage, per the court’s transcript of a July 23 hearing in the matter, came after Judge Drain counseled the parties to work together to quickly mediate their ongoing disputes: “It doesn’t matter what some numbskull op-ed writer puts in or a misinformed reporter puts in. It matters what’s laid out on the record, ultimately.”
The transcript, which is not yet part of the case’s public docket, was provided to Law&Crime.
The bankruptcy court proceeding is part of a proposed $10 billion settlement between Purdue Pharma, members of the Sackler family, and roughly 3,000 state and local governments who sued with claims that the company’s marketing of drugs such as OxyContin played a role in America’s opioid crisis.
The word “numbskull” is itself misleading. The word should actually occur in the plural — “numbskulls” — as it is almost certainly directed at the two authors of a New York Times opinion piece published July 22. Mitch Hurley, an attorney who is representing unsecured creditors in the Purdue Pharma litigation, brought the New York Times piece to the attention of the judge during a discussion about discovery in the case (here is the transcript, pages 44-45):
But discovery is always burdensome. The question is whether the burden is undue under the circumstances, and in light of the importance of the issues that we’re investigating. Their vast resources and the billions of dollars at stake, we don’t think there’s any serious doubt that the burden that’s being placed on them is proportional to the needs of the case. Critically, at least in our view, it’s not just Purdue’s creditors that support this painstaking examination of Purdue that we are undertaking.
Increasingly, an examination of that client has been demanded by victims, activists, the public at large. A piece was published in the New York Times, I believe only yesterday, with the headline, “The Sacklers Could Get Away With It.” Numerous activists and others have written Your Honor to seek appointment of an examiner, I think to try to ensure that the Sacklers, in fact, don’t “get away with it.”
Now, we don’t think an examiner is an answer.
In other words, in the view of Purdue Pharma’s unsecured creditors, another layer of personnel was unnecessary.
The original New York Times piece, written by attorney and author Gerald Posner and by law professor Ralph Brubaker, said that “the federal court handling Purdue’s bankruptcy case will help [the Sacklers] hold on to their wealth by releasing them from liability for the ravages caused by OxyContin.” The opinion piece also characterized the bankruptcy proceedings as follows:
The Sacklers would walk away with an estimated several billion of OxyContin profits while leaving unresolved a crucial question asked by victims and their families: Did the Sacklers create and coordinate fraudulent marketing that helped make their best-selling drug a deadly national scourge? With that question left unanswered, many of those injured by OxyContin would feel victimized again.
Not long after publication, however, the New York Times opinion piece was itself corrected as follows:
An earlier version of this article was imprecise in discussing the number of deaths and addictions that can be attributed to the popular opioid OxyContin. Experts say opioid use has led to millions of addictions and hundreds of thousands of deaths; it is unclear what proportion OxyContin is responsible for.
Back to the litigation. Enter attorney Gregory Joseph, who represents some of the Sackler family. After saying that enough documents have been turned over to fill “half the volume of the Library of Congress” or about “30 Sears Towers,” Joseph took aim at the insertion of the New York Times piece into the case (transcript, page 53):
I find it highly, highly offensive for Committee counsel to be talking about the Sacklers getting away with something. They have not articulated a claim and we don’t believe there ever will be a claim they can articulate against the Sacklers, and I think that ought not have been stated, whether it’s under the guise of quoting the headline of an op-ed piece in the New York Times and then saying the Sacklers may be able to get away with it, which is the Committee saying something which they have no right to say. They stated no claims, but I don’t want to carry on. Thank you, Your Honor.
Hurley responded after making a few other points (transcript, page 54):
We certainly didn’t make an allegation against the Sacklers with respect to what they’re going to get away with. Of course, I was just pointing out that there are many victims and members of the public in general that are very interested in this case and are watching it very carefully, including, as I think from that article that I cited in the New York Times, I think, is just one example, but our investigation is underway, as Mr. Joseph just pointed out. It’s our intention to continue and complete that investigation. It is a complex investigation, but we are staying focused, Your Honor, very closely on the claims at issue. Those claims require an investigation of a series of — that took place over an extended period of time and they do require an examination of a lot of material.
The judge was not amused. He addressed the legal dispute while taking aim at the press (transcript, page 68):
The hardest part of this case, and it always has been, is dealing with the claims against and potential contribution by and release of, for wont of a better term, the Sacklers.
I have made it crystal clear since the beginning of this case that the due diligence behind an agreement with the Sacklers that would be embodied in a plan is going to be of an unusually high level in order to achieve consensus in this case, just given the visibility of the case, but I’m not talking about visibility to members of the press who want to get clicks, but legitimate concerns that public officials and creditors have about the quid pro quo for relief.
The discovery here is, I think, extraordinary for a bankruptcy case. One of the reasons that settlements are so highly accepted in bankruptcy cases is the realization that there’s not enough money to go around and that with reasonable due diligence, parties should be able to decide how to allocate it and settle claims and causes of action without incurring the full cost of litigation.
Though the judge did not call out the New York Times or the opinion writers by name, he did trash the referenced opinion piece’s logical trajectory and indicated that the public should not support “utterly misguided,” “completely false,” and “totally irresponsible” publications (from earlier in the transcript, page 56):
The press, who in a number of totally irresponsible articles led people who have truly suffered, because of the opioid crisis, to believe that there is no investigation going on, that this case’s purpose is somehow to let the Sacklers get away with it and that without the appointment of an examiner there won’t be an investigation, is just completely and utterly misguided.
So, for anyone to believe that they should be driven by such trash is just a big mistake. We cannot muzzle the press, but certainly, people should understand that what is being put out as if it was news is completely false and should lead them to decide that they do not want to buy or click on that publication in the future because they cannot trust it to do the basic due diligence that any reporter should do.
So, I don’t want to hear some idiot reporter or some bloggist quoted to me again in this case. And you and your client should not be guided by anything of that sort or some misguided law professor who does not take the basic due diligence that you would think he or she would want a first-year law student to do to actually look at the actual transcript and the record in the case before spouting off about the need for an examiner, including completely ignoring the appointment of a corporate monitor, the commitment as part of the injunction to have a full account, and the examinations that are going on.
[The judge briefly addressed another attorney in the case, then continued.]
That’s my anger at people just simply putting their hands over their eyes and their fingers in the ears and purporting to speak to people who have been harmed, who have had children die, and stirring them up because it’s click bait. They should understand that they should stop buying those publications and stop clicking on those sites.
As to the underlying bankruptcy case, the attorney for the unsecured creditors was unsuccessful in his attempt to inject into the hearing the theory that the process was somehow unfair — all via the New York Times opinion piece.
Posner and Brubaker, the authors of the opinion piece, declined to comment when reached by Law&Crime. A spokesperson for the New York Times has not replied to a request for comment. If a response is received, this report will be updated.
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