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Speaker 1: There's no end in sight to the opioid crisis. In fact,

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Speaker 1: there's been a startling increase in the number of opioid overdoses.

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Speaker 1: Here's Robert Califf during his hearing to become the Commissioner

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Speaker 1: of the f D. A opioid crisis and the addiction

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Speaker 1: crisis overall now is synthetic opioids and stimulants on the

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Speaker 1: streets of America. It's got wrenching for American families and

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Speaker 1: I think all of us know someone who's been affected

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Speaker 1: by it, and no group has been affected more than

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Speaker 1: Native Americans. But now a historic settlement, drug maker Johnson

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Speaker 1: and Johnson and the three largest US drug distributors have

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Speaker 1: agreed to pay five hundred ninety million dollars to four

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Speaker 1: hundred Native American tribes to settle lawsuits over the toll

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Speaker 1: of opioids. Joining me is healthcare attorney Harry Nelson, a

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Speaker 1: partner at Nelson Hardeman. Harry, what's the significance of this settlement?

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Speaker 1: Native American tribes were certainly the most hard hit group

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Speaker 1: in America from the standpoint of opioid harm. The numbers

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Speaker 1: of both overdose deaths and addiction rates and all kinds

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Speaker 1: of opioid suffering were without question worse in Native Americans

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Speaker 1: than probably any other demographic group. The tobacco industry deals

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Speaker 1: in the nineties left out Native Americans. So is this

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Speaker 1: a step forward an acknowledgement Native American tribes now have

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Speaker 1: a seat at the table. I think that's a good point.

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Speaker 1: In many ways, the opioid litigation had a lot of

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Speaker 1: lessons learned from previous mass court cases and particularly from

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Speaker 1: the too big tobacco cases. So I do think that

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Speaker 1: the fact that Native American tribes participated so broadly in

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Speaker 1: the multi district litigation was a reflection that they sort

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Speaker 1: of missed out on benefiting from the large chaoffs that

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Speaker 1: came through the tobacco litigation. So I do think it

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Speaker 1: was a tape where this community that is always hard

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Speaker 1: hit on, you know, whatever social ill you want to

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Speaker 1: talk about in America, was able to participate. I suppose

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Speaker 1: it's a positive development and progress of sometimes. W Ron Allen,

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Speaker 1: who's the chairman of a tribe in Washington State, called

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Speaker 1: it a big deal for the tribes to reach a settlement,

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Speaker 1: but said he doesn't expect his tribe of about five

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Speaker 1: hundred fifty people to get much help from the settlement.

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Speaker 1: Does that number five hundred and ninety million plus the

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Speaker 1: seventy five million reached in a separate settlement with the

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Speaker 1: Cherokee Nation, does that seem like fair compensation? Personally, I

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Speaker 1: think there's a high degree of arbitrary nous about what

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Speaker 1: the numbers are here. So on the one hand, it

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Speaker 1: sounds like a large number. On the other hand, when

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Speaker 1: you actually start measuring all of the loss of life,

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Speaker 1: the impact on families, on children growing up without parents,

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Speaker 1: all the law enforcement and healthcare services, it's like just

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Speaker 1: to drop in the bucket. So my guess is that

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Speaker 1: Judge Polster, you know, in getting both sides the table

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Speaker 1: had some realism about what was possible, not at all

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Speaker 1: based on the needs here or what the actual harm was,

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Speaker 1: but based on what the available resources from the total pool,

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Speaker 1: based on past settlements and the financial information provided by

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Speaker 1: the defendants. The deal will only take effect when of

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Speaker 1: the tribes with lawsuits against the companies agree to the settlement.

