UNBIASED - Texas Sues Pfizer Over Vaccine Efficacy, Supreme Court Hears Purdue Pharma/Opioid Case, Courts Say Trump Lacks Immunity, U.S. Diplomat Acted as Secret Agent of Cuba, and More.

Episode Date: December 5, 2023

1. Supreme Court Hears Oral Arguments in Harrington v. Purdue Pharma; Can the Sackler Family Be Released of Civil Liability in Opioid Crisis Through Purdue's Bankruptcy? (1:34)2. Texas Sues Pfizer Over COVID-19 Vaccine Efficacy and Censorship (17:13)3. Quick Hitters (22:20) (Doug Burgum Drops Out of Presidential Race, Courts Rule Trump Lacks Immunity, Former U.S. Ambassador Charged with Being an Agent of Cuba, White House Pens Letter to Congress Re: Running Out of Funds for Ukraine.)If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news!Subscribe to Jordan's weekly free newsletter featuring hot topics in the news, trending lawsuits, and more.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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You are listening to the Jordan Is My Lawyer podcast, your favorite source of unbiased news and legal analysis. Enjoy the show. Welcome back to the Jordan is my lawyer podcast. Happy Tuesday. This episode, we're really going to focus on two main stories. Both are lawsuits. One is in front of the Supreme Court. The other is a recently filed lawsuit out of Texas. I asked you on Instagram which stories you were most interested in. These were the two stories that I found that I found most people wanted to hear about. So we'll talk about those in depth and then I'll have some quick hitters for you. The quick hitters include a presidential election update, Trump's immunity

claims being denied, a former United States ambassador who was just arrested for acting as an agent of Cuba, and then the White House saying it's running out of money for Ukraine. Those will be today's stories. Before we get into them, let me just give you the reminder I give you every episode, which is, if you haven't left me a review yet and you like what you hear today, please go ahead and do that. If you have left me a review, thank you so much. It truly is so appreciated. As my legal disclaimer, yes, I am a lawyer. No, I am not your lawyer. Without further ado, let's get into today's stories. The Supreme Court heard oral arguments in a case called Harrington v. Purdue Pharma yesterday. Why is this case important? There's a few reasons reasons the first reason is because this is one of the most high profile bankruptcy cases in recent past a law professor at the university of

chicago called this the biggest bankruptcy case to go to the supreme court in 30 or 40 years the second reason this matters is because it'll determine whether the sackler family who owns purdue pharma and controlled purd Purdue Pharma for a very long time, can be held civilly liable for its role in the opioid epidemic. And the third reason this case is important is because it'll answer a more broad question of whether bankruptcy law allows a court to approve a bankruptcy plan that essentially gets rid of claims brought by third parties without their consent. So let's get into this. It'll make more sense as we dive into a bit more detail per usual. Purdue Pharma invented the painkiller OxyContin in 1996. And at the time

of its invention, Purdue Pharma launched a very, very large marketing campaign. It was promoting OxyContin as this non-addictive painkiller, when in reality, it was extremely addictive. And they put tons of money into this marketing campaign. I won't get too in the weeds as to how Purdue Pharma promoted this pill, but if you are interested in learning more, the show Dope Sick was a phenomenal show. There's also other shows that sort of explain Purdue Pharma and the Sackler family, but Dope Sick was one of the more popular ones.

So again, without getting too into the weeds of how deeply Purdue contributed to this opioid crisis, what you need to know is that Purdue was eventually quote-unquote caught. And Purdue has pled guilty twice to federal criminal charges relating to its deceptive marketing practices, but it's also been named as the defendant along with the Sackler family in thousands of civil lawsuits. And these civil lawsuits total around $40 trillion. So in the wake of those lawsuits, Purdue Pharma declares bankruptcy. This is in 2019. Later that year, a bankruptcy court in New York puts the lawsuits on hold while these bankruptcy proceedings are getting sorted out. And a couple of years later in 2021, the bankruptcy court accepts a reorganization plan from Purdue.

