Listen to the episode and read the show notes
Topics of Discussion:
- Support the Show!
- Democratic Debate Discussion
- The Mann Act and Epstein
- Opioid Crisis – Oklahoma trial and possible Purdue Pharma Settlement
- Supreme Court Decisions Math
- T3BE Answer
Thomas: Hello and welcome to Opening Arguments this is episode 311, ooh, 3-1-1, is that something? Or am I thinking of 4-11? [Laughs]
Andrew: Yeah, all the things that end in 11 I think are actual. 3-1-1 is that non-emergency police? I don’t know.
Thomas: Oh, maybe that’s it, yeah. Well that’s good for this, this is a non-emergency but still very important!
Andrew: Yeah! [Laughs]
Thomas: I’ve taken my opioid.
Andrew: This is a 3-11 episode, there we go!
Thomas: [Laughs] I’m Thomas Smith, that over there is Andrew Torrez, how’re ya doing Andrew?
Andrew: I am fantastic, I’m extra fantastic since we got to do a numerology intro, so, those are the best!
Thomas: Hmm, yeah I’ve slipped my opioids as you told me to do, so we’re talking opioids today, finally. We’re also going to talk about the Mann Act and Epstein, that’s something we wanted to cover before but it got pushed off ‘cuz there’s too much important news, but it’s a very worthwhile question for Andrew to answer. And also, like I said, opioids – that big ruling, big settlement, and I think it’s actually big, not just “oh that seems like a big number but it’s 4 minutes worth of income” this one seemed actually big to me, so we’ll see if Andrew agrees, and then finally we’ve got a little follow-up on people crunching the numbers on what we should expect, statistically, from Supreme Court decisions. So that was interesting, we can talk a little bit about that. Well, that’s our agenda! Before we do that, do you have any announcements?
Support the Show!
Andrew: So just two things. Number one, we haven’t done a real proper begging segment in a while. Hopefully, this is the beginning of September, we just released in the main feed the entire two-hour plus breakdown of Alex Jones’ deposition, you can expect stuff like that, Law’d Awful Movies every month if you’re a patron, if you’re a longtime listener of the show, you love the show, and you are gainfully employed and can support it, you know, look, we have law students, we have single moms, we have people who can’t afford to support the show, and we totally get that, but if you can kick us a buck, kick us a buck! Ask a patron, they will tell you that they do not regret it. It’s what enables us to keep the show going and bring you the kind of content we bring you, so if you’ve been thinking about it, I know it’s a pain – Patreon is a totally, they’re capitalized with like 9 figures, they have like a hundred million dollars of venture capital, they’re totally safe to give them you’re credit card, and head on over, patreon.com/law to sign up, help us out and you’ll get lots-
Thomas: And if you aren’t aware, all you do is they give you a link with the RSS feed, you plug that into you’re whatever podcast thing you use, and then you just get all the bonus stuff automatically.
Thomas: So it’s like you’re subscribed to the full thing.
Thomas: Don’t, lest anyone think, “oh I don’t wanna go to a website and download something,” no, no! You get it all in the feed, so it’s super easy, super convenient and give it a try! Try it out!
Andrew: Yeah, you get the ad-free episodes of the show, sometimes you get early, sometimes you get extended episodes, often you get bonus episodes, it’s great stuff! If you can’t, if you’re a law student, if you’re a single mom, if, you know, the other thing you can do, we’ve kind of fallen behind in this a little bit, head on over to iTunes, head on over to Stitcher, to any of the places where you can rate podcasts and give us 5 stars, that helps increase the visibility and get the show out there.
Thomas: Six if they’ll let you!
Thomas: But 5, yeah.
Andrew: This is like Uber and it’s like AirBnb, right? Giving us 4 stars is like-
Thomas: A death sentence?
Andrew: -well they’re one step above Hitler, right?
Andrew: Like, seriously it is. If you think we’re one step above Hitler then, you know, keep that to yourself.
Thomas: We try to be two steps above Hitler, so give us the 5 stars!
Democratic Debate Discussion:
Andrew: Yeah, give us the 5 stars! Okay, that’s enough on the begging. Thomas, I also wanted to talk about the September 12th Democratic debate!
Andrew: The criteria doubled!
Thomas: Boy am I looking forward to it now! I wasn’t [Laughs] there was going to be an eleventh candidate, I forget who it is, I’m blanking on it, but somebody was right on the verge and they were thinking, “oh the poll will be released that will get them onto the stage” and if they had eleven – I cannot believe this – but if they had eleven they were going to do two nights and do a 6 and 5. They wouldn’t have just smashed in another podium or maybe just set up a little folding table to the side and been like “alright, you can be in on this one.”
Thomas: [Laughing] Which would’ve been way better! And appropriate, too, to like kinda be demeaning about it?
Andrew: I really would like them to do 6 and 5 or-
Thomas: You would? Ooh. Okay.
Andrew: I would like to have two nights, each with five candidates on the stage-
Thomas: I’m tired of it.
Andrew: -get a little more in depth. I feel like 10 it’s just hard to stand out-
Thomas: Look, I agree that 10 isn’t great, but two 5’s is also awful. The problem is you have to repeat territory. So like the moderators – there’s two possibilities. Either you ask them all the same questions, which you don’t want ‘cuz it’s like, if the public is gonna watch two debates – and, by the way, if they had two one of them would’ve been on a Friday night, it would’ve been Thursday, Friday, no one would’ve watched the Friday night one, so yeah. It’s a disaster all around, I think, it’s way better to have one, but if you have two they can’t help but, like, react to each other so then that kind of is unfair to the first night, you know? The second night gets to react and have different answers. I dunno, either way you do it it’s gonna be terrible, and also I’m tired of not having Elizabeth Warren interacting with Biden or whatever, we need to get ‘em all on one stage, I think.
Andrew: I agree with that, but I would just do that by doing what the Republicans did and have the top five-
Thomas: The JV? Yeah.
Andrew: -candidates go the first night and have the JV table on Friday night.
Thomas: I agree. Well, the JV should be like Wednesday at noon.
Thomas: And there’s nobody even, whatever.
Andrew: Friday night is pretty bad!