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Speaker 1: And this deal was negotiated by a group that represents

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Speaker 1: about so I'm wondering if it might pose a problem

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Speaker 1: to get that. My belief is that this settlement is,

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Speaker 1: you know, again in the scope of what was possible

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Speaker 1: was a reasonable outcome, and that it's going to take

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Speaker 1: a few more who knows, weeks, months of conversation with

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Speaker 1: some of the tribes that did not participate, but that

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Speaker 1: eventually they will come around. I think settling lawsuits, it's

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Speaker 1: much easier to start lawsuits than everybody has big dreams

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Speaker 1: of what's going to come with them, and settling laws

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Speaker 1: tricky because it forces everybody to compromise and figure out

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Speaker 1: what they can live with. My suspicion is that we

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Speaker 1: will see the necessary additional increment of tribes signing on

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Speaker 1: through some difficult conversations and coming to terms with the

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Speaker 1: fact that this is the best deal that's that's available.

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Speaker 1: So this is a settlement with J and J and

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Speaker 1: the three distributors. J and J is a manufacturer. What

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Speaker 1: were the distributors accused of? You know, the distributors are

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Speaker 1: really the middlemen of the industry. The drugs are manufactured

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Speaker 1: by companies like Perdue, and then they go to the

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Speaker 1: distributors under federal law and under the d e A structure,

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Speaker 1: and the distributors are the people who receive them from

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Speaker 1: the manufacturers and then ship them out mostly to pharmacies

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Speaker 1: and in some cases to physicians who are dispensing directly.

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Speaker 1: So you know, the real charge against the distributors was

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Speaker 1: that they turned a blind eye to large suspicious order

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Speaker 1: volume and they made a lot of money filling orders,

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Speaker 1: mostly from pharmacies, without really checking to see if the

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Speaker 1: orders were legitimate. Honestly, I think it's a complicated picture

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Speaker 1: about what. You know, the rules changed on the distributors.

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Speaker 1: So on the one hand, there is a case to

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Speaker 1: be made that they're not nearly in the same position

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Speaker 1: of culpability as manufacturers. Right, they weren't the ones who

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Speaker 1: marketed these drugs. They didn't make claims to the public.

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Speaker 1: They were just kind of a link in the chain.

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Speaker 1: On the other hand, they did make millions and millions

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Speaker 1: of dollars from the excessive dispensation of these drugs. So

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Speaker 1: you know, there's two sides of the story about how

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Speaker 1: bad the distributors really were. You really need a map

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Speaker 1: to figure out the opioid litigation. There are so many

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Speaker 1: pieces to it. So the tribes still have lawsuits pending

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Speaker 1: against pharmacy operators, including Walmart, CVS, and Walgreens. So you know,

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Speaker 1: pharmacies are in a somewhat related position to distributors in

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Speaker 1: the sense that they aren't the ones who made marketing

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Speaker 1: claim they were yet another link in the chain of

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Speaker 1: how the drugs got out there. By the way, many

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Speaker 1: many small pharmacies were omitted just because they're either not

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Speaker 1: in business anymore or the plaine employers didn't view them

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Speaker 1: as having the kind of resources that would be necessary

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Speaker 1: to settle. So in many ways, Walgreens and TVs are

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Speaker 1: sort of bearing the front of the anger and the

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Speaker 1: claims against pharmacies. So the pharmacies have been fighting hard.

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Speaker 1: Pharmacies were a late entrance into this case, you know,

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Speaker 1: years later than claims against drug manufacturers and distributors, and

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Speaker 1: I think it's very complicated. The reality is, if you

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Speaker 1: went back in time fifteen twenty years ago, nobody believed

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Speaker 1: that pharmacies had an obligation to police doctors. The claim

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Speaker 1: against distributors is that they didn't adequately police pharmacies. To

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Speaker 1: claim against pharmacies is that they didn't adequately police doctors.

