No. 22O151
IN THE

Supreme Court of the United States
___________

STATE OF ARIZONA,
v.

Plaintiff,

RICHARD SACKLER, THERESA SACKLER, KATHE SACKLER, JONATHAN SACKLER, MORTIMER D.A. SACKLER,
BEVERLY SACKLER, DAVID SACKLER, ILENE SACKLER
LEFCOURT, PURDUE PHARMA, INC., PURDUE PHARMA,
L.P., THE PURDUE FREDERICK COMPANY, INC., PURDUE
HOLDINGS L.P., PLP ASSOCIATES HOLDINGS L.P.,
BR HOLDINGS ASSOCIATES L.P., ROSEBAY MEDICAL
COMPANY L.P., AND BEACON COMPANY,
Defendants.
___________

BRIEF IN OPPOSITION TO MOTION FOR
LEAVE TO FILE BILL OF COMPLAINT
___________

BENJAMIN S. KAMINETZKY *
MARC J. TOBAK
GERARD MCCARTHY
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
ben.kaminetzky@davispolk.com
Counsel for Defendants Purdue Pharma, Inc. and
Purdue Pharma, L.P.
October 30, 2019

* Counsel of Record

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTRODUCTION .................................................

1

JURISDICTION....................................................

4

STATEMENT OF THE CASE..............................

5

ARGUMENT .........................................................

7

I. THIS IS NOT THE RARE CASE IN WHICH
THE COURT SHOULD EXERCISE ITS
DISCRETION TO HEAR A STATE’S
CLAIM AGAINST A CITIZEN OF ANOTHER STATE .............................................

8

II. THIS COURT SHOULD NOT RECONSIDER ITS LONG-STANDING DETERMINATION THAT IT MAY EXERCISE DISCRETION WITH RESPECT TO ITS ORIGINAL JURISDICTION ..................................

16

CONCLUSION .....................................................

19

(i)

 ii
CASES

TABLE OF AUTHORITIES

Page

Advanced Telecomm. Network, Inc. v. Allen
(In re Advanced Telecomm. Network, Inc.),
490 F.3d 1325 (11th Cir. 2007) ..................
14
Arizona v. New Mexico, 425 U.S. 794
(1976) ..........................................................
13
ASARCO LLC v. Ams. Mining Corp., 396
B.R. 278 (S.D. Tex. 2008) ...........................
14
In re Colonial Realty Co., 980 F.2d 125 (2d
Cir. 1992) ....................................................
4
Official Comm. of Unsecured Creditors of
Cybergenics Corp. ex rel. Cybergenics Corp.
v. Chinery, 330 F.3d 548 (3d Cir. 2003) ....
4
Georgia v. Pa. R.R., 324 U.S. 439 (1945) ......
8
Glenny v. Langdon, 98 U.S. 20 (1878) ..........
4
Illinois v. City of Milwaukee, 406 U.S. 91
(1972) .................................................. 2, 3, 9, 16
Louisiana v. Bryson, No. 140, Orig., 132 S.
Ct. 1781 (2012) ...........................................
12
Maryland v. Louisiana, 451 U.S. 725
(1981) ........................................................ 10, 13
Massachusetts v. Missouri, 308 U.S. 1
(1939) ...................................................... passim
Mississippi. v. Louisiana, 506 U.S. 73
(1992) ...................................................... passim
In re MortgageAmerica Corp., 714 F.2d 1266
(5th Cir. 1983) ............................................
4
Nebraska v. Colorado, 136 S. Ct. 1034
(2016) ..........................................................
18
Ohio v. Wyandotte Chems. Corp., 401 U.S.
493 (1971) ............................................... passim
In re Ontos, Inc., 478 F.3d 427 (1st Cir.
2007) ...........................................................
4
Oregon v. Mitchell, 400 U.S. 112 (1970) .......
12