Andrew: That’s not a great time for folks wanting to sit down and curl up with a nice two hours of policy-
Thomas: I feel like, to me, I’m so much different than the average American, ‘cuz when I was like “well what’s the problem with Friday night? That sounds great!” [Laughing] I’d love to just like watch a – crack open a cold one or a bottle of wine and have a little date night with the wife and watch a debate, that sounds fantastic to me!
Andrew: I would be, you know, inching my way towards the two of you on the couch, that sounds like a lot of fun!
Thomas: Oh, anytime! It’s a good thing we don’t live anywhere near each other, ‘cuz I’m sure my wife would be like, “hey, wasn’t this our date night?” and then Andrew would be there in the middle.
Thomas: No! This was always the plan!
Andrew: This is spectacular guys! I’m having fun! You guys having fun?
Thomas: [Laughs] Yeah, right! You’d cook us one of your amazing dinners and it would be – you could just move in, it’d be fine! [Laughs]
Andrew: There we go, alright! And look, I suspect because I think you and I feel similarly, I really liked the campaign that Kirsten Gillibrand ran.
Andrew: I thought she was good in both debates, but she failed to break through, and so she didn’t qualify for the second one and dropped out, and that is the responsible, adult thing to do. Anybody that didn’t qualify for the second debate who stays in is staying in on vanity, greed, ego-
Thomas: Yeah, no kidding!
Andrew: I don’t get it.
Thomas: What do you think’s gonna happen? Oh, yeah [Laughs] after not being on the one stage that all the serious candidates are on, then I’ll really get my push afterward?
Andrew: And again, this threshold is not a big threshold. This is 130,000 unique donors and 2% in four separate polls.
Andrew: Look, I wouldn’t get 130,000 donors, right?
Thomas: Yeah. You only got a couple thousand patrons! [Laughs]
Andrew: Yeah. If we had 130,000 patrons I would get to join them on the stage, that would be fantastic.
Andrew: Look, Julián Castro and Andrew Yang qualified for this.
Thomas: I was gonna say that, yeah!
Thomas: And I’m glad, too, by the way, that Julián Castro’s qualified, that’s an example of somebody who really – I think he’s maybe the only person who really gained, like took the opportunity in a debate to make the case and launch himself into that next echelon, that upper echelon of candidate. I don’t know that he’s gonna win or anything, but, you know, he went from zero to in this debate, which is cool!
Andrew: Yeah! I think that’s right, that’s the way the process is supposed to work, so, ya know, yeah I’m personally disappointed to see Gillibrand go, but that’s what you do at this point and, you know, the idea of having a continuing winnowing process, if we get down to 5 or 6 by the next one that would be ideal.
Thomas: That would be so great. Oh, such a relief!
Thomas: You just get to hear the people that actually have a chance debate.
Andrew: Yeah, and look, this is – I’ve been saying for a very long time, you know, polls don’t matter, it’s early. September the year before the primaries, that’s when polls start mattering. That’s when things start being predictive. Now, that does not mean there isn’t, you know, tremendous room to move around, but this was the time in 2015 when people started taking Trump seriously. I mean, nobody’s ever taken Trump seriously but-
Thomas: Did we take him literally but not seriously?
Andrew: Right, right. This time in 2003 was when Howard Dean went from 1% to 35%, right?
Thomas: Wow, what a jump!
Andrew: I’ve mentioned that quite a bit and so, ya know, and again, Dean didn’t get the nomination, he collapsed right before Iowa, but this is the time where we start going from it being just name recognition and people are starting to kind of dial in and focus, and the social science literature says that it matters, so, you know, to me – and again, probably gonna lose patrons over this, it seems pretty obvious to me that you have four candidates who can realistically get the nomination at this point. You have Biden, Sanders, Warren, and Kamala Harris. I don’t see a path for anyone else, you wanna put Pete Buttigieg in there? It looks like he sort of peaked early and is fading, but, you know, fine if you squint – I think everybody else who’s still on that stage either falls into the category of Andrew Yang who is running on an issue, UBI, which we will discuss on the show! Or is running for Vice President, right?
Andrew: And you can see the appeal of an Amy Klobuchar, Cory Booker, Beto O’Rourke, Julián Castro, those are four very, very plausible – and Pete Buttigieg I would put in the Vice Presidential pool, but, you know, again I’m gonna lose listeners over that, and I wanna have Pete on the show!
Andrew: We’ve tried to reach out through a couple of channels, he’s done-
Thomas: I feel like we could almost get Yang. ‘Cuz he just does everything, you know?
Thomas: We should’ve gone for that, but I dunno.
Andrew: Alright, I’ll reach out to Yang too! But, uh, Pete’s done podcasts smaller than ours, so, you know.
Thomas: What? Ah, okay. We should get him. I like Buttigieg, we could talk about his, I’d love to talk about his version of Christianity and all that stuff, it’s really interesting.
Andrew: Yeah, that’d be great!
Thomas: You know, it’s interesting because at the same time I do wish we could just hear from those four candidates and also, Andrew, I appreciate we get to do a little punditry here, this is fun! I don’t normally do it, but okay! I also really want Julián Castro on the stage just for what he adds to the conversation, and I would put Booker actually a little bit in that category personally. Whereas someone like Beto, I just don’t feel like he adds anything that I haven’t heard somewhere or Klobuchar who just says “hey I’m a moderate and so vote for me.” You know? And so I kinda wish it was smaller but I also see the value that some of these candidates, even though they don’t likely have any chance, I like what they’re adding to the conversation.
Andrew: I agree with you, I agree with you. But go ahead, finish.
Thomas: Well, I was gonna say, I suppose Kamala Harris would be like the one non-white candidate of the four that you talked about who are the top four, but she also has some stances that have been in that past a little more conservative on things like, you know, criminal justice and all that in a way that I think that Julián Castro and Booker are a nice counterweight to that I appreciate on the stage, so, anyway that’s what I’m looking forward to.
Andrew: I agree with that, I’m looking forward to it, and then I assume you will do your usual fantastic job of covering the debate on SIO!