Basically, the company would be remade into a new company called Noah Pharma, governed by a new independent board. The Sackler family would stay out of the opioid business moving forward, and the Sackler family would contribute $6 billion over the next 18 years to fight the ongoing opioid epidemic. In exchange for this contribution of $6 billion over the next 18 years, the Sacklers would be protected from civil liability going forward. That means that no victim could sue the Sackler family for their role in the opioid epidemic. Mind you, the Sackler family, some members more than others, were behind all of this deceptive advertising, the bonus structures for its salespeople, the non-addictive promotion,

etc. Also keep in mind, the Sacklers themselves have not filed for bankruptcy, just Purdue Pharma. So the Sacklers are basically saying, okay, we'll throw in some billions of dollars to help this opioid crisis that we have largely contributed to, and in exchange, no one can come and sue us for our role in the epidemic, and we can keep our billions that are left over because we don't have to file for bankruptcy, but we're going to benefit from Purdue's bankruptcy. And you might be thinking that doesn't sound fair. The victims deserve to go after the Sacklers, you know, and get what they're owed.

But here's the thing. The overwhelming majority of the victims actually support this plan because the plan set aside roughly $750 million to pay the victims. And that equates to anywhere from $3,500 to $48,000 per victim, depending on the circumstances. And that is how they will get paid the fastest, is through this bankruptcy settlement, rather than going through years and years of additional litigation. So a lot of the victims, meaning relatives of those that were lost or those directly impacted by the epidemic, actually want this bankruptcy settlement to go forward. So as I said, the bankruptcy judge accepts this plan from Purdue, noting the fact that

carrying on litigation would actually cost much more for everyone involved than just settling it. But the acceptance didn't last long because shortly thereafter, a federal district court in New York vacated the decision. And note the difference, by the way. The court that originally accepted the agreement was a bankruptcy court. Now we're talking federal court, so two separate courts. The federal court is essentially checking the bankruptcy court. The federal district court ruled that nothing in the bankruptcy code, which is what governs bankruptcies in this country, allows the kind of protection from liability that Purdue's plan provides to the Sacklers, and therefore their plan is literally unacceptable. And the federal district court's rationale in part was that you

have these innocent defendants who sued the Sackler family who have not necessarily agreed to release the Sackler family from liability. So you can't just release the Sackler family without the consent of the defendants who have sued and not released the Sackler family. So the decision gets appealed by Purdue, because obviously Purdue wants this plan to go forward. On appeal, the Second Circuit rules in favor of Purdue, and they agree with the bankruptcy court that this plan is just fine. And what the Second Circuit said is this. It said there are two provisions of the bankruptcy code that when you read them together, it gives bankruptcy courts the power to approve this type of non-consensual third-party release that Purdue and the Sacklers proposed. The first provision says the bankruptcy

court can issue any order, process, or judgment that is necessary to carry out the provisions of the bankruptcy code. The second provision, which is known as this catch-all provision, says that a bankruptcy plan may include any appropriate provision which doesn't contradict the applicable provisions of the bankruptcy code. To simplify, the Court of Appeals basically said, hey, the release of the Sackler family was appropriate in this case, and because a bankruptcy court can issue any judgment necessary to carry out the bankruptcy code, the acceptance of Perdue's plan was just fine. And at that point is when this case was taken to the Supreme Court. Who took this case to the Supreme Court, you might ask? The federal government. Specifically,

a United States trustee named William Harrington. He was appointed by the attorney general to specifically oversee bankruptcy cases. Obviously, this is a bankruptcy case. So there are two big questions for the Supreme Court. One, is there standing? And this is something we've been over before. We always hear this question, right? Standing is the legal ability to challenge a particular issue. You have to have stake in the case somehow. So the question is, does the federal government, by and through Harrington, have a right to challenge the confirmation of Perdue's plan? Because remember, this isn't really a case that involves the federal government so much. And I know you might be wondering why the federal

government is appealing this case to the Supreme Court, despite, as I said, the majority of the victims want Perdue's plan to actually move forward. And the answer is just that the trustee's role is to play watchdog in some instances. And here, allowing the Sacklers to avoid liability without even declaring bankruptcy goes against policy. So the trustee doesn't want that precedent set. The federal government doesn't want to set that precedent. The second question for the Supreme Court is at the heart of the case. Does the bankruptcy code give a court the ability to accept a plan like this, to accept a plan that releases a party from claims held by third parties without their consent? Harrington sets forth two main arguments, and it follows

what I was just explaining about policy. One, what he says is bankruptcy is a basic quid pro quo. You give something, you get something. In exchange for getting virtually all of its debts cleared, Purdue has to comply with certain obligations, right? Disclosing information regarding its creditors, dedicating its assets to paying its creditors' claims, etc. But in this case, the Sacklers are able to get off scot-free without declaring bankruptcy themselves. They're shielding themselves from liability and keeping billions of dollars of their fortune and not having to declare bankruptcy. The second part of Harrington's argument is that nothing in the bankruptcy code says that this is allowed.

