Chasing the Fruits of Misery: Confronting the Historical Relationships Between Opioid Revenues, Offshore Financial Centers, and International Regulatory Networks

Wilks, Stephen C | January 1, 2020

As the opioid crisis continues to claim lives throughout the U.S., tort litigants have faced challenges pursuing Purdue Pharma – one of the drug makers responsible for aggressively promoting OxyContin while downplaying the drug’s addictive effects. Much of this litigation posture sought to recover billions in public health costs incurred responding to the crisis at federal, state and local levels. As the plaintiff class grew, Purdue Pharma petitioned for bankruptcy protection, at which point auditors discovered the entity’s beneficial owners had caused it to wire billions in opioid profits into offshore accounts – placing them beyond the reach of litigants. These transactions reveal the limits of domestic financial reporting regulations and international regulatory bodies, like the Financial Action Task Force (FATF), whose frameworks narrowly focus on intercepting proceeds of terrorism and money laundering. Existing scholarship has not considered why the offshoring of opioid revenues remains legal in a regulatory landscape conceived to protect the common good. The soft-law system of norm-building responsible for building these frameworks would best fulfill its purpose by broadening its reach to include a wider sweep of capital mobility. The opioid crisis offers a useful context for exploring this claim. By devising a class of activity – described below as the Public Interest Transaction (PIT) – modified FATF rules would offer a principles-based alternative to the existing system’s language and provide a pathway for intercepting a wider variety of capital mobility with an emphasis on profits derived from “high casualty” crises such as the opioid crises. By precluding language that targets other forms of publicly harmful transactions, existing norms will continue to undermine the public good in a transnational banking environment lacking more principles-based approaches to financial regulation. The timing and context of Purdue Pharma’s wire transfers offer a useful laboratory for making these arguments.