Pedophiles for Purdue Pharma
Tonight (Dec 5), I’m at Flyleaf Books in Chapel Hill, NC, with my new solarpunk novel The Lost Cause, which 350.org’s Bill McKibben called “The first great YIMBY novel: perceptive, scientifically sound, and extraordinarily hopeful.”
It’s not merely that the Sacklers — a multigenerational, ultra-wealthy drug-pusher dynasty — made billions while murdering hundreds of thousands of Americans by lying about the safety of Oxycontin, the flagship product of their Purdue Pharma drug company. It’s that they got away with it.
After a decade-long crime spree in which the family used a combination of elite philanthropy and vicious legal threats against critics (including me!) to maintain a squeaky-clean image, the Sackler name is finally a synonym for mass murder, and will forever be a curse. But though they lost their name, they kept their billions.
In so doing, the Sacklers exposed the rot at the heart of American bankruptcy, bringing an obscure, deeply corrupt system into the public eye.
Bankruptcy has always been with us. As Michael Hudson reminds us, “Debts that can’t be paid, won’t be paid.” Without some system for discharging debt, control over the entire productive capacity of a society is eventually shifted to a hereditary creditor class, which precipitates calamity:
But America has a bifurcated bankruptcy system. For normal people, bankruptcy is more punishment than relief. For the ultra-wealthy, bankruptcy is a system of total impunity for ghastly crimes. Simply undertake those crimes through the “personage” of an LLC and you’re on easy street:
(This is America, so of course there’s a racial dimension to punishment-by-bankruptcy. Broke white people are funneled into quick means of discharging debts while people of color are pushed into “expensive and lengthy repayment plans”)
Anything that can’t go on forever eventually stops. At a certain point, it wasn’t possible for the Sacklers to maintain their cuddly billionaire charade. It was time to shut down the Big Store con, cool the mark, and blow town. For the Sacklers, that meant going to court.
The Sacklers were facing hundreds of billions of dollars in personal liability for their individual and collective corrupt acts. They were being sued by estates, by survivors, by cities, by states, and by the USA itself. If even a fraction of these claims succeeded, the Sacklers would be wiped out. To get away clean, the Sacklers needed a plan.
Enter the “Third-Party Nonconsensual Release,” a bizarre and wildly corrupt feature of elite bankruptcy. The Sacklers offered the court a deal: they would take the family business, Purdue Pharma, into bankruptcy, and kick in a few billion out of their collective hoard. In return, the court would settle all claims against both Purdue and the family. The family would not have to go bankrupt. They could keep their billions. And no one would be allowed to sue them for their opioid killing-spree, ever:
You can’t make this argument in front of just any judge. It takes a Very Special judge, with a Very Special brain, to grant a proposal like this. There were just three courts in the USA where the Sacklers were likely to find a willing accomplice: two in Texas, one in New York. They chose the Empire State.
To get their case in front of Judge Robert Drain, the Sacklers opened a tiny, empty office in White Plains, New York. They waited 190 days (satisfying the six-month residency requirement with a few days to spare), and then filed in the Southern District of New York. They hid invisible metadata in the PDF of their filing, which tricked the Case Management/Electronic Case Files system into putting their case in front of Drain. They even pre-captioned their brief with “RDD” for Robert D Drain:
The Sacklers’ plan worked. Judge Drain nonconsensually settled all the third-party claims against the Sacklers, without requiring the Sacklers to give up the majority of their fortunes. Then, Drain resigned from the bench and took a cushy job with the BigLaw corporate crime enablers at Skadden, Arps, Slate, Meagher & Flom:
But the story doesn’t end here. While this kind of bankruptcy judge shopping and third-party nonconsensual releases had been SOP for some of the most vicious and unrepentant institutional criminals of the century, the Sacklers’ impunity was so egregious, so revolting, that the Supreme Court (yes, this Supreme Court!) agreed to hear a case challenging its constitutionalilty:
As the hearing looms, various “friends of the court” are filing amicus briefs, trying to ensure that the Supremes understand what’s at stake here. This is a normal part of any Supreme Court case, but what’s less normal is who these amici are, and what they want the court to understand.
Writing for the New York Times, Abbie Van Sickle rounds up an eye-popping summary of these amici and their concerns. Tldr? There are a lot of pedophiles who are briefing for the Sacklers:
First on deck is the US Conference of Catholic Bishops, who remind the court that nonconsensual third-party releases were essential to the Catholic Church’s ability to walk away from the untold number of children abused by the clergy who where protected by the Church:
Next up are the Boy Scouts of America. Like the Bishops, the Scouts want the Court to remember that the decades of sexual abuse committed by scoutmasters who were protected by the BSA while their victims were marginalized and silenced would have destroyed the Scouts if the victims had been able to get justice. It was only through the magic of the Third-Party Nonconsensual Release that the BSA was able to live on, even after decades of unspeakable crimes.
However the case pans out, there is change in the air. Johnson & Johnson’s bid to escape liability for the years it spent knowingly telling women to dust their vulvas with asbestos failed (thank goodness):
Bankruptcy scholars are taking aim at the obviously corrupt practice of bankruptcy shopping:
And the judges who specialize in these Third-Party Nonconsensual Releases are dropping like flies. Not long after Judge Drain went through the revolving door at a BigLaw firm, (ex-)Judge David Jones was forced to resign when it emerged that he was romantically involved with a lawyer who kept winning huge windfalls for her clients in his court:
There’s never just one ant. The kinds of judges, lawyers, law firms and corporations who use the bankruptcy system this way are bound to be corrupt in many, many other ways as well. Rooting out elite bankruptcy fraud doesn’t have to stop in bankruptcy court. Anyone arrogant and immoral enough to pull these scams will have plenty of other skeletons in their closets.
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