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Speaker 1: And I think it speaks to a broken system when

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Speaker 1: everybody is supposed to be suspicious of the behavior of

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Speaker 1: the next level down, but you know everyone's got to

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Speaker 1: be looking over their shoulder. It just speaks to a

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Speaker 1: much bigger problem around pain prescribing and dispensation. And lawyers

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Speaker 1: for the Cherokee Nation are preparing for what maybe the

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Speaker 1: first trial of Native Americans claims against the retailers in

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Speaker 1: three and the last time the Cherokee Nations settled on

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Speaker 1: the eve of trial, so there's plenty of time for

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Speaker 1: this to be settled as well. Right. It's a very

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Speaker 1: high stick kind of negotiations going on because there definitely

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Speaker 1: are voices within the pharmacy retailers to fight and to

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Speaker 1: show that they really didn't do anything terrible here, that

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Speaker 1: there wasn't the kind of guilt that existed, for example,

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Speaker 1: with Perdue Pharma, and yet there's a massive liability. Right.

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Speaker 1: We did see the Oklahoma Johnson and Johnson decisions based

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Speaker 1: on a kind of public nuisance theory, you know, just

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Speaker 1: basically saying we don't know exactly what wrong was done,

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Speaker 1: but there was just a lot of harm here and

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Speaker 1: we're gonna hold you responsible. We saw that the court

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Speaker 1: was not receptive to that. My suspicion is that Walgreen

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Speaker 1: TVs are hanging tough because they feel like they have

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Speaker 1: good defenses here, But I still think settlement is always

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Speaker 1: the safest course. It gives everybody a guarantee about what

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Speaker 1: the outcome is and make sure that it's one that

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Speaker 1: they can live with. So I feel expect settlement, but

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Speaker 1: be a little ways off yet. So speaking about settlement,

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Speaker 1: let's tell about the global settlement of the same four

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Speaker 1: companies worth twenty six billion dollars with state and local

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Speaker 1: governments across the country. Where does that stand. A lot

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Speaker 1: of holding out right now on you know, Perdue pharma,

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Speaker 1: on the individual liability of the Stackler family. So I

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Speaker 1: think we're gonna be waiting to see a Federal Palace

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Speaker 1: decision to see whether whether the Sackler family is going

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Speaker 1: to be required to participate, whether they're going to be

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Speaker 1: given immunity, And I think that that decision is blowing

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Speaker 1: things down in terms of the ability to negotiate and

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Speaker 1: get a global resolution here. The global resolution isn't with Perdue,

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Speaker 1: is it. No? No, it's with everybody. But since the

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Speaker 1: Sackler family funds are a significant part, potentially you know,

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Speaker 1: billions and billions of more money that was taken out

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Speaker 1: of the country. Um, the my understanding is that that

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Speaker 1: that that that that that a number of the parties

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Speaker 1: are waiting to see what happened for the large billion

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Speaker 1: dollars settlement goes forward, and just remind us about what

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Speaker 1: happened with Purdue and the family and the bankruptcy. Yeah,

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Speaker 1: the family, Uh, you know, between something like two thousand

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Speaker 1: and nine, two thousand eight or two thousand and two

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Speaker 1: thousand seventeen, the family took between ten and eleven billion

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Speaker 1: dollars out of the country. Uh, put it into offshore

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Speaker 1: accounts and other financial vehicles where they believed they would

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Speaker 1: be protected because they were already at that point gearing up,

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Speaker 1: they were anticipating litigation. Perdue had already reached the settlement

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Speaker 1: for its behavior even though it was continuing. So there's

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Speaker 1: a lot of money that the Sackler's, you know, we're

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Speaker 1: able to essentially take off and protect and make them

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Speaker 1: one of the wealthiest families in America. And uh, we

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Speaker 1: still have a serious effort underway to squad effect in

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Speaker 1: the bankruptcy proceeding. The family basically took an all or

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Speaker 1: nothing position and said they would not settle, which would

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Speaker 1: mean there would be no really no money coming from

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Speaker 1: Purduke because they had not left any money in the

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Speaker 1: company unless the entire family was given immu city and

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Speaker 1: so that was what the bankruptcy judge, Judge Drain negotiated

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Speaker 1: UM and not unhappily. The judge was very outspoken that

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Speaker 1: he didn't think it was it was fair, but it

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Speaker 1: was basically what was possible. So the family hadn't successfully

