In Support of Neither Party: Why Both the Majority and the Dissenting Opinions in Harrington v. Purdue Pharma Fail to Deliver Justice for the Victims of the Opioid Crisis

I. Introduction

The origins of the U.S. opioid crisis can be traced to the mid-1990s, when OxyContin prompted the first wave of overdose deaths among patients prescribed opioids for pain relief.^[1] Today, the crisis is ubiquitous: Documentaries, books, and other popular media dramatically portray the tragedy.^[2] Even for Americans whose personal lives remain largely untouched by opioids, the phenomenon is impossible to avoid. The story of this epidemic continues to fascinate because it touches on deeply resonant themes—corporate greed, government regulatory failure, the exploitation of physicians and insurers, and, ultimately, the shouldering of costs largely by poor, rural Americans.^[3] In sum, the opioid crisis’s convoluted plotline is no less than a tale of public health’s failure in the United States.

Just as the crisis itself was complex and multi-pronged, proposed solutions to deliver justice to those who have been harmed by the epidemic are similarly multifaceted.^[4] One such solution exists in the creation of opioid settlement funds, which are formed from financial settlements in opioid-related suits brought by states and localities against pharmaceutical manufacturers.^[5] These funds total more than $50 billion and are distributed to the states, then allocated to local governments to help fight the crisis.^[6] Although compensating victims and families harmed by the crisis is not controversial, ongoing controversy exists in the questions of who pays, how much, and how the funds should be best used.^[7] States have wide leeway in the allocation of the settlement funds, and little transparency or oversight of the funds exists.^[8]

The opioid settlement with the most notoriety is arguably the settlement with pharmaceutical company Purdue Pharma.^[9] As the maker of OxyContin—one of the most widely used pharmaceutical opioids in the United States—Purdue is the most infamous of all the opioid manufacturers.^[10] Its owners, the Sackler family, are often blamed for the crisis, and popular media sources frequently portray them as “the most evil family in America.”^[11] In 2024, the U.S. Supreme Court blocked a proposed $5.5 to $6 billion settlement between Purdue Pharma and victims of the crisis in its 5-4 decision, Harrington v. Purdue Pharma.^[12] In its opinion, the Court considered whether the proposed settlement was an abuse of bankruptcy laws.^[13]

In the following analysis of Harrington v. Purdue Pharma, this Comment argues that the U.S. Bankruptcy Code is ultimately inadequate to recompense victims of the opioid crisis and their families. Not only does the Code fail to provide a truly just solution to the crisis, but the funds created from settlements with large pharmaceutical companies like Purdue also lack transparency and oversight. Rather than attempt to administer justice through financial penalties for Big Pharma, courts should instead prioritize more robust regulation of the pharmaceutical industry by governmental agencies like the U.S. Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA).

Ultimately, this Comment proposes that an effective solution to the crisis would take a proactive approach by better regulating the pharmaceutical industry. Evidence of corporate capture, a phenomenon in which a regulatory agency is influenced by the interests of private business, is clearly present in and at least partially responsible for the U.S. opioid epidemic.^[14] Thus, a solution to the crisis should not only offer retroactive relief in the form of cash payouts to victims and families, but it should also look forward to preventing future crises.

Part II of this Comment provides background information about the opioid epidemic and a brief history of the Purdue Pharma litigation. Part III discusses the inherent challenges in looking to the Bankruptcy Code to address the issues raised by the opioid crisis. Part IV proposes an alternative solution by identifying areas for regulatory reform. Finally, Part V provides an update from changes that occurred in 2025.

II. America’s Opioid Epidemic and the History of the Purdue Pharma Litigation

Opioids are a class of drugs that bind to opioid receptors in the brain to produce effects such as euphoria, sedation, and pain relief.^[15] Opioids include illegal street drugs like heroin, but also encompass prescription opioids like hydrocodone, oxycodone, and fentanyl.^[16] These drugs are highly addictive and can lead to opioid use disorder.^[17] The majority (approximately 75%) of people in the United States who use street opioids like heroin reported that they were first introduced to opioids in prescription form.^[18] The American Society of Addiction Medicine found that four out of five people who try heroin began with prescription opioids.^[19] The opioid crisis refers to the strategic, multi-pronged marketing of opioids by the pharmaceutical industry to create a market for their prescription drugs and reap major profits from the active addiction of millions of Americans from the late 1990s to the present day.^[20]

The opioid crisis began with the release of OxyContin by Purdue Pharma in 1996.^[21] The drug was the first formulation of a prescription opioid that offered a slow-timed release.^[22] Purdue designed OxyContin to be taken every twelve hours, which the company claimed combatted the addictive qualities of opioids.^[23] In its attempt to secure approval from the FDA, Purdue marketed OxyContin as a safer, less addictive opioid.^[24] Although Purdue did not produce adequate scientific evidence to validate its claims about the safety of OxyContin, the FDA approved the drug, as well as other novel formulations of prescription opioids.^[25] Beginning with the release of OxyContin, prescription opioid use in the United States “accelerated rapidly.”^[26]

