Here & Now

Kaul Weighs In on Lame Duck Laws

Frederica Freyberg:

Now for a closer look at the ongoing stand-off between the Department of Justice and the Legislature. Wisconsin was not among the more than 20 states that reached a settlement with the opioid manufacturer Purdue Pharma this week. Attorney General Josh Kaul saying, “We’re committed to getting justice and in my view, Purdue’s current position does not achieve that.” This comes in the midst of an impasse with Republicans on the Legislature’s Joint Finance Committee over whether they should sign confidentiality agreements in order to see and approve case resolutions under the so-called lame duck laws limiting Kaul’s authority. The co-chairs of JFC stated, “Through media reports, the attorney general stated Wisconsin is not one of the states agreeing to settle the Purdue Pharma case at this time. We hope those reporters have signed non-disclosure agreements because they are getting confidential information from the attorney general that he refused to share with members of the Joint Finance Committee. The attorney general,” they say, “should stop playing games.” JFC committee leadership declined our invitation to appear on tonight’s program. As the high stakes dispute continues, we sat down with Attorney General Kaul just ahead of the announced settlements among other states. We started by asking about the need for those secrecy agreements.

Josh Kaul:

When you’re litigating a case, there is certain information that needs to be kept confidential in a lot of circumstances and so to present potential settlements to the legislature, we reached out and we said we need to reach a process that’s going to allow us to discuss these matters confidentially so the state’s interest, the interest of taxpayers isn’t undermined by having confidential information made public and available to the other side in litigation. We’ve offered a couple options but the primary one was we offered a confidentiality agreement for the legislature to sign. They have declined to sign that and the problem is the solutions they have offered don’t actually protect confidentiality. So we need them to figure out some sort of solution to this mess that they’ve created, so that we can move forward with resolutions for the state.

Frederica Freyberg:

One of those solutions that they offered a couple of weeks ago was to have a lawyer sign it on their behalf. Is that still what they’re talking about?

Josh Kaul:

It is not clear to me what they’re talking about now. They’ve offered a couple solutions that they said would maintain confidentiality. First, they said they would go into closed session but the Legislative Reference Bureau has made clear that that doesn’t protect confidentiality. Then they said they would have a lawyer sign a confidentiality agreement. But again the Legislative Reference Bureau said that that doesn’t bind individual legislators. So they have not yet come up with any option that would maintain confidentiality. They gave themselves this significant power but they now need to take on the responsibility that comes with that power or they need to change the law.

Frederica Freyberg:

The Senate Majority Leader Scott Fitzgerald said this about this situation. “The attorney general already knows of numerous ways he can present confidential settlement information to the Joint Finance Committee and he continues to drag his feet. He continues to say he can work with us or be part of the problem.” What’s your response to that?

Josh Kaul:

Well, he’s absolutely wrong about that. As we just talked about, there are options that they presented that don’t work. We have presented a workable option. This is a really bad situation. We’re trying to make the best of it. For months, we’ve tried to work with the Legislature but so far, they haven’t been willing to take on the responsibility that comes with this new power they’ve given themselves.

Frederica Freyberg:

You say hundreds of millions of dollars could be at stake. How so?

Josh Kaul:

The state is involved in settling lots of litigation. There are cases that have significant dollar values at stake. Over time, if this problem isn’t resolved, there is going to be significant financial consequences for the state. If we have cases, for example, a multi-state case where many states join in a settlement but we aren’t able to be part of that settlement because our Joint Finance Committee can’t get its act together and figure out how to review settlements, it’s the taxpayers in Wisconsin who are going to be harmed by that and it’s going to be harder to get justice when consumers are defrauded, for example, by somebody and we’ve brought a consumer protection action or if a polluter commits an environmental violation. We are going to have a harder time resolving those cases because the Joint Finance Committee has created this situation.

Frederica Freyberg:

What’s the status of the Purdue Pharma case?

Josh Kaul:

I can only comment generally on pending litigation but we have brought suit against two Purdue Pharma entities and also Richard Sackler, the former president and co-chair of the board of Purdue Pharma. We’ve also joined a multi-state investigation into opioid manufacturers. My predecessor joined multi-state investigations into opioid distributors and we’re committed to recovering to the fullest extent we can on behalf of Wisconsinites so we can start putting those resources to address the epidemic to things like treatment and prevention and enforcement.

Frederica Freyberg:

Were earlier settlement talks in connection with that case or those cases part of what brought you before Joint Finance saying you had an urgent matter?

Josh Kaul:

I can’t comment on the specifics of that negotiation. But what I can say is that any case where there are urgent settlement talks could lead to a situation where we might need a decision very quickly from the Joint Finance Committee. Sometimes we have to make a decision in a limited window and the Joint Finance Committee needs to have a process in place or the state is going to be at risk at losing out on being part of a large settlement.

Frederica Freyberg:

On that particular case, what would it mean if the manufacturer of OxyContin declared bankruptcy?

Josh Kaul:

If there is bankruptcy declared, Wisconsin and I think probably a number of other states, in fact I’m confident a number of other states will continue to pursue their claims both against the bankruptcy estate. We also have a claim against one of the members of the Sackler family and those claims will be claims that we continue to pursue either in a bankruptcy forum or in the form where they currently are.

Frederica Freyberg:

In terms of the situation with the Joint Finance Committee, if Justice has to try cases rather than settle them, is your office prepared to do that in every instance?

Josh Kaul:

We’re prepared to try the cases we have brought but it’s a good example of how this new procedure that has been put in place harms Wisconsinites because we have limited resources at the Department of Justice and we need to make sure we’re allocating those resources as effectively as possible. One way that we can do that is by settling some cases so that the resources we do have aren’t used in large volume on single cases. But rather we can make sure we’re getting justice in a lot more cases. If not, we need to consider the possibility that many more cases are going to trial. That’s going to impact the number of cases we can bring and the number of people who we are able to get justice for.

Frederica Freyberg:

Is there also some danger of worse outcomes if you go to trial rather than enter into a settlement?

Josh Kaul:

Absolutely. The reason you enter into a settlement agreement is you think it’s a fair resolution of a case. There are some times that risk comes with proceeding to trial. You might lose a case. You might be able to resolve it on better terms earlier and you then have to spend resources that you wouldn’t otherwise have to spend.

Frederica Freyberg:

Are you pushing this because you just don’t approve of this law or is it a partisan situation for you?

Josh Kaul:

We began in February trying to reach an agreement with the co-chairs of the Joint Finance Committee to try to put in place a process that would allow us to resolve cases. This is not a good situation no matter what process we put in place. But we’re trying to make it work because my interest is in getting the best outcome possible for Wisconsinites in these cases. But unfortunately we have not been able to reach agreement with the Joint Finance Committee because they keep insisting on solutions that don’t work. And they’ve refused to take on the responsibility of maintaining the confidentiality of confidential materials. So while I would like to see this law overturned, we’re doing our best to make it work and we unfortunately haven’t had cooperation from the Joint Finance Committee to make that a reality.

Frederica Freyberg:

Again, the Republican co-chairs of the Finance Committee declined an invitation to appear tonight.