Class Action Alleges McKinsey & Co. Liable for Increased Sales of Purdue Pharma’s OxyContin

The Mingo County Commission and the town of Kermit, West Virginia, are leading a putative class-action complaint filed Sunday in the Southern District of West Virginia that alleges defendant McKinsey & Company Inc. is complicit in perpetuating the opioid crisis through its partnership with Purdue Pharma that increased OxyContin sales after Purdue twice pled guilty to improperly marketing the drug.

United States Attorney for the Western District of Virginia John Brownlee announced May 10, 2007, that Purdue was pleading guilty to misbranding OxyContin. Purdue admitted that “supervisors and employees, with the intent to defraud or mislead, marketed and promoted OxyContin as less addictive, less subject to abuse and diversion, and less likely to cause tolerance and withdrawal than other pain medications,” according to the complaint. As part of the guilty plea, Purdue entered into a five-year Corporate Integrity Agreement, ending in 2012, with the Inspector General of the Department of Health and Human Services during which Purdue had to submit compliance reports annually that detailed its marketing and sales methods and sales representatives’ training in relation to their conduct with health care practitioners, as well as keep an independent monitor to oversee compliance, the complaint explains.

The founders of Purdue, the Sackler family, began trying to distance themselves from Purdue as a result of the 2007 guilty plea, according to the plaintiffs. In their efforts to do so, “the Sacklers planned to engage in a final flurry of opioid pushing in order to rid themselves of their pharmaceutical company dependency for good” by positioning Purdue in an appealing way to other companies interested in an acquisition or merger, the complaint states, which led to partnering with McKinsey in 2009, three years before the Corporate Integrity Agreement was to end, to implement a strategy for increasing Purdue’s OxyContin sales. The plaintiffs argue that McKinsey was instrumental in the new sales strategy that was “based on McKinsey’s own independent research and unique methodologies” and adopted by Purdue.

Notwithstanding the Corporate Integrity strictures, OxyContin sales multiplied, tripling within five years of the guilty plea, according to the complaint — and the plaintiffs proffered that McKinsey is liable for this increase in sales.

“The restrictions on Purdue’s sales and marketing methods contained in the Corporate Integrity Agreement should have resulted in fewer overall OxyContin sales,” the plaintiffs argued. “(T)he guilty plea identified a specific segment of existing OxyContin sales that were illegitimate and should thus cease. All else being equal, OxyContin sales should have decreased to account for the successful snuffing out of improper sales.”

Law Street Media previously reported that another guilty plea by Purdue was returned Oct. 20, 2020, on three felony counts again regarding improper representation of its opioid products. The plea was related to conduct from 2010 to 2018, ostensibly overlapping for two years with the Corporate Integrity Agreement.

The specific allegations brought by the plaintiffs are negligence, negligent misrepresentation, public nuisance, deceit and actual and constructive fraud, civil conspiracy/joint and several liability, civil aiding and abetting, unjust enrichment, and intentional acts and omissions. Among the plaintiffs’ requests are costs for medical care and treatments such as counseling and rehabilitation services for those experiencing opioid addiction, other costs associated with the opioid crisis’ effects, and past and future costs related to the “ongoing public nuisance” of the crisis.

The plaintiffs are represented by The Chafin Law Firm, Morgan & Morgan, and Browne Pelican.