investigation has found that top Department of Justice
officials shielded Walmart
from criminal prosecution in 2018 for allowing suspicious opioid prescriptions to be filled over the objections of thousands of Walmart pharmacists. This happened as the Trump administration told the public it would crack down on those responsible for the opioid epidemic, Jesse Eisinger and James Bandler report
. Their blockbuster report is based on Walmart internal emails and documents, legal correspondence, and interviews with nine people familiar with the investigation.
Joe Brown, U.S. attorney for the Eastern District of Texas, and a team of employees including Heather Rattan, who has spent most of her career prosecuting drug cartels, began investigating Walmart in 2016. According to the evidence they gathered, Walmart pharmacists in Texas and other states reported hundreds of thousands of suspicious or inappropriate opioid prescriptions to their supervisors. They knew these opioids were being prescribed by "pill mill" doctors, and begged the corporate office to allow them to refuse to honor such prescriptions. Some of the doctors had been banned from sending prescriptions to all of Walmart's major competitors.
Walmart corporate officials didn't take broad action in response to these claims at the time, even though some customers who got those prescriptions died from overdose. The company said it could not cut off a doctor entirely, and that each prescription must be evaluated individually, the Texas prosecutors found. Some doctors were only banned after prosecutors began investigating Walmart, Eisinger and Bandler report. But pharmacists in some states had limited power to block individual doctors because of protective measures by state boards of pharmacy and medical boards.
The company appeared primarily concerned with the profitability of such opioid prescriptions: "An opioid compliance manager told an executive in an email, gathered during the inquiry and viewed by ProPublica, that Walmart’s focus should be on 'driving sales'," Eisinger and Bandler report.
It wasn't the first time Walmart had gotten in trouble for failing to vet opioid prescriptions; in 2011 the company entered into a secret settlement with the Drug Enforcement Administration
in a similar case and promised to make greater efforts to curb improper filling of opioid prescriptions, admitting no wrongdoing. That settlement has not been previously reported. "Walmart had repeatedly run afoul of the Controlled Substances Act," Eisinger and Bandler report. " The company had received more than 50 'Letters of Admonition' from the DEA for its prescribing practices from 2000 to 2018, according to records obtained by ProPublica."
In 2018, Rattan, the federal prosecutor in East Texas, told Walmart she was going to indict it for violating the act, an unheard-of step against a Fortune 500 company, for failing to properly track and report suspicious opioid prescriptions. Walmart had admitted to mistakes and appeared open to a civil settlement, but stopped cooperating with prosecutors in mid-2018. Through law firm Jones Day
, which has deep ties throughout the government, Walmart "added a Trumpian tactic: At a moment when the president had established a habit of attacking the investigators in his own government, the company followed a similarly aggressive approach," Eisinger and Bandler report. "Walmart lawyers complained to Washington about the Texas prosecutors, accusing them of seeking to 'embarrass' the company while using the threat of criminal charges to extort a larger civil fine. Criminal and civil investigations can run in parallel, but it’s an ethical violation for prosecutors to use the threat of criminal penalties to generate a higher civil settlement."
A Walmart lawyer also said in a letter to a Justice Department official that criminally convicting Walmart could harm millions of senior citizens and low-income people who rely on federal programs for food and medicine, since a convicted corporation might be barred from participating in such programs. As prosecutors continued their chase, "Walmart exercised its PR and political muscle," Eisinger and Bandler report: In May 2018, the company announced it would limit first-time opioid prescriptions to no more than a seven-day supply.
Walmart got high-ranking Justice employees to intervene, and the department informed Walmart that it would decline to prosecute. The prosecutors didn't give up, and in October 2018 got a sympathetic ear from acting DEA Director Uttam Dhillon. They all headed to Main Justice to meet with Deputy Attorney General Rod Rosenstein. He refused to revive the criminal case, and suggested prosecution of individual employees. But Justice blocked that too, and Trump appointees in the department consistently sided with Walmart when the team filed a civil case, Eisinger and Bandler report. One of the Texas prosecutors resigned in protest in October 2019.