The Harrington v. Purdue Pharma case highlights how bankruptcy courts can be used to circumvent traditional tort litigation, undermining public accountability and plaintiffs’ rights in mass tort cases.

The opioid crisis is among the most pressing health emergencies in the United States, claiming more than 187 lives daily. The roots of this catastrophe run deep, involving various players—from profit-driven pharmaceutical companies to aggressive sales representatives and even individual physicians.

At the heart of this crisis is Purdue Pharma, notorious for its role in the widespread promotion of OxyContin, a powerful opioid approved by the Food and Drug Administration (FDA) in the 1990s. Purdue’s misleading marketing of OxyContin, claiming it was less addictive than other opioids, played a pivotal role in the first wave of opioid-related deaths, a fact that underscores a broader systemic failure in regulation.

Purdue’s actions and the resulting devastation have led to mass litigation, with costs running into trillions. In September 2019, Purdue reached a settlement agreement in principle with 24 state attorneys general, officials from five U.S. territories, the Plaintiffs’ Executive Committee in the multidistrict litigation (MDL), and co-lead counsel in the MDL. This settlement prompted Purdue to file for Chapter 11 bankruptcy, pledging $10 billion “for the benefit of the American public.” Judge Robert Drain, overseeing the bankruptcy, shielded Purdue from lawsuits brought by entities not involved in the settlement.

Bankruptcy is often seen as a viable response to public crises involving mass torts, but it’s rarely a complete escape from litigation. In the case of Purdue, however, bankruptcy was intentionally used to sidestep traditional public litigation.

The primary function of the bankruptcy court is to redistribute assets efficiently and provide closure for the defendant. Unlike tort law, it does not aim to reform policies. Instead, bankruptcy courts focus on examining the debtor’s financial health. This shifts power away from plaintiffs, as the defendant can choose the forum, centralize claims, halt tort proceedings, and even circumvent state statutes of limitations.

Public litigation, by contrast, serves broader purposes: it deters wrongdoing, compensates victims, values and tests claims, and generates public goods by making information available to regulators. It also strengthens democracy by encouraging public participation in trials. Bankruptcy, however, does little to incorporate these values. The assumption is that judges may refer liability-related factual discovery to state and district courts, but the emphasis on cost-saving drives many companies toward bankruptcy in the first place.

When a defendant files for Chapter 11, pending tort claims are treated as debts to be paid. In such cases, plaintiffs may receive compensation without the defendant ever being found liable. This approach leads to outcomes that conflict with traditional tort litigation principles—low-value claims may end up overcompensated as long as the bankruptcy plan garners enough votes. In effect, bankruptcy silences claimants.

Civil procedure traditionally centers on protecting the due process rights of defendants. Yet innovations like MDL and bankruptcy raise critical questions about plaintiffs’ rights, particularly in cases where plaintiffs are forced into other courts and lose the ability to appoint counsel that represents their interests.

The recent U.S. Supreme Court decision to block Purdue Pharma’s bankruptcy settlement does not provide a complete solution. The issue at hand goes beyond whether Chapter 11 allows for nonconsensual, nondebtor releases, as many have debated. It also raises deeper concerns about how much procedural innovation we are willing to tolerate in pursuit of global settlements—at the expense of traditional litigation values.

The evolving trend toward private settlement, MDL, and now bankruptcy highlights a concerning shift: these innovations focus primarily on attorneys and the judiciary, ignoring the tension between public litigation values and broader public participation. This growing conversation about procedural innovation threatens to blur the boundaries of federalism, raising fundamental questions about the purpose of public litigation and how it should be defended.