The success of prescription opioids during this period can be traced to an evolution in how health care providers understood and treated pain.^[27] Previously, patients who complained of chronic pain were “often regarded as deluded,” or dismissed as drug-seeking by the medical establishment.^[28] However, beginning in the 1990s and early 2000s, it became more widely accepted and established among the medical profession to view pain as a legitimate medical concern in need of treatment.^[29] In part, this was due to real concern about the undertreatment of pain.^[30] However, this was also the result of a calculated scheme among pharmaceutical companies to create a market for prescription opioid drugs.^[31] Purdue Pharma was an industry leader in marketing prescription opioids to physicians.^[32] Prior to the 1990s, opioids were largely used to treat cancer, acute pain, and patients at the end of life.^[33] But Purdue Pharma saw an opportunity to market the drugs for the treatment of chronic pain and post-surgical pain management.^[34]

In addition to bolstering the idea that pain was a legitimate medical condition in need of treatment, Purdue Pharma also marketed its opioids through a campaign claiming they were less addictive than other opioids.^[35] In 1980, the New England Journal of Medicine published a now-famous letter by a physician at Boston University Medical Center stating that out of 40,000 patients treated with opioids in a Boston hospital, only four developed a substance use disorder.^[36] This letter, only one paragraph long and not approaching the rigor or peer review required by a scientific study, was cited more than 600 times, often by pharmaceutical companies to validate the claim that opioids were not addictive.^[37] Yet hospital health records were so limited in 1980 that it is likely that more active cases of addiction developed and remained undocumented.^[38] Furthermore, the study cited in the letter relied only on short-term use of opioids, not long-term outpatient use.^[39]

Likewise, Dr. Russel Portenoy, a physician compensated by the pharmaceutical industry for his work as a “thought leader,” published a paper in 1986 stating that opioids could be safely prescribed for long-term use.^[40] These papers became a source of scientific evidence that pharmaceutical companies used to convince physicians to prescribe opioids for long-term use to treat chronic pain.^[41] Pharmaceutical companies also employed ghostwriters to publish articles in medical journals advocating for the safe, long-term use of prescription opioids.^[42] The idea, proliferated by the pharmaceutical companies themselves, that opioids were safer and less addictive than previously believed, had spread among health care professionals by 1990.^[43] Pharmaceutical companies also created pain advocacy groups for patients and medical professionals that promoted prescription opioids.^[44] Furthermore, companies like Purdue Pharma hired impressive teams of prescription opioid sales representatives who marketed prescription opioids directly to physicians.^[45] As a result, the volume of opioids that physicians prescribed increased by more than 400% from 1999 to 2010, according to some estimates.^[46]

From 1999 to 2017, the number of annual deaths involving prescription opioids in the United States rose from 3,442 in 1999 to 17,029 in 2017.^[47] Overall, it is estimated that 806,000 Americans have died from opioid overdose between the 1990s and 2023.^[48] Approximately 247,000 of those deaths were from prescription opioid use,^[49] and deaths from street drugs like heroin often originated with prescription use.^[50] The crisis disproportionately affected low-income individuals and those living in rural areas.^[51] According to a 2018 research brief from the U.S. Department of Health and Human Services, “In 2016, retail opioid sales per capita were around 50 percent higher in rural areas than in small or large metropolitan counties.”^[52] Purdue Pharma earned about $34 billion in revenue between 1996 and 2019,^[53] and the Sackler family paid themselves a total of $11 billion in dividends from Purdue Pharma between 2008 and 2016.^[54]

As information about the pharmaceutical industry’s creation of the opioid crisis became public, U.S. states, cities, and counties took legal action by filing mass tort claims against the companies themselves as well as against the pharmacies and distributors that contributed to the proliferation of prescription opioids.^[55] In 2021, nationwide settlements were reached to resolve opioid litigation brought by states against pharmaceutical distributors McKesson, Cardinal Health, and AmerisourceBergen, as well as major manufacturers Janssen Pharmaceuticals and its parent company Johnson & Johnson.^[56] As a result of these settlements, the distributors are scheduled to pay up to $21 billion over eighteen years, and Johnson & Johnson will pay an additional $5 billion over no more than nine years.^[57] Settlements have also been reached with pharmacy chains CVS, Walgreens, and Walmart.^[58] In sum, the amount of money created by these settlement funds totals more than $50 billion.^[59]

The funds will be paid out to states to “repair social systems debilitated by opioid addiction.”^[60] However, only sixteen states have committed to publicly reporting how these funds are spent.^[61] From the data that is publicly available, funds have been invested in building or expanding existing residential rehab facilities.^[62] Other states are using the funds to purchase tools to “crack down on drug trafficking.”^[63] For example, Green County in Tennessee, a rural area with high rates of drug overdose deaths, used settlement fund money to improve jails, fund the sheriff’s office, and pay off local debt—arguing that opioid-related crimes damaged the county’s justice system and plunged it into debt.^[64] In contrast, in Denver, the funds from the settlements are being used to distribute free naloxone, a medication that reverses the effects of opioid overdose, to communities with high opioid use rates.^[65] Some states haven’t spent the money at all, and instead are mired in the bureaucratic process of identifying priorities and developing workflows to award grants.^[66]