Thomas: Well, yeah, and Jamie over there, if anyone hasn’t checked it out, I’ve been working with co-host Jamie Lombardi who’s a philosopher and has a doctorate, teaches philosophy, has been a lot of fun, she’s really great, and she’s been really looking forward to jumping on for a debate episode once that comes up, so. Every now and then I’m like, “what should we cover” and she’s like “oh, there’s the debate!” and I’m like, “yeah, it’s in September.”
Thomas: She’s really chomping at the bit for that, I can’t wait.
Andrew: Excellent, excellent.
Thomas: Alright well, that aside it’s time to get to the show. But, you know , that was fun.
Mann Act & Epstein Discussion:
Thomas: Let’s talk about this Mann Act and why Epstein was not charged under it. Am I correct in saying that this has been a little bit of a conspiracy theory related thing?
Andrew: Yup, absolutely a conspiracy theory related thing.
Thomas: What’s the theory? Let me put on my tinfoil hat.
Thomas: Joe Rogan this right into my brain! [Laughs]
Andrew: Yeah! [Laughs] Well, first, it’s all moot now because the indictment against Epstein in the Southern District of New York has been nolle prossed, that is nolle prosequi which is Latin for “we’re not doin’ anything with this.”
Andrew: And that’s because he’s dead. [Laughing] You know, we tend not to proceed to, you know, criminal verdict against dead people.
Thomas: But I have been really wondering about that, though. I don’t know if you’re gonna explain this or if it, and apologies if it’s not what you wanna talk about at all, but I have been wondering, if I’m potentially liable to somebody, let’s say I’ve wronged them in some way, and they could get a bunch of money from me potentially, but then I just kill myself, is my money then safe? Like it’s in my family? Is there a way for victims to still get restitution? Or once you off yourself then you’re out, everything’s safe?
Andrew: Oh, no! So civil lawsuits can proceed against the Defendant’s estate.
Thomas: Okay, alright, I see. Yeah.
Andrew: So it’s just the criminal proceeding.
Andrew: So it’s a really good illustration, and it’s much better, right? Because as we saw, for example, most famous celebrity in history, in recent history in terms of legal proceedings, right? The O.J. Simpson trial-
Thomas: O.J. Simpson’s Department of Juice-tice?
Andrew: Criminally, yeah. Criminally not guilty, civilly definitely liable and that will continue, those civil cases will continue against Epstein.
Thomas: Gotcha, okay.
Andrew: But yeah, back pre-Epstein’s suicide, which, again I feel like we had a little bit of a bubble, a conspiracy bubble of, you know, was there a hit? And was it inconsistent? And I think now we’ve sort of come around to, no, just a relatively old dude like hung himself in prison.
Thomas: I think you and I certainly feel that way and I think a lot of people listening might, but I also think there’s a gigantic number of people in America who just take it for granted that he was killed. I wanna see the numbers, actually, I’m curious if they’ve done any polls on it.
Andrew: Yeah, me too, send that if you’ve got the numbers if you’re a listener. So this question was, “isn’t it suspicious that Jeffrey Epstein was not charged under the Mann Act?” And so, in answering that I thought I would take a little bit of a trip down nostalgia lane and talk about what the Mann Act is! [Laughs]
Thomas: That sounds like a great Tuesday Deep Dive!
Thomas: Let’s do it!
Andrew: So, the Mann Act was originally called the White Slave Traffic Act. Oof, put a pin in that and be happy that it’s not 1910 anymore. In its original form it made it a felony to engage in the interstate or foreign commerce transport of, quote “any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose.” And if you’re a good Originalist you might be looking at that, going “okay, I get prostitution, not 100% certain on debauchery, that seems like that’s a term that’s kinda going out of fashion, but what does ‘any other immoral purpose’ mean?” Again, remember, this thing is called the “White Slave Traffic Act” right? So, you know, you’d think it should be a criminal thing. Well to explain what “any other immoral purpose is,” we look to a case called Caminetti v. United States, 1917 case, so it only took a year for the Supreme Court to rule, so it only took about six years for prosecutors to invoke the Mann Act in this situation, and you might be able to guess where I’m going. This is two married guys-
Andrew: -who lived in your neck of the woods, Thomas! Sacramento, California.
Thomas: Oh, cool!
Andrew: They decided they were going to travel, a road trip. It’s 1916 so, you know, a Model T with the top down, or something?
Thomas: Yeah. Half of all people who traveled in road trips died back then, but that’s okay.
Andrew: [Laughs] They died of dysentery, it’s a reverse Oregon Trail!
Andrew: They were going from Sacramento to Reno with their girlfriends, and so, ya know-
Thomas: Sounds debaucherous to my 1910 ears!
Andrew: Yeah, and it also did to their wives who found out about this road trip. I’m just trying to envision the old-timey, like “yeah, Bob and I are headed out to Reno for fantasy… football… draft…” So wives found out and told the police. And these guys were arrested in Reno and convicted under the Mann Act because they were transporting women or girls, namely their girlfriends, across State lines from California into Nevada for “any other immoral purpose” and in this case the immoral purpose was to have, you know, a consensual sexual relationship outside of their marriage. And this case made it up to the Supreme Court because [Laughing] there was nothin’ else going on in the United States in 1917 [Laughs] You know-
Thomas: [Laughs] Yeah, nothing more-
Andrew: -World War I, the collapse of the Czar-
Thomas: -flu epidemic, yeah.
Andrew: You know, yeah. But the Supreme Court affirmed the convictions, they said “any other immoral purpose” included consensual extramarital affairs, and do you remember I told you to put a pin in the whole “White Slave Traffic Act”? The Supreme Court said, “look, that’s not the immoral purpose that Congress meant.” So this actually becomes one of the first textualist decisions of the Supreme Court.
Andrew: They’re saying, “Look, any other immoral must mean any other immoral, let’s not pretend that we know what the Legislature,” which, by the way, is only 7 years later, it’s not hard to ask them, or look at their contemporaneous record-
Thomas: Yeah, but that’s some broad catch-all language there.
Thomas: Doesn’t that essentially give you license to legislate morality of any kind that you feel like? Any immoral purpose? Are they gonna, like, uh – try to gamble, try to just do anything that they feel like they’re gonna drink or they’re gonna do anything that somebody feels is immoral? That’s kinda broad, isn’t it?