But on the flip side, the Sacklers obviously argue the contrary. They say nothing in the bankruptcy code says this isn't allowed. So why shouldn't it be? So the justices hear the case on Monday. And one of their main concerns was why the government is even appealing this case in the first place when most of the victims want this plan to go forward. Justice Kavanaugh and Justice Kagan specifically talked to the attorneys for Harrington about this issue.

Justice Kavanaugh, who's one of the conservative justices on the bench, got noticeably frustrated with the Justice Department's attorney not even mentioning the victim's family in his opening statement. Kavanaugh said, quote, your opening statement never mentioned the opioid victims. The opioid victims and their families overwhelmingly approve this plan because they think it will ensure prompt payment. So in those circumstances, those narrow circumstances, bankruptcy courts for 30 years have been approving plans like this. End quote. Justice Kagan,

who's one of the liberal justices on the bench, told the Justice Department's attorney, quote, It's overwhelming, the support for this plan. And among people who have no love for the Sacklers, among people who think that the Sacklers are pretty much the worst people on earth. Kagan also noted, though, that typically in bankruptcy cases, the people or corporations involved in the action, the ones actually declaring bankruptcy, have to make all of their assets available. In this case, Kagan says, the Sacklers were just able to join in on the settlement, quote, without putting anything near their entire pot of assets on the table. She also said it would be an extraordinary thing, and not necessarily in a good way,

if the court allowed the Sacklers to basically subvert the bankruptcy process. Justice Gorsuch, another conservative justice on the bench, he pointed out the serious constitutional questions that surround this issue. Mainly, that the plaintiffs who didn't sign off on this plan would have their rights violated, like their right to due process. They wouldn't have the opportunity to bring their case. And Justice Jackson, a liberal justice, she raised similar constitutional concerns. So if I had to tip the scale one way or the other from a legal perspective and base my guess on the concerns from the justices, I would guess that this case will likely go

in favor of Perdue. Unless Gorsuch and Jackson can make their arguments about constitutional concerns convincing enough, it seems for the most part that the justices are worried about the victims and which outcome will result in compensation to the victims and compensation to the victims as quickly as possible, which it seems would be accepting the plan proposed by Perdue. I do also want to mention that despite a majority of the victims supporting the plan, there are also victims that don't support the plan. They don't want to see the Sackler family released from liability. And one final note before we move on, and another big question in this case, not necessarily a question that the Supreme Court

has to answer, but a question worth mentioning is how does this affect the ability of other corporations and wealthy people to take advantage of the bankruptcy system to avoid mass tort liability. And mass tort is, it just means a lot of people are harmed at once. And this is actually one of the trustee's arguments as well. If the Supreme Court rules in favor of Purdue and allows for the release of the Sackler family from liability, what sort of precedent does that set for companies or people that can just declare bankruptcy and absolve whoever of liability? And it's not that this hasn't been done in the past. This definitely has been done in the past. But the Supreme Court setting a precedent could certainly encourage companies to do this more often. For this reason, some groups

have actually filed briefs of their own supporting the confirmation of Purdue's plan. The United States Conference of Catholic Bishops, their brief reads, quote, the judicially supervised releases that these entities receive in exchange, almost always with the overwhelming support of abuse claimants, provide the only viable means for the Catholic infrastructure in many communities to survive what has become decades of mission-crippling litigation. End quote. The Boy Scouts of America, who recently reorganized with a bankruptcy plan of their own, wrote a brief as well that said if the government's reading of the bankruptcy code had been applied to the Boy Scouts bankruptcy, most survivors of the scouting-related abuse would have gotten nothing. And furthermore, that scouting as an

organization would likely be finished. So there's a lot of groups that support Perdue's plan because they have done something similar. And it's also worth noting that all 50 states support Perdue's plan as well. Now, I know that was a lot of information. So let's take a quick break. When we come back, we'll discuss Texas's lawsuit against Pfizer, as well as some quick hitters. In a new lawsuit called the State of Texas vs. Pfizer, Texas' Attorney General Ken Paxton writes, quote, The COVID-19 vaccines are the miracle that wasn't. At the end of 2020, defendant Pfizer, Inc., broadcast to the world that its COVID-19 vaccine was 95% effective. Based on this and other statements made by Pfizer touting the efficacy of its new vaccine, Americans were

given the impression that Pfizer's vaccine would end the coronavirus pandemic and lift the omnipresent veil of fear and uncertainty from an anxious public. Placing their trust in Pfizer, hundreds of millions of Americans lined up to receive the vaccine. Contrary to Pfizer's public statements, however, the pandemic did not end. It got worse. More Americans died in 2021 with Pfizer's vaccine available than in 2020, the first year of the pandemic. This in spite of the fact that the vast majority of Americans received a COVID-19 vaccine, with most taking Pfizer's. Indeed, by the end of 2021, official government reports showed that in at least some places, a greater percentage of the vaccinated were dying from COVID-19 than the unvaccinated. Pfizer's vaccine plainly was not 95% effective. The lawsuit then

continues on and says, how did Pfizer respond when it became apparent that its vaccine was failing and the viability of its cash cow under threat? By intimidating those spreading the truth and by conspiring to censor the vaccine's critics. Pfizer labeled as quote-unquote criminals those who spread facts about the vaccine. It accused them of spreading quote-unquote misinformation and it coerced social media platforms to silence prominent truth-tellers. Indeed, Pfizer even went so far as to request that social media platforms silence a former FDA director because his comments could, quote, drive news coverage, end quote, critical of the vaccine. In summary, Pfizer intentionally misrepresented the efficacy of its COVID-19 vaccine and censored persons who threatened to disseminate the truth in order to

facilitate fast adoption of the product and expand its commercial opportunity. In light of the multi-billion dollar bet that Pfizer made on the vaccine and its need to quickly establish the product as the marketing leader, Pfizer was heavily incentivized to, and in fact did, make misrepresentations intended to confuse and mislead the public in order to achieve widespread adoption of its vaccine. This suit seeks to hold Pfizer responsible for its scheme of serial misrepresentations and deceptive trade practices. End quote. So this lawsuit really focuses on two points. One, the efficacy of the vaccine and Pfizer's quote-unquote misrepresentations. And then secondly, the tactics that Pfizer allegedly implemented once people started speaking out about the lack of efficacy of the vaccines.

Censorship, things like that. This lawsuit is seeking $10,000 for every alleged violation in addition to other monetary penalties, which total more than $10 million. Now, because I like to give you multiple sides to a story, the Texas Tribune, which was one of the outlets that reported on this lawsuit, added some context to one of the claims in the lawsuit, specifically the claim that more people died in 2021 after the vaccine was available than in 2020. And what the Texas Tribune said is this, quote, it's true that the virus killed more people in 2021, twice as many, but that's a calendar year measure of 12 months of full-on pandemic-level infections compared to less than nine months the year before, in which deaths were staying in the double digits in most states in the early weeks. Of the 1.2 million Americans

who have died from COVID since the first death was recorded in March 2020, more than half of them died within the first 12 months. By then, only a third of Americans had gotten the shot. In a statement from Paxton's office about the lawsuit, Paxton said, We are pursuing justice for the people of Texas. Whereas the Biden administration weaponized the pandemic to force illegal public health decrees on the public and enrich pharmaceutical companies. I will use every tool I have to protect our citizens who are misled and harmed by Pfizer's actions, end quote. As for Pfizer, they gave a statement to Reuters and said that its representations about the vaccine have been, quote, accurate and science-based, end quote, and that Paxton's lawsuit has no merit.