A. History of the Purdue Pharma Settlement Plan Litigation

1. Bankruptcy Court Rules in Favor of the Plan

The largest settlement plan from a single company was Purdue Pharma’s proposed $7+ billion plan.^[67] Claimants in the mass of civil claims against Purdue spanned the United States and Canada and included U.S. states, individual victims of opioid addiction, and the families of those suffering from a substance use disorder.^[68] In 2019, Purdue Pharma and twenty-three affiliated debtors filed for Chapter 11 Bankruptcy in the Southern District of New York.^[69] Notably, Purdue’s proposed bankruptcy plan included a $4 billion contribution from the Sackler family’s personal holdings.^[70] In exchange, the Sacklers required that all civil claims and future civil claims against them be released.^[71] As part of this plan, Purdue would declare bankruptcy, but the Sackler family would not.^[72] The Sackler discharge encompassed not only current claims against the Sacklers but future claims as well,^[73] and it would prevent future lawsuits against “hundreds, if not thousands, of Sackler family members and entities under their control.”^[74] In addition, Purdue proposed to reorganize as “a ‘public benefit’ company dedicated primarily to opioid education and abatement efforts.”^[75] With assistance from the Sacklers’ financial contributions to the plan, Purdue would pay individual victims harmed by its pharmaceutical products anywhere between a base amount of $3,500 to a ceiling of $48,000 in the most extreme cases.^[76] Payments would be spread out over as many as ten years.^[77]

Claimants opposed to the plan included eight U.S. states, the District of Columbia, the city of Seattle, several Canadian municipalities and indigenous nations, the U.S. Trustee, and individual pro se plaintiffs.^[78] The bankruptcy plan was overwhelmingly supported^[79] by claimants who voted on it (about 20% of eligible creditors participated in the vote).^[80]

The Bankruptcy Court confirmed the plan, but limited the release of claims against the Sacklers to claims “for which Purdue’s conduct was a legal cause, or a legally relevant factor, of any released cause of action against the Sacklers.”^[81] However, the Southern District Court of New York vacated the order, ruling that the Bankruptcy Code did not permit nondebtor, third-party releases (here, the Sackler family) in the case of nonconsensual claimants (here, the eight U.S. states, District of Columbia, Canadian claimants, pro se individuals, and the U.S. Trustee).^[82]

2. Second Circuit Court of Appeals Affirms

In August of 2021, the case was appealed to the Second Circuit Court of Appeals.^[83] After a series of negotiations, the Sacklers increased their contribution to $6 billion.^[84] This increase was enough to cause the objecting U.S. states and the District of Columbia to agree to the plan, although the Canadian creditors, the pro se individuals, and the U.S. Trustee continued to object.^[85] The Court of Appeals reversed the district court, holding that (1) the U.S. Bankruptcy Code does permit nonconsensual, third-party releases of direct claims against nondebtors, and (2) such a release was proper in light of the “equitable considerations and the facts of this case.”^[86]

The Second Circuit concluded that two sections of the Bankruptcy Code, 11 U.S.C. §§ 105(a) and 1123(b)(6), jointly “provide the statutory basis for the bankruptcy court’s authority to approve a plan that includes nonconsensual releases of third-party claims against non-debtors.”^[87] The court pointed to precedential rulings, stating that such releases were not only permitted statutorily but also under case law.^[88] The Second Circuit affirmed the bankruptcy court’s approval of the reorganization plan and remanded the case to the district court for proceedings consistent with its opinion.^[89] Thus, although the Sacklers themselves had not declared bankruptcy (i.e., they were nondebtors), the circuit court held that U.S. bankruptcy law allows legal protections for nonbankrupt parties in extraordinary circumstances.^[90]

3. Appeal to U.S. Supreme Court

The U.S. Trustee, tasked with promoting the integrity of the bankruptcy system, appealed the Second Circuit’s decision to the U.S. Supreme Court.^[91] While the Supreme Court considered the issue, it granted a stay on the implementation of Purdue’s proposed payment plan.^[92] In June of 2024, the Supreme Court issued a decision on the case in an opinion titled Harrington v. Purdue Pharma.^[93] The Supreme Court agreed with the district court, reversing the Second Circuit’s ruling in a 5-4 decision and challenging the settlement as an abuse of U.S. bankruptcy laws that were never meant to protect nondebtors without the consent of all affected parties.^[94] In its opinion, the Court wrote that the Sacklers sought a release from all future litigation even though they had not placed “anything approaching their full assets on the table” for distribution to creditors.^[95] “[T]hey seek what essentially amounts to a discharge,” and “they seek all this without the consent of those affected,” states the majority opinion.^[96]