Andrew: I think – and you’re right. So let me read the language the Supreme Court uses and then I think your implicit criticism is they’re going to use this broad language but even then they don’t really mean it, right? So here’s what the Supreme Court says, it says “where the language is plain it admits of no more than one meaning the duty of interpretation,” you know, to look at what the Congress thought, “does not arise and the rules which are to aid doubtful meanings need no discussion. There is no ambiguity in the terms of this act, it is specifically made an offense to knowingly transport in interstate commerce any woman or girl for the purpose of prostitution or debauchery or for, quote, ‘any other immoral purpose,’ or with the intent and purpose to induce any such woman to engage in any other immoral purpose.”
Thomas: So I’m gonna take a friend of mine and we’re gonna go jaywalk in Vegas.
Thomas: So I’m gonna be convicted of the Mann Act?
Andrew: And under the plain meaning of what the Court says in Caminetti, that would apply, under reality if the Caminetti Court, and if we time travel back to 1917, you look at this decision, you’re like “alright, I’m gonna test this law, I’m going to transport a woman across State lines for the purpose of encouraging her to jaywalk” there is 100% certainty that the Supreme Court would say, “well, okay, ‘for any other immoral purpose’ is in a clause, it’s in a list of three things, where the first two things are prostitution and debauchery, those refer to sexual conduct, so it means any other immoral sexual purpose” they just didn’t-
Andrew: I am as certain as I am of anything on earth that that’s how the Supreme Court would come out, but notice, and this is why your criticism is dead on, and this is reason number 11,406 why textualism is nonsense, notice that if the Supreme Court is to be believed, I just read you the passage, they said “nope, we don’t use any canons of statutory construction here ‘cuz the meaning is plain from the language” and your point, supremely well taken, there is no such thing as a Supreme Court case in which the meaning of the statute is 100% clear. I feel very comfortable saying that. Are there things in which it’s completely clear? Yeah, it’s completely clear when it says “the speed limit is 55,” right? But even then, how many – all of our listeners understand that you can go 57 when it says 55.
Thomas: Mm-hmm (affirmative).
Andrew: And I cannot think of a single bright – here’s a bright line that we can enforce. You must be 18 years old to vote. Now, notice again that there are exceptions to that. States have allowed 17 year olds to vote in primaries if they’re gonna be 18 at the time of the general, but assume we can still pick a number, right?
Thomas: Mm-hmm (affirmative).
Andrew: And figure out, it’s two days shy of your 18th birthday on election day 2020, you don’t get to vote, there’s zero ambiguity that’s correct. That case doesn’t get to the Supreme Court because there’s zero ambiguity.
Andrew: That case is 100% open and shut. This is something that you learn really on day 1 of law school, which is there are no – you can divide, and we’ve talked about this, we talked about this in the Whitehouse brief, you can divide things into easy and hard cases or political and apolitical cases, but even if it’s 9-0, even if the Court comes down in a way that is decisive, there’s no such thing as an easy case like the “you have to be 18 to vote,” “you have to drive at 55” at the Supreme Court. All of these hit the Supreme Court because there’s some ambiguity, because there’s some tension between what the law says and what the law means and that’s kind of why I wanted to have this discussion about the crazy interpretation of the Mann Act in 1917, I can tell you that because of this decision, and it wouldn’t be an OA segment if I didn’t depress the hell out of people.
Andrew: The Mann Act has been shamefully used in our nation’s history against what used to be called miscegenation.
Andrew: African Americans, usually black men transporting white women across state lines. Today the Mann Act is codified at 18 U.S.C. § 2423(a) and the women or girls bit and the immoral purpose bit has been brought into the 21st century, and it now says “a person knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth territory in possession of the U.S. with intent that they engage in prostitution, or in any sexual activity for which a person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life,”
Thomas: Well, that sounds good then.
Andrew: Yup, yup!
Thomas: That’s like a maybe stop human trafficking?
Andrew: Yeah, and 2421 does not, it repeats that language “for any person,” right? So I want to say, the Mann Act by its terms, the Caminetti, you know, “carousing guys step out on their wives with their girlfriends on a trip” in a State in which adultery is illegal like New York for example, the Mann Act could still technically apply to-
Thomas: But it said “under 18” right?
Andrew: No, no no, that’s 2423 is under 18, 2421 is any individual.
Andrew: So you could technically still prosecute someone if they take their girlfriend to New York if they engage in any sexual activity for which a person can be charged with a criminal offense and adultery is a criminal offense in the State of New York. So there’s the Mann Act and it is – I read nothing into, I think we’ve said this previously – Epstein was charged with two counts, he was charged with conspiracy and sex trafficking under 18 U.S.C. § 1591, and the specific indictment said with girls as young as 14, that hits subsection (b)(2) which carries a mandatory minimum penalty of 10 years. So the crimes for which he was charged have the exact same statutory penalty as the Mann Act, the way in which we’ve gone through the Federal Sentencing Guidelines, adding on additional counts would not have added them consecutively onto Epstein’s sentences, but each, under the different theories, but each individual act with each individual girl could indeed be added on consecutively so there was no-
Thomas: They didn’t need to do this, is what you’re saying?
Andrew: They didn’t need to, unlike the Florida deal. The Florida deal was clearly politically, you know, sweetheart. We know that, we’ve talked about that at some length. That’s not what happened with the failure to charge Epstein under the Mann Act and, you know, we don’t need the catch all Mann Act to cover child trafficking or sex trafficking, that is specifically codified in the sections that I talked about, and you know, I’m not a huge fan of the way the Mann Act has been deployed in our nation’s history for the reasons that we’ve talked about, so nothing nefarious, a little bit of a story, a little bit of a dig at Originalism, and I thought it was worth covering.
Thomas: Yeah, well nice Deep Dive! That was interesting. Definitely some disturbing history there, but I’m glad the Mann Act is less disturbing now and might actually be useful for stopping some really bad people so that’s good.
Thomas: Alright, why don’t we take a little break and then talk about the major opioid settlement.