 iii
TABLE OF AUTHORITIES—continued

Page

SEC v. Antar, 120 F. Supp. 2d 431 (D.N.J.
2000), aff’d, 44 F. App’x 548 (3d Cir.
2002) ...........................................................
14
South Carolina v. Katzenbach, 383 U.S. 301
(1966) ..........................................................
12
South Carolina v. North Carolina, 558 U.S.
256 (2010) ............................................. 2, 13, 15
Texas v. New Mexico, 462 U.S. 554 (1983) ...
8
In re Tribune Co. Fraudulent Conveyance
Litig., 818 F.3d 98 (2d Cir. 2016) .............. 1, 4
Tronox Inc. v. Kerr McGee Corp. (In re
Tronox Inc.), 503 B.R. 239 (Bankr.
S.D.N.Y. 2013) ............................................
14
United States v. Nevada, 412 U.S. 534
(1973) ..........................................................
12
In re W.R. Grace & Co., 281 B.R. 852 (Bankr.
D. Del. 2002) ...............................................
14
In re Xonics Photochemical, Inc., 841 F.2d
198 (7th Cir. 1988) .....................................
14
CONSTITUTION AND STATUTES
U.S. Const. art. III, § 2, cl. 2 .........................
8
11 U.S.C. § 362 .............................................. 7, 10
11 U.S.C. § 544 .............................................. 1, 10
11 U.S.C. § 548 .............................................. 1, 10
11 U.S.C. § 1107 ............................................
1
Ariz. Rev. Stat. § 44-1001 et seq. ..................
6
Ariz. Rev. Stat. § 44-1002 .............................
14
Ariz. Rev. Stat. § 44-1004 .............................
14

 iv
TABLE OF AUTHORITIES—continued
SCHOLARLY AUTHORITIES
Page
Steven A. Boyajian, Reconsidering the
Uniformity of the Uniform Fraudulent
Transfer Act, Am. Bankr. Inst. J. 28 (Apr.
2014) ...........................................................
11
David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) .............
18
James G. Mandilk, The Modification of
Decrees in the Original Jurisdiction of
the Supreme Court, 125 Yale L.J. 1880
(2016) ..........................................................
12
OTHER AUTHORITIES
Stephen M. Shapiro et al., Supreme Court
Practice (10th ed. 2013) ........................... 12, 13
5 Collier on Bankruptcy (16th ed. 2019).......
11

 INTRODUCTION
Arizona asks this Court to exercise its original jurisdiction to resolve a complaint it seeks to bring against
citizens of other states, specifically certain members of
the Sackler family (the “Sackler Defendants”) and Purdue Pharma, Inc. and affiliated entities (“Purdue”). It
claims that the Sackler Defendants and Purdue violated Arizona law by fraudulently transferring funds
out of the companies. Purdue and the Sackler Defendants face substantively similar allegations of fraudulent transfer brought by states and others under various state laws in courts across the nation. For multiple
reasons, this Court should deny the motion for leave to
file a bill of complaint.
First, Purdue has filed for bankruptcy. As a matter
of black letter bankruptcy law, any and all fraudulent
transfer claims against Purdue or the Sackler Defendants may only be brought by the bankruptcy trustee or
debtor in possession exercising the powers of a trustee.
See, e.g., In re Tribune Co. Fraudulent Conveyance
Litig., 818 F.3d 98, 114 (2d Cir. 2016); infra at 4; 11
U.S.C. §§ 544(b), 1107. Second, this Court does not
have original jurisdiction over claims brought by a
bankruptcy trustee or debtor in possession against private persons. Third, the automatic stay applies to Arizona (see infra at 7) and this case should not proceed.
Lastly, Arizona’s central argument for this Court’s
exercise of original jurisdiction—the need for uniform
treatment of the many fraudulent transfer claims involving Purdue—is eviscerated by the bankruptcy filing. The Bankruptcy Court will consider all fraudulent
transfer claims in a single proceeding—a proceeding
created by Congress to handle precisely this type of situation with consistency and fairness. 11 U.S.C. §§ 544,
548.