The dissent, authored by Justice Kavanaugh, argued that the Sacklers weren’t truly nondebtors.^[97] The dissent asserted that when officers and directors are indemnified by the company, the victims’ and creditors’ claims against the officers are essentially a suit against the debtor.^[98] In other words, because Purdue is on the hook for creditors’ claims against its officers and directors, a suit against Purdue and a suit against a Sackler officer or director are materially identical.^[99] Kavanaugh went on to list examples of previous mass tort cases where nondebtor releases have enabled “substantial and equitable relief to victims.”^[100] The dissent cited several examples, including asbestos cases in the 1990s, as well as cases against the Boy Scouts of America and several dioceses of the Catholic Church.^[101] The dissent pointed to the unique ability of the Bankruptcy Code to pool financial resources into one substantial settlement fund to ensure equitable relief for victims and prevent “one victim or group of victims from obtaining all of the insurance funds before other victims recovered.”^[102]

In the majority opinion, the Court emphasized that its ruling was very narrow, holding that it only applied to nonconsensual third-party releases.^[103] In other words, if the remaining claimants consented to Purdue’s bankruptcy plan, the court would likely approve the plan in the case of a consensual nondebtor release.^[104] Currently, claimants can still use class action lawsuits and multi-district litigation as tools to seek recovery from Purdue Pharma.^[105] However, these procedures force victims to compete with one another in order to receive a larger share of the recovery.^[106] This competition can cause litigation to drag on for many years with little hope of recovery.^[107] Bankruptcy law provides an equitable solution for mass tort victims by pooling resources into a common fund and ensuring that all claimants get a portion of that fund.^[108] When a nondebtor third-party is “potentially liable for the company’s wrongdoing” and holds “valuable assets,” Kavanaugh argues that the nondebtor’s participation in the settlement plan benefits victims by “enlarging the pie of recoverable funds.”^[109] By proposing to contribute more than 80% of the financial assets that comprised the settlement plan, the Sacklers substantially enlarged this pool for victims of the crisis.^[110]

As evident from the 5-4 holding, the Purdue case was challenging, with compelling arguments on both sides.^[111] The following Part of this Comment discusses both the majority opinion and the dissent in greater detail and outlines the various legal options currently available to claimants against Purdue Pharma.

III. Why the Bankruptcy Code Is Inadequate to Solve the Problem

In Harrington v. Purdue Pharma, the U.S. Supreme Court’s debate centered on two provisions of the Bankruptcy Code: § 524(e) and § 1123(b)(6).^[112] Section 524(e) states that a bankruptcy discharge “does not affect the liability of any other entity.”^[113] Applied to the facts of Purdue’s case, this was interpreted by the majority to mean that Purdue’s declaration of bankruptcy could not extend protections to the Sackler family.^[114] In contrast, § 1123(b)(6) of the Bankruptcy Code allows a plan of reorganization to “include any other appropriate provision not inconsistent with the applicable provisions of this title.”^[115] The dissent interpreted this provision to include nonconsensual third-party debtor releases, such as the release requested by the Sackler family.^[116] The majority disagreed, claiming that this language in the Code is limited and governed by § 524(e), which clearly states that a discharge does not affect the liability of third parties.^[117]

Yet both the majority opinion and the dissenting opinion, while making strong arguments for their respective viewpoints, fail to deliver lasting justice for the victims of the opioid crisis. In fact, attempting to deliver justice through the U.S. Bankruptcy Code is short-sighted and amounts to treating the symptoms of the problem, rather than the underlying source.

A. The Majority’s Policy-Driven Perspective

The majority opinion provides a helpful primer on bankruptcy law.^[118] When a debtor files for bankruptcy, an estate is created, comprised of all the debtor’s assets.^[119] Chapter 11 of the U.S. Bankruptcy Code allows the debtor to develop a reorganization plan, with the input of creditors, that stipulates how the estate’s assets will be distributed.^[120] The bankruptcy court must approve this plan.^[121] Once approval is received, the plan binds debtors and creditors moving forward.^[122] The plan “discharges the debtor from any debt that arose before the date of such confirmation,” and this discharge “operat[es] as an injunction . . . prohibit[ing] creditors from attempting to collect or to recover the debt.”^[123] But, according to § 542(e) of the Code, “a discharge operates only for the benefit of the debtor against its creditors and ‘does not affect the liability of any other entity.’”^[124]