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Speaker 1: negotiated immunity and then UM on appeal it was reversed

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Speaker 1: as as being an excessive decision outside of the power

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Speaker 1: of the bankruptcy court, and that the family should still

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Speaker 1: face immunity, that they couldn't be protected in the way

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Speaker 1: that the settlement had tried to do. So it's a

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Speaker 1: very very interesting question, you know. I think in some

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Speaker 1: ways maybe the most interesting question about the whole opioid

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Speaker 1: litigation is how much this family can protect itself when

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Speaker 1: it made so much money um and really was in

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Speaker 1: many ways the catalyst for this terrible crisis. Would you

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Speaker 1: compare the opioid litigation to the Depaco litigation or is

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Speaker 1: it different? You know, I think there is a lot

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Speaker 1: of similarity in the sense that these were products that

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Speaker 1: had you know, significant social harm associated with them. I mean,

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Speaker 1: the difference opioids I think are more complicated. Right, tobacco,

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Speaker 1: There's nobody who claims that tobacco has health benefits or

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Speaker 1: that it's in the necessary thing. The reality is that

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Speaker 1: it's a vice that's popular with millions and millions of Americans,

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Speaker 1: and and it was much I think it was much

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Speaker 1: easier to just put tough restrictions on tobacco. Opioids are

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Speaker 1: more complicated because there are millions of people out there

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Speaker 1: who are suffering in pain, who need these, and so

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Speaker 1: I think it's a much murkier picture of where doctors

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Speaker 1: went wrong, of where pharmacies and distributors went wrong. You know,

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Speaker 1: it's easy to point fingers that companies like Perdue because

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Speaker 1: they were so grossly you know, uh, their behavior was

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Speaker 1: so troubling in terms of how they dismissed rising death poles.

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Speaker 1: But I think opioids are more complicated. And on the

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Speaker 1: settlement side, the tobacco settlements are widely viewed as a

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Speaker 1: disaster in the sense that almost none of the money

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Speaker 1: actually went into anti tobacco programs. Instead, state government used

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Speaker 1: it to fill their budget hole. I think like something

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Speaker 1: like three percent of the total tobacco settlements actually went

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Speaker 1: into anti tobacco or tobacco health related program. My hope

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Speaker 1: is that the opioid settlement will actually go towards improving

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Speaker 1: public health and dealing with a much much more complicated

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Speaker 1: issue of how we balance the need for the drugs

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Speaker 1: against the dangers that they posed. Thanks Harry, that's Harry

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Speaker 1: Nelson of Nelson Hardeman, Battle Chested Leader one or nine

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Speaker 1: community is in this room. We are the commanding. The

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Speaker 1: Washington football team announced its new name this week. It

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Speaker 1: a video explaining the difficulties in coming up with a

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Speaker 1: Sports franchises resort to extreme legal maneuvers to protect a

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Speaker 1: new name and brand. Joining me to discuss the process

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Speaker 1: is Susan Decker, Bloomberg Patents reporter. So Sue tell us

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Speaker 1: about some of the legal tactics the teams used to

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Speaker 1: prevent the name from getting out ahead of time. They're

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Speaker 1: going to file their trademark application in another country. They're

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Speaker 1: going to file in Trinidad and Tobago and Mauritius, like

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Speaker 1: these island nations that don't have a whole lot of

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Speaker 1: internet access and don't have a lot of public access

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Speaker 1: and have policies that don't allow them to be public.

