5 State AGs Oppose Bankruptcy Stay in Their Opioid Cases Against Insys
A bankruptcy judge in Delaware is set to hear arguments Tuesday over whether to halt 166 government lawsuits against Insys Therapeutics Inc. over the opioid crisis.
July 01, 2019 at 07:35 PM
4 minute read
The original version of this story was published on Delaware Law Weekly
A bankruptcy judge will hear arguments Tuesday over whether to halt hundreds of lawsuits brought against Insys Therapeutics Inc. over the opioid crisis—a move opposed by attorneys general in five states.
Insys wants to halt 166 government lawsuits as part of a complaint for injunctive relief and a motion for preliminary injunction, both filed June 10, the date of its Chapter 11 bankruptcy filing. If a bankruptcy judge approves the motions, attorneys general in 10 states, including Florida, New Jersey and New York, would have their claims against Insys stayed.
Lawyers for the states of Maryland and Minnesota, which have administrative trials scheduled to begin in August and September, opposed the move last week, citing the “police power” exception to a bankruptcy's automatic stay on legal matters. New York, New Jersey and Arizona have joined them.
“Criminal enterprises like the debtors should not be permitted to shield themselves from the consequences of their misconduct by running to bankruptcy court and obtaining the equivalent of a stay that allows them to evade justice,” wrote lawyers for attorneys general in Minnesota and Maryland.
In contrast, Florida Attorney General Ashley Moody and lead plaintiffs attorneys in the multidistrict litigation, both of which have sued several opioid companies, agreed to halt claims against Insys in stipulations filed last week. The multidistrict litigation has two cases going to trial Oct. 21.
Insys is one of several manufacturers of opioids, a class of drugs that includes prescription painkillers tied to increasing deaths and addictions nationwide. Several Insys executives, including founder John Kapoor, have been convicted of racketeering and other crimes related to the opioid crisis.
On June 5, Insys reached a $225 million agreement with the U.S. Justice Department that requires the company to stop marketing and promoting its opioid painkiller Subsys within 90 days.
“A stay of the government actions is essential to realizing the debtors' primary objective in these bankruptcy cases: maximizing the value of the estates and enabling the equitable and efficient distribution of proceeds to creditors,” Insys attorney Richard Heath, a director at Richards, Layton & Finger in Wilmington, wrote in the preliminary injunction motion. “It is imperative for the debtors and their advisors to be afforded the ability to focus on these essential bankruptcy processes without the competing drain of their time and attention caused by the government actions.”
Insys got some support from the bankruptcy's unsecured creditors committee, whose members are mostly personal injury plaintiffs suing over opioids.
“The debtors' cash position is small and projected to shrink over the coming weeks,” wrote Erin Fay, a director at Bayard in Wilmington. “To waste limited estate resources paying litigators with respect to cases that almost certainly will not be resolved before Insys ceases operations simply makes no sense.”
Fay did not respond to a request for comment.
In court filings last week, attorneys general in the five states, some of which have sued only Insys, opposed the move. Minnesota Assistant Attorney General Eric Maloney declined to comment, and Ryan Bounds, a staff attorney at the Maryland attorney general's office, did not respond to a request for comment at the time of publication.
Moody, in Florida, reached a stipulation that the state's claims against Insys should be “abated in their entirety” for an “indefinite duration.” In exchange, according to the June 25 stipulation, Insys agreed to cease marketing and promoting Subsys in Florida within 90 days of the DOJ deal, as well as stop “all business activities related to opioids in the states” within 12 months.
Russell Kent, Florida's special counsel for litigation, did not respond to a request for comment.
The injunction is one of several issues going before U.S. Bankruptcy Judge Kevin Gross this month. On July 8, the judge will hear additional arguments on a related motion Insys filed to set up a plan that would estimate the total value of about 1,000 lawsuits pending against it. Six states—Florida, Kentucky, New York, New Jersey, Rhode Island and Washington—have opposed that plan, as have a handful of cities and states.
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