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Dear USET/USET SPF Family,
Earlier this year, Johnson & Johnson and the three largest distributors of prescription opioids—Cardinal Health, AmerisourceBergen, and McKesson Corp—announced settlements with Tribal Nations and Tribal health organizations totaling approximately $565 million (see USET SPF alert). The settlements arise from the ongoing nationwide litigation against manufacturers, distributors, and retail dispensers of prescription opioids for their role in the national opioid crisis. All Tribal Nations are eligible to participate in the settlements, regardless of whether or not they are participating in the litigation.
Last week, Special Master David Cohen and the Honorable Judge Layn Phillips released the proposed process for determining the inter-Tribal allocation formula for the distribution of settlement funds. Their memorandum to Tribal Nations and counsel can be viewed here.
Special Master Cohen and Judge Phillips are starting from the inter-Tribal allocation formula approved by two federal bankruptcy courts in separate proceedings involving Purdue Pharma, the manufacturer of Oxycontin, and Mallinckrodt plc, a major manufacturer of generic opioids. That formula weighs the following six factors: (1) the morphine milligram equivalents imputed to each Tribal Nation for the years 2006-2014 (in other words, the volume of prescription opioids shipped to each Tribal Nation’s geographic area for that period); (2) drug and prescription opioid overdose rates imputed to each Tribal Nation from county and state data for the years 2003-2017; (3) Indian Health Service user population for each Tribal Nation, based on 2018 data; (4) citizenship population for each Tribal Nation, based on the CARES Act population list and other sources (as verified or updated by Tribal Nations that participated in the verification process); (5) relative poverty rates imputed to each Tribal Nation based on Census data for 2018; and (6) the relative cost of living imputed to each Tribal Nation, based on the C2ER Cost of Living Index for Health Care expenses for 2020.
Special Master Cohen and Judge Phillips are soliciting comments on the use of these factors, and are receiving suggestions regarding additional or alternative metrics or allocation formulas. Tribal Nations that wish to comment must submit their opening briefs on allocation by October 14, 2022. Tribal Nations may submit an additional brief responding to other Tribal Nations’ opening submissions by November 4, 2022.
Additional information about the proposed formula and its development, as well as all pertinent deadlines, can be found in the attached memorandum. For more about these and other tribal opioid settlements, visit www.tribalopioidsettlements.com. Additional details regarding the Purdue allocation formula can be found on the website at: https://www.tribalopioidsettlements.com/Documents/Janssen/Purdue_Allocation.pdf.
For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, at lmalerba@usetinc.org.
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