Pfizer also said the vaccine has, quote, demonstrated a favorable safety profile in all age groups and helped protect against severe COVID-19 outcomes, including hospitalization and death, end quote. Now let's get into the quick hitters. The first one being that Doug Borgum dropped out of the presidential race. He first launched his bid as a Republican candidate about six months ago, and you may have seen him on stage in the first two debates, but he failed to qualify for the third debate because of low numbers, and he also failed to qualify for the upcoming fourth debate as well. In his farewell statement, he criticized

the RNC, mission is to win elections. It is not their mission to reduce competition and restrict fresh ideas by narrowing the field months before Iowa caucuses or the first-in-the-nation New Hampshire primary. These arbitrary criteria ensure advantages for candidates from major media markets on the coasts versus America's heartland. None of their debate criteria relate to the qualifications related to actually doing the job of the president. The effort to nationalize the primary system is unhealthy for the future of the party, especially for a party that proclaims to value leadership from outside of Washington. End quote. And this story reminds me the fourth Republican debate is tomorrow, Wednesday night, 8 p.m. Eastern time. It's being hosted by News Nation. So that's where it'll air. It'll be on live TV as well as online. And it's hosted by Megyn Kelly from the Megyn Kelly Show podcast,

formerly Sunday Night with Megyn Kelly on Fox, Elizabeth Vargas, the lead investigative reporter for A&E and formerly a co-anchor of ABC World News Tonight, and also Eliana Johnson, who is editor-in-chief of the Washington Free Beacon and formerly a producer for Hannity on Fox. News Nation is an unbiased platform. That's what they proclaim themselves as. I actually do a lot of my research on there. If you haven't heard of them, definitely check it out. The second quick hitter I have for you is that Trump had two rulings against him on Friday, both saying the same thing, that he lacks presidential immunity in his election interference case and in January 6th cases. So there's no need to spend a lot of time on this story because it's fairly straightforward. Trump was trying to assert a presidential immunity

defense, but both the district judge in the election interference case and the panel of appellate judges in the January 6th case said that the defense doesn't apply here because Donald Trump wasn't acting in his official capacity as president, but rather as a candidate campaigning for a second term. The third quick hitter I have for you is about the former U.S. ambassador to Bolivia, who has been arrested and charged with acting as a secret foreign agent of Cuba. We saw something similar happen recently with a senator from New Jersey, Senator Menendez. He was charged with being a secret foreign agent of Egypt, along with some

other charges. But this man, Victor Manuel Rocha, he is a former American diplomat, but most recently worked for a consulting firm. And he was actually working with that consulting firm at the time of his arrest. Officials say that he met with an undercover FBI agent last year in 2022, and this undercover FBI agent was posing as a member of Cuban intelligence. And Rocha continually was referring to the United States as the enemy and often praised Fidel Castro and Castro's regime in Cuba. Rocha talked about how he was in charge of the, quote, knockdown of the small planes, end quote, which prosecutors believe is in reference to an incident during Rocha's time working for the State Department in Havana when

Cuba shot down two unarmed planes operated by a United States-based group, which was opposed to Castro's government. According to court documents, Rocha allegedly said his number one concern and his number one priority was ensuring Washington didn't take any actions that would endanger the life of the leadership or the revolution in Cuba. So his number one priority was Cuba and not the United States, despite working for the United States. The fourth and final quick hitter for you is this letter that the White House budget director wrote to Speaker Johnson, Senate Majority Leader Chuck Schumer, House Minority Leader Hakeem Jeffries, and other congressional leaders on Monday, saying that the United States

is running out of time and money to help Ukraine fight its war with Russia. The letter said in part, I want to be clear, without congressional action, by the end of the year, we will run out of resources to procure more weapons and equipment for Ukraine and to provide equipment from U.S. military stocks. There is no magical pot of funding available to meet this moment. We are out of money and nearly out of time. As President Biden has said, when dictators do not pay a price for their aggression, they will cause more chaos and death and destruction. And the letter finishes by saying, we are out of money to support Ukraine in this fight. This isn't a next year problem. The time to help a democratic Ukraine fight against

Russian aggression is right now. It is time for Congress to act. And this letter, of course, follows President Biden's recent request for $106 billion. That was for Israel, Ukraine, Taiwan, I believe a little bit of border security and some humanitarian aid, but nothing happened with that. So this letter comes following that in hopes that Congress will do something specifically as it pertains to Ukraine. That's what I have for you today. Thank you so much for being here. I hope you enjoyed this episode. Have a great week, and I will talk to you on Friday.