 2
Even assuming that Arizona could pursue this claim
during Purdue’s bankruptcy, this is a poor case for exercise of the Court’s original jurisdiction, which is used
only “sparingly,” Mississippi. v. Louisiana, 506 U.S.
73, 76 (1992), particularly where, as here, a state is
bringing a claim not against a sister state, but against
private citizens of another state. See Illinois v. City of
Milwaukee, 406 U.S. 91, 93 (1972); Ohio v. Wyandotte
Chems. Corp., 401 U.S. 493, 496-97 (1971). In deciding
whether to take up a matter within its original jurisdiction, the Court focuses on the nature of the state’s
interests and the existence of an alternative forum for
the dispute.
Here, the Bankruptcy Court provides a unified forum for resolving Arizona’s (and all others’) fraudulent
transfer claims. Even putting that aside, at the time it
filed its motion, Arizona plainly had an alternative forum for litigating its fraudulent transfer claim—its
own state courts. Moreover, Arizona raised no federal
question in its bill of complaint, and there exists no offense to a state’s dignity or sovereignty when it can litigate a case in its own courts.
Further, Arizona is simply wrong when it claims
that “a decision from this Court” would “allow for a
uniform resolution” of any fraudulent transfer issues,
Brief in Support of Motion for Leave to File Bill of
Complaint 22 (“AZ Br.”). It is the Bankruptcy Court
that can provide a singular forum and a uniform resolution of the fraudulent transfer issues presented. At
best, this Court could address only the meaning of Arizona law (on which this Court is not the final authority). Other states are free to enact their own fraudulent transfer statutes and interpret them differently.
Finally, this Court has acknowledged the structural
limits on its ability “to assume the role of a trial judge,”
South Carolina v. North Carolina, 558 U.S. 256, 278

 3
(2010) (Roberts, C.J., concurring in the judgment in
part and dissenting in part). Contrary to Arizona’s
breezy assertion that “factfinding here will be straightforward,” AZ Br. 23, the question whether any particular transfer is fraudulent is fact-intensive and generally involves discovery and expert testimony. The
Bankruptcy Court has significant experience and expertise in these matters; no such efficiency exists in
litigating this case in this Court.
Arizona knows all of this. That is why Arizona leads
with the argument that this Court should overrule
decades of precedent and decide that its jurisdiction
over state claims against diverse citizens is mandatory. If the Court reaches that argument, it should be
rejected. This Court’s interpretation of Article III and
of 28 U.S.C. § 1251(b)(3) is founded on its established
position that “much would be sacrificed, and little
gained, by our exercising original jurisdiction over issues bottomed on local law,” and its recognition that it
has “no claim to special competence in dealing with the
numerous conflicts between States and nonresident
individuals that raise no serious issues of federal law.”
Wyandotte, 401 U.S. at 497-98. This is just such a
case.1
The motion should be denied.

1 While this Court has repeatedly held that even its exclusive
jurisdiction in cases where one state brings claims against another state is discretionary, this is not such a case. Arizona is suing citizens of other states and the Court’s jurisdiction is not exclusive. If this original jurisdiction were mandatory, the floodgates would open. The Court would then be consumed with statelaw issues and trial proceedings in which it lacks any “special
competence.” City of Milwaukee, 406 U.S. at 93-94.