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Speaker 1: This way you get the protection because the trademark application

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Speaker 1: is good from the date of the first application, but

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Speaker 1: you don't actually file the application in this country that

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Speaker 1: has public access like the US, for six months. You

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Speaker 1: have that six months lead time so that you can

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Speaker 1: get everything together. You have the protection, but you can

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Speaker 1: get all of your splashing mark marketing stuff all together

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Speaker 1: and then announce it. And when you announce it, you're

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Speaker 1: still protected and you're not going to have to worry

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Speaker 1: about someone running to the trademark office to file an

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Speaker 1: application on the name that you've chosen. And what are

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Speaker 1: the favorite countries to file in right now? It's Tanka

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Speaker 1: and Mauritius. It used to be a lot of the

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Speaker 1: Caribbean nations were very popular. Jamaica used to be number one,

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Speaker 1: and then they upgraded their system so people stop filing

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Speaker 1: in Jamaica, se Tonga Mauritius both have a policy that

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Speaker 1: if you want to look at the applications, you have

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Speaker 1: to physically go there and look at the applications and tongue.

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Speaker 1: As a matter of fact, you can only request that

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Speaker 1: the employee of the trademark office do the searching for you,

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Speaker 1: and they may or may not be willing to do that.

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Speaker 1: And what they do allow the public to see isn't

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Speaker 1: available for weeks and sometimes months. So you can try

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Speaker 1: to hire somebody in Mauritius to scope out the trademark office,

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Speaker 1: but they're not going to be all that successful. And

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Speaker 1: the Cleveland Major League Baseball club filed in Mauritius. They

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Speaker 1: filed in Mauritius. Yes, and they filed into their own

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Speaker 1: name under the Cleveland Indians name, which was their former team.

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Speaker 1: Some companies, like Apple, what they do is they'll set

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Speaker 1: up a shell company and they'll set up a company

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Speaker 1: that has some innocuous name like I T Management, and

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Speaker 1: they'll file the application. In Apple's case, they filed it

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Speaker 1: and turn it out tobacco for the iPad. They filed

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Speaker 1: it under this innocuous sounding name in this remote trademark

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Speaker 1: office and then when they were ready to announce the product,

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Speaker 1: they filed their application in the US and then they

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Speaker 1: quickly had that company subsumed into the Apple Company so

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Speaker 1: that there was no concern about ownership rights. Does that

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Speaker 1: give an added layer of protection? Yeah. If you're going

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Speaker 1: to turn it out in Tobago to look for trademark applications,

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Speaker 1: you know you're going to look for something by Apple,

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Speaker 1: so you're not gonna be able to find it. It's

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Speaker 1: going to be much more difficult to find. You're going

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Speaker 1: to have to guess what the name is and then

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Speaker 1: try and put them together. And there's a kind of

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Speaker 1: a little marketplace of company sort of individuals that are

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Speaker 1: filing trademark applications on names that they think somebody will

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Speaker 1: try to use. There called trademark squatters, and what they

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Speaker 1: do is they file save for instance, you're going to

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Speaker 1: set up a company called Grasso Inc. And you're going

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Speaker 1: to be a big splash company. I would go and

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Speaker 1: I would file maybe grass Ola, and I'm going to

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Speaker 1: file a trademark application for grassol a. But that's the

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Speaker 1: name you want to use, So you're gonna pay me

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Speaker 1: to turn over those rights because I've filed the application,

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Speaker 1: and what kind of trademark searches do you have to

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Speaker 1: do before you decide on a name. You need to

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Speaker 1: get the trademark on all the merchandise, on the video rights,

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Speaker 1: on the TV rights, you need to get the websites,

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Speaker 1: you need to get the social media accounts, and you

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Speaker 1: need to make sure that you can get the same

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Speaker 1: name for all of these things. And in trademarks in particular,

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Speaker 1: the trademark is only for a specific type of good.

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Speaker 1: That's why, for instance, you can have Delta Faucets and

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Speaker 1: Delta Airlines because their different companies in different areas, but

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Speaker 1: they still have the Delta name. So when you have

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Speaker 1: the Washington football team or any football team, you have

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Speaker 1: to have that name that can be used for cups

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Speaker 1: and hats and clothing and software and products that football

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Speaker 1: teams or any sports teams used for branding purposes. And

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Speaker 1: you see that they just had a minefield that they

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Speaker 1: had to go through. They explain that minefield in the

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Speaker 1: video and they have their chief legal officer, Damon Jones,

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Speaker 1: explaining why they couldn't use a fan favorite name, which

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Speaker 1: was Wolves or Red Wolves. Yeah, it is a minefield.