[Commercial – ziprecruiter.com/oa]
Opioid Crisis Discussion:
Thomas: Okay, so give us the details. I saw the news alerts on this and I knew you were going to talk about it! [Laughs]
Thomas: So give us the Andrew breakdown, what happened here?
Andrew: So this arises out of the Oklahoma lawsuit that we discussed in episode 292, and that case has gone to verdict, that was a bench trial so no jury, Judge verdict against Johnson & Johnson for $572 million dollars. In the immediate aftermath, the day after that verdict came out, Johnson & Johnson’s stock went up, so some questions back and forth of “hey, why is this Johnson & Johnson? Is this too little?” and I want to disentangle all of the parts of this lawsuit and explain what it means going forward. The news stories that you’re alluding to, Thomas, are multiple reports that in light of this verdict Purdue Pharma, which is responsible for OxyContin, which is the first domino that started the chain that led to the opioid crisis. We’ve talked about them at significant length in multiple episodes on this show. They have offered to settle the multi-district litigation, thousands of cases that are pending in Ohio for $10 to $12 million dollars – excuse me, $10 to $12 billion dollars.
Andrew: And the Sacklers divesting themselves of the ownership of Purdue Pharma. This has been described in various places as kind of an asbestos-style settlement, the idea is that then Purdue Pharma would be restructured, taken in to bankruptcy, and restructured as a Trust to pay out amounts owed to victims of the opioid crisis. I’m gonna explain why they would make that offer in light of this verdict in a minute. I want to say the settlement also involves the Sacklers kicking in – so, Purdue Pharma valued at $10 billion, the Sacklers would kick in $3 billion of their own money, the Sacklers collectively are estimated to have a total net worth of $13 billion dollars, so-
Thomas: Pretty significant.
Andrew: $3 billion’s a lot of money.
Andrew: They still will have made, you know, inordinate gobs of money on wrecking rural America, basically. The notion – this does not really follow the tobacco settlement as much as it seems to me to be rather similar to the model in asbestos litigation, so at the time that asbestos litigation exploded the Johns Manville company was the worldwide leader in the manufacture of asbestos, they were essentially, you know, amalgamated Asbestos Company, Inc., right? If they’d been a 1910 company they would have been called “Asbestox” or whatever. Johns Manville manufactured most of the asbestos that was in use around the world. Once we realized that asbestos was very, very dangerous it was clear Johns Manville was not going to continue as a company, that their liabilities would vastly exceed the company’s assets, and so the company was taken into a Chapter 11 bankruptcy, restructured, they created the Johns Manville Trust and all of the proceeds of the Johns Manville Corporation were then used to pay out asbestos claims. So that model, I think, is kind of what Purdue Pharma is anticipating with this proposed settlement. That they would be turned into a Trust to pay out sums in connection with the opioid crisis. So that’s your initial offer in settlement, we’ll wreck the company and we’ll kick in $3 billion dollars. I think that helps indicate the [Laughing] the significance of this Oklahoma verdict.
Thomas: Yeah. So is the idea that, like, this is just one State.
Thomas: So if this could happen all over the country, by the time it’s all said and done that’s a lot of money so therefore this was a good deal to them?
Andrew: Well it’s that and also this is the vindication of the public nuisance theory in Oklahoma.
Andrew: So we discussed that briefly in 292, but this was not a product defect, right? There are lots of potential claims that one might make against Purdue Pharma. You might make a strict products liability claim, you sold a thing, OxyContin, that is as used, unreasonably dangerous. That certainly seems true, right? You, Purdue Pharma, engaged in deceptive marketing techniques that violate the uniform unfair marketing practices, right? There are lots of things, like if we sat here and brainstormed we could probably come up with a dozen different torts that you could charge Purdue Pharma with. But the problem with all of those torts is that they require customer identification. If I wanna say, “hey,” and let’s take this analogy into, let’s say the power tools line. “I use a” – I was gonna say Black & Decker. Yeah, I’ll say Black & Decker, this is a hypothetical! Please! This is not meant to describe actual Black & Decker chainsaws, which I’m sure are perfectly safe.
Thomas: We go Dewalt, we can go Black & Decker, we got all kinds of options.
Andrew: Right. I use a Black & Decker chainsaw and I use it as intended, it throws off the chain and cuts off my arm, and then I sue Black & Decker under products liability, strict products liability, and I say “look, you made this unreasonably dangerous chainsaw and it had a defect, you’re strictly liable for the fact that I’ve lost my arm,” and I then prevail in that lawsuit, but crucial to that is I can only recover against Black & Decker if I can prove that it’s a Black & Decker chainsaw. I couldn’t recover against Black & Decker if I’m using a Dewalt chainsaw, that would make no sense. Now let’s put that in the opioid context. If you take the average person who is buying opioids off the street, some who are using fake prescriptions may know who manufactured the particular drugs that they’ve taken, but the vast majority are going to have problems identifying-
Andrew: -the manufacturer. I’ve talked about this in the past, there are lots of problems with this when you have an industry in which, you know, you have a major player but you have other subsidiary players, so, you know, if you try and aggregate together, quote “the opioid crisis,” then Purdue Pharma’s lawyers, again, they would be incompetent if they didn’t do this, are gonna say “okay, you can’t bring this as a class action because we’re only responsible for people who took Purdue Pharma products,” right? If you didn’t take OxyContin we’re don’t make the other stuff. The way around product ID, one of the ways around product ID is through a public nuisance theory. Because what happens when you have a public nuisance is, you are required to clean up the mess you caused. So, for example, public nuisance theory was used to varying effectiveness to deal with lead pain contamination in inner city, predominantly in poor inner city neighborhoods.
Andrew: And so the remedy that you got was, “okay, get in and remediate. Take the pain off the walls and put a new non-lead based paint on it.” And so you can use a market share allocation to determine how to come clean it up, right? If Sherwin Williams sold 55% of the lead pain that was used in downtown Cleveland in 1950 then they just have to pay 55% of the costs of cleaning it up, right?
Thomas: So it avoids, you don’t have to figure out like “oh this specific house had this so you gotta go to them to get your money,” it’s just like-
Thomas: Alright, we figured out roughly the percentages and that’ll somehow go into some sort of Trust or whatever that’ll pay out all these things.
Andrew: Yup! That’s exactly right. And because, again, you have a product ID problem. Because we know, you know, and the problem with lead paint is that lead paint flakes and children eat the lead paint and it causes brain damage. So we know that that happens, but, you know, I’m living in a house that has 1950’s paint on the wall that’s been sold 4 times, and the original owners are long dead, how do I prove if that’s Sherwin Williams paint or somebody else’s paint? I don’t have any idea. So public nuisance enables you to avoid-
Thomas: You just taste it and find out.
Andrew: Yeah, right! [Laughs]
Thomas: Ooh yum, yeah!
Andrew: Ooh this has a bouquet of Sherwin Williams!
Thomas: Mm, oh my brain! Okay, this is definitely! [Laughs]
Andrew: [Laughs] The back palate is bear and – who knows, right? So this case was a major case because A, it was only brought under the public nuisance theory, and B, Purdue Pharma had settled out. They settled out for $280 million dollars. And again, you might look at that and go, “that seems like they got off pretty cheap,” I would defend that settlement. I would defend the State of Oklahoma’s settlement with Purdue Pharma because their lawyers had to take into account the likelihood that the Judge would reject the theory and they’d get nothing.
Andrew: So you price in the risk of loss when you’re settling. So I would in general defend that settlement, but you are left, then, with a pretty aggressive theory in terms of recovery and not the primary defendant. So Johnson & Johnson’s, pretty much their entire defense in this trial, was A, public nuisance has to cover damage to property and creating the opioid crisis doesn’t fit the definition of public nuisance under Oklahoma law; and B, to the extent that it does, hey, I mean Purdue Pharma, they were the ones that were really awful and we’re not. So that’s a legally defensible argument to make, but they lost and the Judge specifically – and first he went through, and I’ll upload this, it’s 50 Oklahoma Statute Sections 1 and 2 that define nuisance as any endangers the “comfort, repose, health or safety of others” and some other stuff and a public nuisance “Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.” And so the very first thing that the Court said was, “look, we get that public nuisance typically means damage to real property, but our law doesn’t say that, so the opioid crisis very clearly endangers the health or safety of others, so it counts.” And, by the way, even if it requires damage to property, there’s ample evidence in the record that the opioid crisis has damaged an awful lot of property.
Thomas: How’d it damage property?
Andrew: Here’s what the Court says. They say “the State has shown that the Defendants have pervasively, systematically, and substantially used real and personal property, private and public, as well as the public roads, buildings, and the land of the State of Oklahoma in creating the opioid crisis.”
Andrew: So people who are strung out on opioids damage public property.
Andrew: Johnson & Johnson, their salesman used the roads.
Thomas: Well, tenuous, but-
Andrew: Yeah. J & J is going to appeal this verdict. It would not surprise me to see an appellate court, I haven’t exhaustively reviewed Oklahoma law, it would not surprise me to see an appellate court curtail that scope of the public nuisance theory and say “hey, public nuisance theory does not require real property, to the extent that Oklahoma law requires a nexus to real property this is too tenuous.” It will be dicta, but that would still affirm the trial verdict. They would still say that this is endangering the health or safety of a large considerable number of persons. Which, it clearly is. And the Court also rejected the marketing, J & J had argued “hey look, it’s free speech, we describe the”- and the Court said “no, no, no, no, no,” look, commercial marketing activities do not get you a 1st Amendment defense to public nuisance, which I think that will stand on appeal. The reason that this is $572 million dollars is because, as we’ve described, in public nuisance you don’t get damages. You don’t get the recompense for the lives that have been wrecked, you get – and again, remember that usually we’re talking about damage to property. You get “go clean it up,” and so beginning on page 30, there are 64 paragraphs of what “clean it up” that legal term there being “abatement,” what it means in this context. So all of the different programs that Johnson & Johnson is gonna have to fund, you know treatment and other programs to try and do something to stem the tide of the opioid crisis in Oklahoma. So looking at that it is instantly obvious now why Purdue Pharma wants to try and settle all of the claims, now in perpetuity, against the company because Purdue Pharma is not going to survive as a company the next 5 years, as a going concern outside of bankruptcy. The fact that a Court has recognized this theory means that there will be parallel litigation across the country and so we are going to see some kind of major, this is my prediction, that we’re gonna see some kind of major settlement beginning – and again, remember, that was their initial offer was take the company into bankruptcy and take $3 billion dollars of our assets and we’ll divest ourselves of any ownership and running the company and we’ll operate it as a trust to payout for Opioid victims. And, by the way, we’ll have made $10 billion dollars which is 11 figures? I mean, it’s a number you can’t even imagine.
Thomas: Is it all – is all their wealth from this?
Andrew: Yup! Yup.
Thomas: Is there any reasonable claim that, “well this is from our other businesses or something.”
Andrew: Ah, you know, who knows? But I am sure that they have other assets and other investments, but yes. It has come from operating Purdue Pharma. But, you know, we will see ultimately, but you know there’s not a lot more room to maneuver up at the top and I think ultimately the various states are going to accept and structure some kind of settlement that says, “alright, we would love for you to go to jail and be like the Duke brothers at the end of Trading Places and have to be living on the street over the flaming hobo barrel” that doesn’t happen to white collar criminals in this country anymore. So, if you want-
Thomas: Which makes no sense because they’ve killed – would it be safe to say that it’s possible they’ve killed more people than anyone, ever? Like in a criminal-
Andrew: Yes. Certainly than any serial killer, right?
Thomas: Oh yeah, it’s not even close.
Andrew: And the evidence – yeah, we’ve talked about this and we talked about the deliberate and deceptive marketing of OxyContin and sending their sales rep to tell doctors “no, you cannot prescribe higher doses of”-
Thomas: I guess short of, sorry, I’ll correct myself. Short of maybe cigarette companies?
Andrew: I should say “more frequent doses.” – I’m sorry?
Thomas: Yeah, so short of cigarette companies and like the gun lobby, that would be the only other two that-
Andrew: Yeah. Look, this has – and again, this is an area, I mean I said devastated rural America, like you’ve taken some comedic swipes at rural America on this show. You know, we are liberal city dwellers. The opioid crisis in Trump’s America, in red counties in rural areas is devastating on a level that is hard, empathetically, to understand if you live in the city-
Thomas: Well I don’t know that – is it divided that neatly? ‘Cuz I feel like this affected just a lot of people. Like I know somebody that might’ve died from this.