The majority turned to § 1123 of the Bankruptcy Code to determine if a discharge could ever be extended to nondebtors.^[125] This section of the Code states that a bankruptcy plan may, in subsection (6), “include any other appropriate provision not inconsistent with the applicable provisions of this title.”^[126] The majority stated that the Sacklers would have the court believe that subsection (6) allows a debtor “to include in its plan, and a court to order, any term not ‘expressly forbid[den]’ by the [B]ankruptcy [C]ode.”^[127] Thus, according to the Sacklers, because a nonconsensual third-party discharge is not expressly forbidden by the Bankruptcy Code, the court is free to authorize it.^[128] To refute this, the Court relied on the rule of interpretation called ejusdem generis, which states that words or phrases must be interpreted considering the context surrounding them.^[129] Specifically, this canon of construction holds that a general, catchall term in a list must be read in the context of the more specific terms in that list and is assumed to be “of the same kind” as the items that precede it.^[130] Because subsections (1)–(5) of § 1123(b) are specific provisions concerning the debtor’s rights and responsibilities, the majority held that to interpret subsection (6) to apply to third-party nondebtors would be “radically different” from the intent of the preceding paragraphs.^[131] Thus, the majority took a rather limited view of the meaning of subsection (6): Rather than granting a bankruptcy court limitless powers to “extinguish without their consent claims held by nondebtors (here, the opioid victims) against other nondebtors (here, the Sacklers),” the allowance for “appropriate provision[s]” extends to debtors alone.^[132] The extension of this provision to nondebtors would violate the intent of the Code.^[133] At the heart of the majority’s viewpoint is a policy argument positing that using the Bankruptcy Code to extend the release of liability to third-party nondebtors without the consent of all claimants is the sign of a broken system.^[134]

B. The Dissent’s Functionalist Approach

The dissent, on the other hand, argued that “the Bankruptcy Code vests bankruptcy courts with broad discretion to approve ‘appropriate’ plan provisions.”^[135] Justice Kavanaugh, writing for the dissent, characterized the plan’s appropriateness: The Sackler’s contribution of $6 billion built up Purdue Pharma’s bankruptcy estate to more than $7 billion, thereby guaranteeing “substantial and equitable compensation to Purdue’s many victims and creditors”; and the plan also provided funding to state and local governments for the prevention and treatment of opioid addiction.^[136]

To support his argument, Justice Kavanaugh relies on precedential bankruptcy cases that “determined that non-debtor releases can be appropriate and essential in mass-tort cases like this one.”^[137] These include suits brought by victims of asbestos against Johns Manville Corporation and those brought by victims of childhood sexual assault against Boy Scouts of America and the Catholic Church.^[138] The asbestos cases serve as a helpful comparison point to understand how the Purdue Pharma bankruptcy plan expands precedential applications of the Bankruptcy Code.

Johns Manville Corporation tested the limits of the Bankruptcy Code when it filed for bankruptcy in 1982 as a solvent company.^[139] Like Purdue, Manville declared bankruptcy not because it was financially insolvent but because it sought to limit its present and future liability for personal injury and wrongful death claims.^[140] The Fortune 500 Company and asbestos manufacturer claimed that it would not be able to manage the current and future lawsuits pending against it from victims of asbestos poisoning, and it used this argument as a basis for filing for Chapter 11 bankruptcy.^[141] Furthermore, Manville’s insurers also contested their own responsibility to pay these claims.^[142] As a result, Manville’s Chapter 11 plan, which released all present and future claims against itself and its insurers, was approved.^[143] According to bankruptcy scholar Melissa Jacoby, “Manville tested the boundaries of the law in two big ways: a solvent company using bankruptcy for tort liability management, and altering the legal rights of people who could not participate in the bankruptcy case because they are not yet aware that asbestos harmed them.”^[144] Justice Kavanaugh and other proponents of the Purdue Plan cite similarities to the Manville case: Manville’s bankruptcy plan, like Purdue’s proposed plan, shielded a nondebtor third party, the insurance company, from mass tort claims.^[145] Yet, Manville differed from the Purdue case in a significant way: In Manville, “insurance companies were not accused of independent wrongdoing.”^[146] In contrast, the “Purdue Pharma bankruptcy sought to shield the Sacklers from allegations of their own independent wrongdoing related to Purdue Pharma opioids.”^[147] A valid argument exists that an insurance company should not be forced to pay damages to thousands of victims who suffered from Manville’s own “failure to warn people of the dangers of asbestos.”^[148] Yet, it is an entirely different argument to claim that the Sackler family, the masterminds and puppeteers of the U.S. opioid crisis, should be able to use this precedential case to release all pending and future claims against them.^[149]

Notwithstanding this distinction, Justice Kavanaugh’s dissent is a functionalist approach to the law: It weighed the consequences of the Purdue plan and concluded that the ends justified the means.^[150] Without such a plan, individual “[f]amilies crushed by opioid addiction” would struggle to successfully bring a lawsuit against the Sacklers.^[151] Furthermore, even if a family did win a lawsuit, enforcing it would likely prove difficult: The Sacklers “set up asset-protection trusts in places like the Bailiwick of Jersey in the Channel Islands.”^[152] The Purdue bankruptcy plan guaranteed payouts to individual victims harmed by OxyContin and other Purdue drugs.^[153] As Melissa Jacoby writes, “Given these circumstances, some people believe that extracting a promise from the Sacklers to pay several billion dollars in addition to nonfinancial concessions isn’t a loophole for the rich; it is, instead, a miracle.”^[154] They may very well be right.