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Speaker 1: There's variations of the name wolves for a lot of products,

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Speaker 1: and you want to make sure that you have those

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Speaker 1: clear rights. Trademarker is something used by the brand owner

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Speaker 1: to protect their property. Once the trademark is registered, do

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Speaker 1: you have a lot of legal rights to shut off

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Speaker 1: counterfeiters and you want to make sure you have that registration.

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Speaker 1: You can get a common law trademark. Anybody can have that,

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Speaker 1: there's millions of them. But you want to have that

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Speaker 1: registered trademark, and the Patent Trademark Office will only give

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Speaker 1: it if it's unique and only for that good. So

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Speaker 1: you want to have the trademark registered for anything you're

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Speaker 1: going to sell. And you know there's only so many

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Speaker 1: words in the English language that would attract football players. Apparently, well,

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Speaker 1: they want a lot for this name. When they talk

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Speaker 1: about what they want for this name, it's it's a

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Speaker 1: lot to go into a few words. So now I

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Speaker 1: was really interested. You wrote that well known companies are

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Speaker 1: used to having their trademark filing scrutinized for insight into

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Speaker 1: their future plans, like Walmart and Pepsi. Yes, so in

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Speaker 1: the cases of the recent Walmart trademark applications, and that's

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Speaker 1: an expansion of the existing Walmart name. So it's not

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Speaker 1: like they're coming up with a new name in Walmart

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Speaker 1: has been kind of obvious that they were going to

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Speaker 1: get into this field. This is more of a confirmation

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Speaker 1: of what people had already suspected, so they weren't as

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Speaker 1: concerned about keeping its secret. Whereas if you have something

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Speaker 1: that's totally new to the field, new to the company,

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Speaker 1: a new product, that's when you're going to to go

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Speaker 1: ahead and go through these extra steps of filing overseas

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Speaker 1: and Pepsi. Pepsi bought the rock Star brand, and so

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Speaker 1: it was that they were getting into speculation they're going

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Speaker 1: to get into alcoholic beverages because of course hard cider

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Speaker 1: um is very popular and all these hard drinks, hard

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Speaker 1: lemonade and things like that you see coming out. But

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Speaker 1: I have to say, sometimes, you know, it's anti chimactic.

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Speaker 1: Like with the Cleveland Guardians. I was expecting a name

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Speaker 1: that was going to really sizzle, and then I heard

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Speaker 1: Guardians and I thought, Okay, the thing is that they

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Speaker 1: want to have and that's the problem that they're going

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Speaker 1: to have is they need to have a name that's

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Speaker 1: going to be evocative of something strong, and you know,

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Speaker 1: tought and things like that. You know that you think

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Speaker 1: about the drugmakers and their efforts to come up with names.

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Speaker 1: They have to come up with a name is going

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Speaker 1: to be approved by the FDA that isn't confusing similar

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Speaker 1: to any other drug. They have to actually makeup names

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Speaker 1: they can't use like a common name. So that's why

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Speaker 1: you get all of these bizarre drug names with xes

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Speaker 1: and these. And there was a brand developer told me

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Speaker 1: years and years ago that the reason why there are

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Speaker 1: so many exes and zs and vs in um drug

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Speaker 1: names is because someone did a study that subconsciously the

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Speaker 1: mind thinks that that's a strong word, so like the

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Speaker 1: hard syllables. And that's why you see so many drugs

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Speaker 1: with those those constant the names you can pronounce, yeah,

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Speaker 1: and the names you can't pronounce yeah. Thanks so much, Sue.

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Speaker 1: That's Susan Decker, Bloomberg Patents Reporter. And that's it for

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Speaker 1: the edition of the Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news by listening to our

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Speaker 1: Bloomberg Law Podcast wherever you get your favorite podcasts. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg