Amicus Curiae Brief — William K. Harrington, United States Trustee, Region 2, Petitioner v. Purdue Pharma L.P., et al.

No. 23-124

In The

WILLIAM K. HARRINGTON, UNITED STATES TRUSTEE,

REGION 2,

Petitioner,

v.

PURDUE PHARMA L.P., ET AL.

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF CHERYL JUAIRE, TIFFINEE

SCOTT, DEDE YODER, KATHLEEN

SCARPONE, STEPHANIE LUBINSKI, LYNN

WENCUS, GARY CARTER, WENDY

PETROWSKY, KARA TRAINOR, KATHLEEN

STRAIN, LINDSEY ARRINGTON, SHANNIE

JENKINS, KERRI MORALES, C.R. FOSTER,

AND ROBERT PROCHNO AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Avery Holloman

HOLLAND & KNIGHT

100 North Tampa Street

Suite 4100

Tampa, FL 33602

(813) 227-8500

Jamie Billotte Moses

Counsel of Record

HOLLAND & KNIGHT

200 South Orange Avenue,

Suite 2600

Orlando, FL 32801

(407) 244-5103

jamie.moses@hklaw.com

Counsel for Amici Curiae

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ........................................ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION & SUMMARY OF THE

ARGUMENT .......................................................... 2

ARGUMENT ................................................................ 3

I. INDIVIDUAL

VICTIMS’

INTERESTS

SHOULD BE TAKEN INTO ACCOUNT IN

ASSESSING THE PROPRIETY OF THE

CHALLENGED RELEASES. ................................ 3

II. REAL-WORLD

STORIES

SHOW

WHY

VICTIMS NEED PROMPT ACCESS TO THE

FUNDS

THE

PLAN

WOULD

MAKE

AVAILABLE. .......................................................... 5

CONCLUSION .......................................................... 12

ii

TABLE OF AUTHORITIES

CASES

Page

Adelphia Bus. Sols., Inc. v. Abnos,

482 F.3d 602 (2d Cir. 2007)……………………..4

United States v. Energy Resources Co.,

495 U.S. 545 (1990)……………………………....4

STATUTES

11 U.S.C. § 105……………………………………………3

11 U.S.C. § 1123…………………………………………..3

1

INTEREST OF AMICI CURIAE 1

Amici Curiae Cheryl Juaire, Tiffinee Scott,

Dede Yoder, Kathleen Scarpone, Stephanie Lubinski,

Lynn Wencus, Gary Carter, Wendy Petrowsky, Kara

Trainor, Kathy Strain, Lindsey Arrington, Shannie

Jenkins, Kerri Morales, C.R. Foster, and Robert

Prochno (“Individual Victims”) are individuals who

are themselves (or whose loved ones are or sadly were)

victims of Purdue Pharma L.P.’s (“Purdue”) opioid

products and each may be entitled to receive

compensation under the Chapter 11 plan at issue in

this case. Thus, the Individual Victims have a strong

interest in this case and the Chapter 11 plan that was

confirmed and approved below.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

INTRODUCTION & SUMMARY OF THE

ARGUMENT

The opioid epidemic has had devastating

consequences for individuals and communities across

the country.

In assessing the propriety of the

bankruptcy plan at issue here, parties on both sides of

this case have invoked the interests of opioid victims.

Those interests should indeed be taken into account,

as they bear on a number of factors germane to the

legal inquiry before the Court. Like any real-world

solution to a complex and difficult problem, the

settlement approved by the bankruptcy court in this

case is not perfect. From the perspective of victims,

however, it is far better than the alternative. As a

practical matter, the choice is clear: The bankruptcy

plan approved by the court of appeals supplies the only

viable mechanism for affording victims the aid they

need—and need now.

This brief draws on amici’s real-world stories

and life experiences to explain why individual victims

of the opioid crisis overwhelmingly support the plan—

with a particular focus on why victims urgently need

access to the funds at issue. This Court can and should

take those interests into account in determining

whether the challenged releases constitute an

appropriate exercise of the bankruptcy court’s

statutory and equitable powers.

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ARGUMENT

I.

INDIVIDUAL

VICTIMS’

INTERESTS

SHOULD BE TAKEN INTO ACCOUNT IN

ASSESSING THE PROPRIETY OF THE

CHALLENGED RELEASES.

Parties on both sides of this case have invoked—

and even stressed—the interests of individual victims.

E.g., Pet. Br. 5, 14, 44-46; Br. for The Official

Committee of Unsecured Creditors of Purdue Pharma

L.P. 3-4, 17, 50-51. And for good reason. Those

interests bear on several factors germane to the legal

issue before this Court.

A major issue in this case, for example, is whether

certain provisions of the Bankruptcy Code authorized

the bankruptcy court to approve, as part of a plan of

reorganization under Chapter 11, the challenged

releases. Subject to certain enumerated exceptions,

those provisions authorize a bankruptcy court to

include “appropriate” releases not otherwise

inconsistent with other provisions of the Code. See 11

U.S.C. § 1123(b)(6) (“Subject to subsection (a) of this

section, a plan may … include any other appropriate

provision not inconsistent with the applicable

provisions of this title.”); 11 U.S.C. § 105(a) (“The court

may issue any order, process, or judgment that is

necessary or appropriate to carry out the provisions of

this title.”).

In assessing whether the challenged releases are

“appropriate,” one issue raised by the parties is

whether the plan at issue effectuates “the core

bankruptcy goal of facilitating the fair allocation of the

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estates’ value.” OCUC Br. 4. Whether the plan

provides for fair and timely compensation of victims is

relevant to that inquiry.

Broader equitable considerations also permit

consideration of victims’ rights and interests. In the

proceeding below, for example, the Court of Appeals

recognized that, “as with any term in a bankruptcy

plan, a provision imposing releases of claims like that

at issue here must be imposed against a backdrop of

equity.” J.A. 890 (citing United States v. Energy

Resources Co., 495 U.S. 545, 549 (1990); Adelphia Bus.

Sols., Inc. v. Abnos, 482 F.3d 602, 609 (2d Cir. 2007)).

Pertinent equitable factors include, inter alia, “the

interests of the creditors, including the degree to

which creditors support the proposed settlement,” and

“whether other interested parties support the

settlement.” J.A. 855.

In light of those and other factors, the Court of

Appeals properly considered the interests of victims in

addressing the propriety of the challenged releases.

J.A. 892. “Without the Plan,” the Second Circuit

concluded, “the government would recover its $2

billion first, thereby depleting the res completely. As

a result, many victims of the opioid crisis would go

without any assistance and face an uphill battle of

litigation (in which a single claimant might

disproportionately recover) without fair distribution.”

Id.

In short, the parties and the courts below agreed

that victims’ interests can and should be taken into

account in assessing the propriety of the plan here at

issue. Based on their real-world experience, the

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Individual Victims are in a good position to shed light

on that important consideration.

II.

REAL-WORLD STORIES SHOW WHY

VICTIMS NEED PROMPT ACCESS TO THE

FUNDS THE PLAN WOULD MAKE

AVAILABLE.

Through collective action and self-funded

efforts, the opioid-victim community emerged from the

mediation having achieved a remarkable result: the

allocation of up to $750 million for direct injury

compensation; billions of dollars specifically allocated

for abatement of the opioid crisis; and the public

disclosure of millions of documents to build a record

that will assist society in avoiding similar

catastrophes.

Almost two years after Purdue filed for

bankruptcy, the Bankruptcy Court confirmed the

reorganization plan that fully incorporated the

settlement achieved in the mediation.

The

reorganization plan garnered the support of 96% of the

personal injury victims who voted. J.A. 359.

That overwhelming support was not just

happenstance. The Individual Victims here seek to

draw on their own stories to show why the victims

support the plan—and why individual victims so

desperately need to obtain funds for direct victim

compensation and opioid abatement programs. The

facts set forth are drawn from signed letters executed

by each of the Individual Victims, which describe in

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greater detail their own experiences. 2 From these

letters, there are four reasons underlying their

support of the plan that warrant particular mention.

First, the plan provides support for family

members left behind after the victims’ deaths. Victim

narratives tend to depict death as the end of an

individual victim’s story. All too often, however, the

death of a victim due to an opioid overdose marks the

start of a new—and potentially much longer—phase of

hardship and suffering for family and loved ones. And

in many cases, the victim leaves behind young

children that the family continues to care for after the

victim’s death.

Tiffinee Scott is one of those people. Tiffinee

has lost two of her daughters to opioid overdoses. Her

oldest daughter suffered from sickle cell disease and

was prescribed OxyContin for her pain. Once she

started on OxyContin, she became addicted and later

died of an overdose at age 28. Their youngest

daughter never recovered from the loss of her older

sister and, shortly thereafter, also died due to an

overdose. The youngest daughter left behind two

children. Tiffinee and her wife continue to care for

their daughter’s children and hope to become the

children’s permanent guardians.

Shannie Jenkins has a similar experience. Her

son struggled with opioid addiction for ten years. He

first started taking OxyContin after one of his friends

2 The letters are on file with undersigned counsel, and may

also be obtained at the following link: https://perma.cc/8G7SW99P

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found it in his grandfather’s medicine cabinet. After

years of battling his addiction, Shannie’s son had

finally achieved sobriety and was beginning to start

his new family. Six months before his son was born,

however, Shannie’s son relapsed and died of an

overdose. He never got to meet his son.

Kathy Strain has lost numerous family

members to the opioid crisis, and she raised the two

children left behind as her own. Unfortunately, this is

a common occurrence. As Kathy has explained, she

hears from “many grandparents who are living on

fixed incomes, raising children that their own children

left behind.” The plan would provide much-needed

money to help support these families while they

struggle not only with the loss of their family member

but with raising the young children left behind.

Second, the plan helps both victims and the

victims’ families financially recover from the cost of

addiction and treatment.

Dede Yoder, a single mom, spent over $150,000

from her retirement savings to help her only child

recover from his opioid addiction. Her son’s opioid

addiction started at the age of 14 after a doctor

prescribed him opioids for his sports injury. She paid

for eight different rehabilitation programs, but in the

end, he still lost his battle with his addiction. Now, in

her late sixties, she is facing the harsh reality of

utilizing her retirement funds—she is unable to retire.

Stephanie Lubinski is faced with a similar

financial loss. Stephanie Lubinski lost her home due

to her husband’s opioid addiction, and now is faced

8

with the difficult situation of not being able to afford

her own cancer treatments.

Lindsey Arrington, a survivor of opioid

addiction, had her first experience with opioids at 12years-old when a doctor prescribed her hydrocodone

for her neck pain. At the age of 17, she was given

OxyContin by one of her friend’s dad to help with her

emotional pain. She then started to buy OxyContin on

the streets. After she gave birth to her oldest son, she

continued to use OxyContin. She lost her job, condo,

and custody of her son over the span of three months.

In April 2011, she entered into a recovery program and

has been sober ever since. She now has custody of her

son again, but continues to carry the financial burden

from her past addiction.

Finally, Kara Trainor, another survivor of

opioid addiction, gave birth to her son while she was

on methadone. Her son was diagnosed with neonatal

opioid withdrawal and spent six weeks in the intensive

care unit. Now, as a twelve-year-old boy, her son is

severely autistic and requires around the clock care.

In these and countless other cases, the promise

of future money is not enough; victims and their loved

ones are in dire financial situations now. The money

from the plan would help provide instant relief and

allow the families to continue to heal financially after

their exposure to Purdue’s opioid products.

Third, the plan affords much needed funding for

education about the opioid crisis. After the loss of

their sons to their opioid addiction, Cheryl Juaire and

Kay Scarpone helped organize a group called “Team

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Sharing.” Team Sharing was designed as a way for

grieving parents to connect and mourn the loss of their

children together. The group has now expanded to all

fifty states and is working with other groups to raise

awareness about the devastation that opioids have

caused for communities across the nation. Gary

Carter, who lost his son to his opioid addiction, is an

active member of Team Sharing, volunteering with

their trailer, Hope’s Room, to create a mock bedroom

to help educate other parents on the signs of opioid

addiction in children.

Lindsey Arrington, a survivor of opioid

addiction herself, founded the nonprofit Hope Soldiers

to bring public awareness to the opioid crisis and to

bring hope to those suffering from opioid addiction in

Washington state. Over the past ten years, she has

held community events that were attended by over

1,000 people, taught people how to obtain state-funded

treatment, and provided ongoing peer support for

addicts. The plan would help continue to fund these

on-going education initiatives as well as provide

opportunities to expand these education initiatives

(and more) moving forward.

Fourth, the plan provides substantial resources

for treatment and prevention. Wendy Petrowsky, who

lost two sons to opioid drug overdoses, also worked as

a nurse at an inner city hospital in Camden, NJ. As a

nurse, she was able to see the true horrors of addiction.

She recounted how newborn infants would scream as

they were experiencing opioid withdrawal. From her

experience alone, it is clear how desperately more

funding for treatment and prevention is needed.

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In addition to caring for her son who was

diagnosed with neonatal opioid withdrawal, Kara

Trainor also has seen firsthand the trials facing those

who wish to seek treatment now. Kara works as a

Certified Peer Recovery Coach and is a part of the

Opioid Overdose Response Program. As part of her

position, she works with two local hospitals to provide

a connection between treatment centers and other

resources for any individual seeking help with

substance use disorder. She has seen countless

individuals struggle with this disease, but the

program cannot afford to help each one. It continues

to haunt her every time she has to turn someone away

who wants to get help because transportation to the

treatment center is not covered.

Kerri Morales, who has lost her daughter to an

opioid overdose, continues to watch her son struggle

with his addiction. Lynn Wencus also lost her son

after a decade-long struggle with his substance abuse

disorder. Watching their children struggle with opioid

addictions, they have both personally seen the value

that additional resources for harm reduction and

recovery would provide to families that are also going

through these same issues.

C.R. Foster, a survivor of substance use

disorder, also has seen many friends die from their

addiction after not being able to get the help that they

desperately needed. Similarly, Robert Prochno, a 73year-old veteran who still remains addicted to opioids,

has witnessed countless other veterans struggle with

their opioid addiction without any resources to help

them.

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In all these cases, increased resources for

treatment and for prevention will help to stem the tide

on the opioid crisis. The plan does just that. With the

dedicated billions of dollars to help provide resources

for treatment and prevention, it will afford other

families and communities the opportunity to help

prevent others from suffering the same fate as the

Individual Victims. Given the large number of new

victims who get caught in the web of opioid addiction

each and every day, any additional delay in funding

treatment and prevention efforts has the inevitable

consequence of consigning more families and

communities to needless and often irreversible

suffering.

***

No amount of money can bring back a beloved

family member lost to addiction or undo the traumas

routinely caused by opioid addiction. The confirmed

reorganization plan, however, is needed—and needed

now—to provide monetary relief to long-suffering

victims of the opioid epidemic—and also to prevent

more families and communities from suffering the

same fate.

Accordingly, the Individual Victims

support the final reorganization plan that provides up

to $750 million for direct injury compensation and

billions of dollars allocated for abatement of the opioid

crisis.

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CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Jamie Billotte Moses

Counsel of Record

Avery Holloman

HOLLAND & KNIGHT

Counsel for Amici Curiae Cheryl Juaire, Tiffinee Scott,

Dede Yoder, Kathleen Scarpone, Stephanie Lubinski,

Lynn Wencus, Gary Carter, Wendy Petrowsky, Kara

Trainor, Kathleen Strain, Lindsey Arrington, Shannie

Jenkins, Kerri Morales, C.R. Foster, and Robert

Prochno

October 27, 2023