What Shall We Do With A Drunken Sailor? Incapacitate the Opioid Manufacturers

A popular song in my college singing group decades ago was the sea shanty, “What Shall We Do With the Drunken Sailor?” The answer was to isolate the sailor for awhile: “put him in a long boat until he’s sober.”  It’s something worth considering for manufacturers of opioids.  If

you don’t like musical analogies, here’s one from sports: If a football player intentionally targets a defenseless opponent, they get kicked out of the game.

Removing the company from profiting from their opioid sales might be worth keeping in mind now that Purdue Pharmaceutical has threatened to file for bankruptcy in light of the pending lawsuits against it.  The idea, of course, is to shield the company from paying judgments but continue to do business.

Pause on that for a moment.

The glib characterization of corporations is that they are interested only in profits.  Actually, managers (including executives) are to carry out the lawful directives of shareholders.  Profits typically are one of those directives, especially in a publicly held company where the only common denominator of shareholders’ interests is profit.  But in a corporation with just a few shareholders – like a family owned business – noneconomic directives can be one of the objectives of the company because the smaller number of shareholders can agree to accomplish other aims. One might think that a family business like Purdue might have objectives beyond profit.  To their credit, they have a remarkable philanthropic commitment, yet one would also think that a company engaged in treating patient health and well-being might also highly prioritize those ends as well.  A bankruptcy filing to avoid liability to those injured by their drugs seems at odds with such an objective; in fact, it seems more akin to a company drunk on profits.

Several recent court filings allege that some pharmaceutical companies intentionally misled prescribers of the drugs to inaccurately claim them to be safe, that they targeted doctors who were likely to overprescribe the medications, and that they intentionally exploited communities prone to misusing the drug.  To date, the companies have fared reasonably well in litigation, but that may change with new lawsuits brought by public officials on the grounds of public nuisance and deceptive marketing theories.  One interesting aspect of these approaches is that public nuisance has always been a legal theory that more fluidly moves between criminal and civil law remedies.  It may be a reach for a civil case, but perhaps the little used remedy of corporate incapacitation could be utilized by the court’s injunctive power to kick companies found to have intentionally and deceptively marketing opioids out of business for awhile.

As detailed in an excellent law review article, W. Robert Thomas demonstrates that to punish criminal conduct, courts can lock a company out of its business.  Extending Professor Thomas’ possible variations, two may have particular benefits: exclude them from their business practice for a period of time and thereafter require companies to stop working with other opioid-related companies also found to have also intentionally engaged in deceptive marketing practices.  Isolate them from conspirators.  If they want to stay in business, make them work with companies free of such a record.

Make no mistake, companies still make a lot of money from opioid sales.  Some of those profits may be legitimate and while some companies may have been involved in deceptive marketing, not all of them might have been.  Rather than scapegoating all companies involved in opioid sales, it’s worth differentiating liability according the degree of intentionality any given company has demonstrated as well as their efforts to make amends.  And indeed, some – including Purdue – have made some efforts by manufacturing medications that thwart addiction. (Some argue that, after making money by getting people addicted to a drug, a company shouldn’t make money from a drug to get people off the drug, but I’ll still give some credit to the latter effort.)

So maybe, in addition to various fines imposed on companies and new pharmacological efforts to wean addicts from opioids, we should ban them from being in the industry for a period of time and then make them work with companies who are more ethical.  Let the companies sober up from their intoxication with profits by putting them in a long boat until they’re sober.  Seemed to work for the drunken sailor.