C. Why Both the Majority and the Dissent Fail to Deliver Justice for Opioid Victims

Contrast Justice Kavanaugh’s functionalist, pragmatic approach with the majority’s values-driven interpretation of the Bankruptcy Code. The majority refused to extend the release of liability without the consent of all claimants, even though comparatively, those in opposition to the plan were a much smaller percentage than those in favor.^[155] Section 524(e) states that the Code cannot be used to extinguish the rights of victims, as creditors, seeking compensation from people like the Sacklers, as nondebtors.^[156] The Court referenced the “[t]housands of opioid victims” who voted against the plan, who wrote, “[o]ur system of justice . . . demands that the allegations against the Sackler family be fully and fairly litigated in a public and open trial, that they be judged by an impartial jury, and that they be held accountable.”^[157] Although some claimants may decide that releasing their claims against the Sacklers in return for the settlement money is right for them, should the consenting claimants get to decide for those who haven’t consented to the settlement plan?^[158] For example, Ed Bisch, the father of an eighteen-year-old who died from an opioid overdose, considers the Purdue Pharma bankruptcy as a “sweetheart deal for the Sacklers” and remains opposed to it.^[159]

Nonconsenting claimants argued that Purdue’s proposed settlement violated their due process rights by depriving them of a constitutionally protected property interest: their causes of action against the Sacklers.^[160] The majority opinion agreed that “nothing in [the] present [Code] authorize[d] the Sackler discharge,” and that if Congress intends for the Bankruptcy Code to be interpreted to authorize it, then it “may . . . add to the bankruptcy code special rules for opioid-related bankruptcies as it has for asbestos-related cases.”^[161] To rule in favor of the Sackler discharge would create a route for “wealthy individuals to misuse the bankruptcy system . . . to avoid mass-tort liability.”^[162] The dispute can also be framed as a separation of powers argument. As Jacoby questions, “State law is the source of many allegations of Sackler wrongdoing. Should federal bankruptcy law have the capacity to terminate your legal rights against Richard Sackler when neither of you is bankrupt?”^[163] On the other hand, those in favor of using bankruptcy law to settle the opioid claims argue that it is more efficient and equitable than using “[c]ase-by-case mass tort litigation of the type the Defendant Debtors currently face in the civil tort system.”^[164]

Yet, justice for opioid victims requires a solution more meaningful than the efficient redistribution of a portion of the Sacklers’ assets.^[165] Justice contains within it the aspirational goal of moral correctness and fairness.^[166] Releasing all current and future claims against the Sacklers while allowing them to maintain a substantial portion of their financial assets does not seem to approach justice. The majority’s ruling completely sacrifices certain financial compensation for victims in order to preserve the integrity of the Bankruptcy Code.^[167] This also seems unjust, especially for those victims who did support the settlement.^[168] Because neither the majority nor the dissenting opinion fully and adequately deliver justice for victims of the opioid crisis, this Comment argues for an alternative solution. Although mass tort claims and the Bankruptcy Code may be one tool in the justice system’s toolbox, on a systemic level they function more like a band-aid for the harms caused by the crisis.^[169] A more just solution would deliver lasting, preventive change. In the next Part, this Comment suggests a holistic approach to address the harm caused by the opioid crisis.

IV. Increased Regulatory Oversight: A Preventative Approach

Undoubtedly, regulators failed to protect the public from the harms caused by opioids.^[170] Regulatory capture describes a situation by which “a regulatory agency that is created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate an industry or sector the agency is charged with regulating.”^[171] Without implementing regulatory changes to reduce or eliminate regulatory capture by powerful pharmaceutical companies, public health in the U.S. will continue to be at risk for ongoing exploitation by large drug companies.^[172] Thus, rather than focus on administering justice solely through financial recourse for victims of the crisis, a holistic solution would place equal focus on better regulation of Big Pharma.

The industry’s excessive influence on the U.S. health care system effectively shifts the focus from public health to profit, motivating regulatory capture by pharmaceutical companies.^[173] In the case of the opioid crisis, this is evidenced by the multiple federal agencies that failed to identify the risks posed by opioids or the ongoing harms created once they entered the marketplace.^[174] For example, the U.S. Department of Health and Human Services created Clinical Practice Guidelines on pain management that stated opioids were an “essential part of pain management.”^[175] This claim stemmed from Purdue Pharma’s excessive marketing of opioids and unethical claims about their lack of addictiveness.^[176] These guidelines were an essential part of pharmaceutical companies’ campaign to convince physicians they could not adequately treat pain without prescribing opioids for long-term use.^[177]

In addition, the FDA failed to obtain evidence of opioid safety and effectiveness, but in 1995 it approved OxyContin anyway—in violation of the Food, Drug, and Cosmetic Act.^[178] The Act requires “‘adequate and well-controlled studies’ before products can be approved and promoted as safe and effective.”^[179] OxyContin was approved based on only one well-controlled study, whereas “[t]he FDA generally requires at least [two] randomized controlled trials.”^[180] Furthermore, the FDA did not properly label OxyContin: The drug’s label should have “had a narrow indication for the specific conditions for which the benefits of ER oxycodone outweigh the risks, such as relief from severe pain from a life-limiting illness.”^[181] Instead, the broad label the drug was actually given allowed it to be prescribed for common chronic pain conditions despite the high risk for addiction, respiratory depression, and other medical problems.^[182]

Regulatory failures continued to abound, even after the opioid crisis was widely understood as an ongoing phenomenon.^[183] The DEA often failed to investigate and punish pharmaceutical companies due to political tensions between “drug investigators, who ha[d] taken an aggressive approach to a prescription opioid epidemic . . . and the government attorneys who handle those cases at the DEA and the Justice Department.”^[184] For example, consider the case of McKesson, a drug distribution company “at the [h]eart of the [o]pioid [c]risis.”^[185] A DEA field team wanted to fine the company more than $1 billion, revoke its registration to distribute controlled substances, and bring a criminal case against the company.^[186] But “top attorneys at the DEA and the Justice Department struck a deal . . . with the corporation and its powerful lawyers,” that was much more lenient: no criminal charges and only a $150 million fine.^[187] Author Liza Vertinsky describes these payments as no more of a deterrent than “parking tickets.”^[188]

In their article, The Cost of Capture, Julie Margetta Morgan and Devin Duffy outline four methods by which the pharmaceutical industry captures political power: lobbying and campaign contributions, the revolving door between government and industry, spending on medical research, and funding independent organizations.^[189] Significant reforms in these areas are needed to prevent future public health crises.

A. Lobbying, Campaign Contributions, and the Revolving Door Between Industry and Government

In 2017, pharmaceutical lobbying “outpaced all oil and gas, Wall Street, telecommunications, and defense organizations.”^[190] A 2011 study reported that firms that lobby were “38% less likely to be detected for fraud by” regulatory agencies compared with firms that did not lobby and managed to evade fraud detection by regulators for an average of “117 days longer.”^[191] Lobbying is closely related to the revolving door between industry and regulatory agencies.^[192] Between 2004 and 2020, 32% of employees departing from the U.S. Department of Health and Human Services exited to the pharmaceutical industry, according to Genevieve Kanter and Daniel Carpenter in Health Affairs.^[193] The New York Times reported in 2017 that many public servants “depend on . . . lobby shops . . . for the high-six-figure salaries” once they leave their political posts.^[194] Lobbying isn’t the only industry providing a home for former regulators: Agency officials charged with overseeing opioid approvals have since departed the FDA to take industry jobs working for opioid makers, including Purdue.^[195] The revolving door between regulatory agencies and the pharmaceutical industry creates incentives for agents to prioritize the desires of private industry at the expense of public health.^[196]

Laws exist that curtail the revolving door between industry and government, but they are narrowly written.^[197] The focus is “primarily on the former employee’s activities as a representative of private parties vis-à-vis the government.”^[198] And even this prohibition against lobbying for former officials has been loosely enforced: Such legislation has been interpreted as allowing a former official to work as a “consultant” for a lobbying group, as long as they are not formally a lobbyist themselves.^[199] More robust legislation is required to adequately tackle the harm caused by lobbying and the revolving door between industry and government. At the same time, it is hard to imagine that legislators would draft and approve legislation that directly limits their own potential financial payout.

B. Clinical Trial Funding

The pharmaceutical industry often funds clinical trials that test new drugs.^[200] According to Morgan and Duffy, “industry-funded research can skew results in ways that are misleading, deceptive, or otherwise harmful to patients.”^[201] For example, a 2008 study found that pharmaceutical companies are “more likely to suppress trials finding negative results, a practice known as publication bias, which can have a direct impact on health outcomes.”^[202] Furthermore, the medical journals that publish research may also be funded by pharmaceutical companies.^[203] Liu et al. found that the average editor compensated by industry for research received $37,963 in the form of consulting fees, royalties, or travel expenses.^[204] As a result of the pharmaceutical industry’s financing of clinical trials and its influence on their subsequent publication, physicians may prescribe drugs without fully comprehending their effects because some of those effects have been suppressed.^[205] Although the Food and Drug Administration Amendments Act of 2007 required private firms to disclose information about clinical trials on the government website ClinicalTrials.gov or risk monetary sanctions, a study found that “[n]o fines or sanctions were levied in the seven years after disclosure became mandatory, and the guidelines on when and how to disclose remained hazy.”^[206] An easy fix for this would be to simply enforce these sanctions against pharmaceutical companies that attempt to suppress clinical trial results. Furthermore, fines could be levied against medical journals that fail to disclose the financial benefits they receive for publishing research, or limits could be put in place to restrict the amount of money pharmaceutical companies can contribute to medical journals.