Andrew: Yeah. I don’t mean to suggest it is confined to rural areas.
Andrew: I mean to say that this is not an inner city problem, it’s pervasive throughout the United States.
Thomas: Yeah, this is my next, this is pie in the sky, but is there any chance of getting after gun companies under the same logic? Public nuisance logic? Or has that already been tried?
Andrew: So there would be, except for the law that we talked about on this show-
Thomas: Yeah, that protects them?
Andrew: Passed by Bernie Sanders that grants the gun industry immunity from those suits.
Thomas: Well that’s great. Cool.
Andrew: Yeah. And that was number one on the NRA’s legislative agenda.
Andrew: So, no.
Thomas: It really puts a new light on that debate back in ’16. I’ll admit, I didn’t know it was that big of a difference between the two candidates but it actually was! And it sounds like that law was not well understood by me at least but maybe lots of voters.
Andrew: Well, and again, I’m still losing more patrons for us. It is in illustration of the decorum and gentleness with which Hillary Clinton conducted the 2016 primaries. And I know our Bernie Sanders supporting people who are still mad and angry about it being stolen and Donna Brazile and the DNC and all of that – I am telling you, I am older than you, I’ve seen through this, this is yet another piece of evidence that it was a very, very mild – particularly from Clinton to Sanders, that by the standards of Democratic primary debates it was very, very mild. This was something where she absolutely could have waged an unceasing campaign against Bernie Sanders and burned him to the ground and she didn’t do that. And she didn’t do that because of the principle that we’ve tried to talk about, which is “don’t poison the well.” Right?
Thomas: Yeah, I also think like she felt like she had a handle on the nomination, that’s part of it.
Andrew: Yup, absolutely. Absolutely! Let me know ascribe overly beneficent motives to Hillary Clinton because she went much worse against Barrack Obama in 2008.
Thomas: Yeah, she did.
Thomas: She really did.
Andrew: So absolutely, if she thought she was losing I think she would have poisoned the well and burned it to the ground, I don’t mean to say that. I just mean to say that factually she did not do that.
Andrew: That’s another way of saying “get over it!” [Laughs]
Thomas: [Laughs] Yeah, well we’re running out of time, anything else we needed to cover on the opioid rulings? Or are we looking for anything in the future?
Andrew: Yup, we are looking for a settlement maybe even before this episode comes out.
Thomas: Oh, wow.
Andrew: And that’s why.
Andrew: And, announced. It will take time to negotiate the details, but that’s the model that it will follow and it will follow that because once a Court has said this is a viable theory – and look, different States have different public nuisance laws, right? They’re not uniform. This sits on top of the Common Law definition of public nuisance, but it will be tried in every State. And, again, it will be tried because you’re, you know, talking about if you’re a high end Plaintiff’s contingency firm, getting 33-40% of $572 million dollars is pretty enticing. So there is a free market incentive for lots of lawyers to bring lots of lawsuits and that will happen, so whether this will ultimately be a satisfactory conclusion – I suspect it won’t be. The damage is beyond the capacity of the individual companies to repair, but we are at least moving towards doing something and that’s better than doing nothing.
Supreme Court Decision Math:
Thomas: Alright, well just time for a quick third segment here. What did you want to say about that – I think Saba might have run some numbers for you on the Supreme Court decisions? I don’t know if anyone else did.
Andrew: Yup! So when we were talking about the Sheldon Whitehouse brief in episode 309, we kicked around some numbers that were not otherwise present and our amazing listeners with combinatorics backgrounds were able to run some of these. The having 4 out of 77 cases kind of randomly come up 5-4 meets with that – they did the math and it checks out. So exactly what you would expect in terms of there being a handful of 5-4 decisions that break down on what look like ideological lines, but for non-ideological reasons. The project, since we have so many fantastic math geeks who are also law geeks who listen to this show, the project that I would love to see that I think ought to be doable – you can see breakdowns of Supreme Court alignments at Scotus Blog, and they go back more than a decade. My thesis is this, and it is – the first half is pretty well established in the Law Review literature, that Supreme Court cases throughout our nation’s history have had a reverse normal distribution. That is they have predominately been 9-0 decisions and then kind of tailing off towards the 5-4, so that the average – sorry, not the average, I’m using the math term incorrectly here, but from that a modal standpoint, the mode of Supreme Court decisions has been 9-0. My thesis is that the distribution of Supreme Court decisions can be mathematically shown to have changed demonstrably beginning in the 1980’s and then beginning sharply with the Roberts Court in 2007, and I would love to see our listeners kind of tackle that project and show that we have moved from a Supreme Court that has more 9-0 opinions to a Supreme Court that is pushing decisions towards the 5-4.
Thomas: Yeah, based on this show, for the lifetime of this show, I don’t even remember – maybe we don’t talk about them, maybe they’re basic maybe they’re obvious, but we don’t often talk about 9-0 decisions. I mean, I can remember some 7-2, maybe, but yeah, I certainly-
Andrew: And there have been some that, again, we have not talked about.
Thomas: There have been some, yeah, but like if this show’s any indication there are a lot of not 9-0 decisions lately. [Laughs]
Andrew: So math and law geeks, get on that!
Thomas: So your thesis is it used to be the case that if you were to select a random decision from all of the decisions that have happened, odds were you’d get a 9-0, is that what you’re saying?
Thomas: Whereas now-
Andrew: And that is no longer the case.
Thomas: Not the case. Okay, interesting. It’ll be interesting to see some numbers to back that up! Thanks to all of our listeners who are math geniuses and did this stuff, that’s super cool. We love it. And you can find that in, I think the Facebook group. Hop into the Facebook group if you aren’t there! It’s a fun place. Definitely search it out on Facebook. Okay, it is time to thank our new patrons at patron.com/law!
[Patron Shout Outs]
Thomas: Now it’s time to find out that I definitely got this question wrong! No question about that, here we go T3BE!