C. Industry-Funded Groups

Finally, pharmaceutical companies frequently fund independent organizations like think tanks that then publish papers and other research that federal agencies rely upon when approving a drug or treatment.^[207] Industry-funded groups often take positions favorable to the sponsor, according to a 2020 study.^[208] Industry also funds patient advocacy groups that advocate through political organizations on behalf of “a particular disease or disability.”^[209] The Roosevelt Institute reported “that 14 pharmaceutical companies contributed (at least) $116 million to patient advocacy groups in 2015.”^[210] Agency officials and policymakers may be unaware of the extent to which these groups are funded by the pharmaceutical industry; thus, increased transparency for patient advocacy groups’ funding sources is needed.^[211]

In a post-Chevron world, it may seem futile to argue for increased regulatory oversight.^[212] If new, more stringent regulations are issued, an uptick in legal challenges against these regulations will likely result.^[213] Yet, it is clear that the failure of regulatory agencies was a significant contributor to the public health crisis created by opioids.^[214] The crisis teaches us that regulatory agencies have not been trustworthy advocates for patients, and their flaccid attempts to regulate the pharmaceutical industry were ultimately ineffective in halting Big Pharma’s capture.^[215] Post-Chevron, Congress and the courts must work alongside regulatory agencies in a coordinated effort to regulate the pharmaceutical industry through overturning ineffective agency action and writing specific legislation that targets pharmaceutical company regulatory capture. This promises to create a more comprehensive solution to future public health crises than relying on the Bankruptcy Code’s retroactive approach to justice.

V. 2025 Update

In November of 2025, the U.S. Bankruptcy Court for the Southern District of New York approved a $7.4 billion settlement between Purdue Pharma, individual victims of the opioid crisis, and state and local governments.^[216] The most significant change between this plan and the 2024 plan rejected by the U.S. Supreme Court is that under the newly approved 2025 settlement, lawsuits against the Sacklers can be brought by parties that opt out of the deal.^[217] However, because the majority of the Sackler family’s assets are held in trusts in offshore accounts, individuals who opt out will likely struggle to access them through lawsuits.^[218] Most of the funds will be distributed to state and local governments to address the opioid crisis, while $850 million will be distributed to individual victims of the crisis.^[219] On average, individuals and families harmed by opioids will receive between $8,000 to $16,000 from the plan, although it could be less.^[220] Some victims view these payouts as inadequate to compensate them for the harm caused by OxyContin.^[221] As part of the settlement, Purdue will change its name to Knoa Pharma and become a purpose-driven organization “[d]edicated to the public good.”^[222]

As discussed, the challenges inherent in distributing the opioid settlement funds to state and local governments abound. Governments “are not restricted in how they spend these . . . funds, nor does state law require them to report how the funds are distributed.”^[223] To bridge this gap, public health organizations have investigated public records and compiled and published data on state spending.^[224] For example, the Baker Institute at Rice University reported that in Texas, 30% of the opioid settlement funds remain uncommitted, and local government spending varies significantly.^[225] In Montgomery County, nearly all the funds received were devoted to technology to assist police and law enforcement to identify drug activity.^[226] In contrast, Bexar County used funding to cover prevention, treatment, recovery, harm reduction, and specialty drug courts.^[227] In fiscal year 2023–24, Harris County reported “no active budget for allocation of settlement funds.”^[228] It is imperative that states responsibly and meaningfully spend their distributions from settlements like the Purdue Pharma settlement fund. Yet with no laws or restrictions in place, it is difficult to incentivize such spending.

VI. Conclusion

In Harrington v. Purdue Pharma, the dissent and majority opinions both raise strong arguments for and against a $6 billion settlement between the Sackler family and the victims of the opioid crisis.^[229] Financial recompense in the form of payouts from mass tort claims is an important tool in the American justice system.^[230] In some circumstances, the Bankruptcy Code may allow for the equitable and efficient distribution of these payouts, as the court held in the 1986 Manville case and in the 2025 settlement with Purdue.^[231]

Yet in the instance of the Purdue Pharma bankruptcy plans, both the rejected 2024 plan and the approved 2025 plan, it is difficult to argue that these payouts provide a just solution to the crisis. Individual payouts are small, and, for creditors who did not agree to be bound by the plan, they may never materialize.^[232] States and local governments have wide leeway to spend the funds as they wish and with little oversight.^[233] Thus, a satisfying solution to the crisis will not be found in payouts from the wealthy individuals who created it. Rather, courts and lawmakers must look at reforming the health care regulatory landscape to ensure that pharmaceutical companies cannot create another public health crisis in the future. This is not to say that compensating victims and families who have suffered from opioid addiction is inappropriate—quite the opposite. However, payouts from opioid funds look backward by attempting to provide some relief for a problem that already exists. A true solution would look forward and attempt to ensure another opioid crisis never again occurs. To do this, we must fundamentally change the way that regulators interact with the pharmaceutical industry. Public health, despite enjoying broad bipartisan support, has always been a political issue.^[234] Those of us who want to influence or change health care policies are faced with the necessity of taking political action to do so: supporting legislation that reforms the regulatory landscape, voting in local and national elections, and advocating for policies that promote regulation of pharmaceutical companies. If U.S. citizens do not demand their political system act on behalf of patients and public health, who else will?

Catherine Cleary