Andrew: Okay so this question was about a law student in an apartment, landlord says “hey I want some legal advice” the law student very intelligently and ethically says “dude, I can’t help you with that,” landlord flips out, goes off the deep end, starts harassing him, calling him at home every evening, coming into the apartment when he’s not there without his consent, when he’s off at school, removing the handles from the bathroom faucets and kitchen faucets. The question is can he sue for trespass? You zigged when you wanted to zag, and said, “no, because he has no standing to sue for trespass.” I will tell you, you got the question wrong. That’s not correct. Property – one of the most important concepts about real property is that when you own a piece of real property that is a bundle of rights. So think about it like 15 sticks that are kinda tied together. And you can transfer out property in fee simple, where you give the whole bundle of sticks away to somebody, or you can transfer out just some of the sticks. Leasing a piece of real property to someone else is giving them 1 of the sticks. So they don’t own the property, but they still have possessory rights because they’ve leased the property from you. So you absolutely have standing to sue for trespass because you’re renting a piece of property.
Thomas: Alright, so my plan to pick the worst answer wasn’t a good one?
Andrew: That didn’t, that was not a great plan.
Thomas: I thought I’d just-
Andrew: Where would you have gone? Because we didn’t do – you were so-
Thomas: Yeah. [Sighs] I’m just really beaten down by this Bar-
Thomas: This was a tough questions because I really, I didn’t know. I would say my next best guess or my actual best guess, I mean B is plausible. C and D I can’t find a big, especially since D contains C sort of. I can’t find a big reason for saying you could get injunctive, [Muttering] punitive damages, or you could only get compensatory damages? I guess it would’ve been between D and B and maybe I would’ve thought okay trespass does actually require some damage to property so B? I dunno, it’s hard.
Andrew: Yeah, well, I thought you might say, since you were trying to do the George Costanza, like do the opposite of your instinct –
Thomas: Well that was what I was trying to do! [Laughs]
Andrew: Right! [Laughs] Well the opposite of A, no you have no standing in my view is-
Thomas: It was D.
Andrew: -you can sue for everything which would be D, right?
Thomas: Yeah, sure.
Andrew: Which is indeed the correct answer.
Thomas: Oh, okay.
Andrew: So the difference-
Thomas: Andrew, who am I? I’m the opposite of every Bar Exam student you’ve ever met!
Thomas: My favorite Seinfeld-
Andrew: “Who are you Thomas Smith?”
Thomas: It’s so good.
Andrew: Without a doubt, yeah, that is the best episode ever, I’m in total agreement. So, yeah, no, this is a case where you have standing to sue and then when the question is what can you get in damages-
Thomas: Not only “yes,” but “hell yes” apparently.
Andrew: Yeah! Hell yes, right? [Laughs] Damn hell ass kings, yes! You can get injunctive relief because it’s ongoing.
Andrew: And you can get compensatory damages for the damage to the property and also, as the Bar Exam is saying (I wouldn’t have known this) for emotional distress and for the-
Thomas: Yeah, okay.
Andrew: -removal of the faucet handles. That makes sense. I would not have come up with that answer on my own, I gotta tell you.
Thomas: I like how in my answer I just did there would’ve been the thing I do every time which is between B and D and go with the wrong one?
Thomas: I need to do that and then go with the other one that I don’t [Laughs]
Thomas: Ah, good times!
Andrew: But would have clued me in-
Thomas: Let’s pretend I picked B just ‘cuz I still would’ve gotten it wrong but it would fit with the pattern! [Laughs]
Andrew: Yeah. What would have clued me in in terms of getting the question is once you’ve decided that he does have standing and he’s likely to prevail on the trespass claim, which is correct, then the question is can he get injunctive and punitive damages?
Thomas: Yeah, yeah that’s why I would’ve gone D over C.
Andrew: And the fact pattern clearly supports that, yeah, D over C.
Thomas: Yeah, I had that much.
Thomas: I would’ve gone D over C but I dunno. It’s weird though, ‘cuz he didn’t – yeah, okay. What’s the question I’m remembering? Is there some other tort that’s like trespass but involves property damage?
Andrew: Oh, yeah!
Thomas: There’s something I’m remembering.
Andrew: Look, there are a bunch of torts, that like – I dunno if you’re thinking of sort of the difference between assault and battery, right?
Thomas: No, I swear there was some other bar question we had-
Andrew: Could be
Thomas: Where there was some distinction between – they went on the property but [Sighs]
Thomas: And honestly it sucks because that thing that I’m not remembering, had that not happened I might have probably just gotten this right, but there was something going on!
Thomas: There’s too much bad info in my mind that I couldn’t remember.
Andrew: Look, they do! The Bar does that, right?
Andrew: They load up questions, I mean as you saw, there was – the entirety of the legal advice and, you know, the calling him at home and the harassment, that has nothing to do with the question. That’s all just there to distract you. The fundamental question is do you have standing to sue somebody else for trespass when you’re renting the place and they do no damage to your personal property? And the answer to that is “yes.” So.
Thomas: Yeah, no, no. That was all me! That wasn’t even close. Alright, I think we can officially say this is rock bottom. Maybe, I mean it can always get worse, I guess, I can get another one wrong.
Andrew: [Laughs] In the opioid episode I’m glad that you’ve admitted you’ve hit rock bottom!
Thomas: I need to cold turkey which is not as delicious as it sounds-
Thomas: -and actually start getting some questions right because this has been embarrassing. Okay, well, let’s hop in our time machine and figure out who has not hit rock bottom like I have, clearly, and who’s our big winner this week?
Andrew: Well, Thomas, not to pour salt into the wound or anything, but this week’s winner is Kaylie on Twitter, who writes: “For this weeks #T3BE I’m going with D solely because it’s the most wrong Thomas can possibly be.” I’m sorry, and I’m sure Kaylie is sorry, but that was dead on and pretty funny and everyone should give Kaylie a follow, that is @QuirkOfArtXD on Twitter, and congratulations Kaylie on being this week’s T3BE winner!
Thomas: Alright, thanks so much for listening! I hope you’re enjoying Law’d Awful Movies, the Q&A was so much fun, all that good stuff! Be a patron, it’s worthwhile and we will see you on Friday!
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