 4
JURISDICTION
Purdue filed for bankruptcy after Arizona’s motion
was filed. As a result, Purdue, as a debtor in possession
exercising the powers of a bankruptcy trustee, has exclusive authority to assert all fraudulent transfer
claims pertaining to the debtor during the pendency of
the bankruptcy. Thus, Arizona may no longer assert
this claim, and it is no longer within this Court’s original jurisdiction.
In 1878, this Court explained that the Bankruptcy
Act of 1867 vested “all property conveyed by the bankrupt in fraud of his creditors . . . and all his rights of
action for property or estate, real or personal, and all
other causes of action arising from contract or from the
taking or detention or injury to the property of the
bankrupt” in the assignee (now the trustee) by virtue
of the bankruptcy process. Glenny v. Langdon, 98 U.S.
20, 21 (1878). Modern case law is in accord. See, e.g.,
Official Comm. of Unsecured Creditors of Cybergenics
Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d
548, 559 (3d Cir. 2003) (en banc); In re Ontos, Inc., 478
F.3d 427, 431-32 (1st Cir. 2007); In re MortgageAmerica Corp., 714 F.2d 1266, 1275-76 (5th Cir. 1983); In re
Colonial Realty Co., 980 F.2d 125, 132 (2d Cir. 1992).
As the Second Circuit stated, “[a]ll the case law agrees
that the trustee et al.’s powers under Section 544 are
exclusive, at least until the stay is lifted or the twoyear period expires.” In re Tribune, 818 F.3d at 114.
Thus, only the trustee or debtor in possession exercising the powers of a trustee has the authority to bring
fraudulent transfer and other avoidance actions under
the Bankruptcy Code, unless the Bankruptcy Court itself confers that authority on another. Id. This Court,
accordingly, lacks original jurisdiction over the claims
at this time.

 5
STATEMENT OF THE CASE
On May 14, 2007, Arizona and Purdue entered into
an Order for Consent Judgment, in which Purdue
agreed not to promote or market OxyContin in misleading ways and to pay $19.5 million to the 26 states
participating in the settlement underlying the Consent Judgment. See State ex rel. Goddard v. Purdue
Pharma L.P., No. C20072471 (Ariz. Super. Ct.) (“Arizona v. Purdue”); Bill of Complaint ¶ 36 (“Compl.”). In
2018, Arizona notified Purdue that the State believed
Purdue had violated the Consent Judgment. Purdue
responded on August 24, 2018, denying any violation.
Application for Order to Show Cause 24, Arizona v.
Purdue (Sept. 10, 2018).
On September 10, 2018, Arizona filed its Application
for Order to Show Cause in the Arizona Superior
Court, alleging that following entry of the 2007 Consent Judgment, Purdue “continued to engage in misleading and harmful practices,” including by “overstating benefits and downplaying risks associated with
taking the drug.” Memorandum in Support of Plaintiff’s Application for Order to Show Cause at 1, 2;
Compl. ¶ 45. The State asserted that, under Arizona’s
Consumer Fraud Act, Purdue’s violations of the Consent Judgment were subject to civil penalties of not
more than $25,000 per violation and stated that it
would seek the maximum allowable penalties plus any
other available remedies. On September 11, 2018, the
Arizona court ordered Purdue to show cause whether
it should be found in violation of the Consent Judgment. See State ex rel. Brnovich v. Purdue Pharma
L.P., No. C20072471 (Ariz. Super. Ct.). That case is set
for trial in 2021. Compl. ¶ 45.
Arizona alleges in its Complaint that “Purdue is
presently facing thousands of lawsuits in which plaintiffs, including counties, cities, towns, and nearly every

 6
State in the country, are seeking to recover billions of
dollars under consumer-protection and tort law.”
Compl. ¶ 44.
Further, in its proposed Bill of Complaint, Arizona
alleges that “the Sackler family, which controls Purdue, has siphoned billions of dollars out of the company
in recent years.” AZ Br. 1-2. Specifically, the State
cites transactions that occurred between 2008 and
2016. Compl. ¶¶ 51, 52. Arizona seeks to “claw back”
these transfers under Arizona’s fraudulent transfer
statute, see Ariz. Rev. Stat. § 44-1001 et seq. It alleges
that Purdue transferred assets to the Sackler Defendants “with the intent to hinder, delay, or defraud present and future creditors, including Arizona.” AZ Br.
14 (citing Compl. ¶¶ 46-54). It further asserts that,
due to the transfers, “Purdue’s remaining assets were
unreasonably small or, in the alternative, that Purdue
would incur debts beyond its ability to pay as they became due.” Id. (citing Compl. ¶ 54). These transfers
are alleged to constitute both intentional and constructive fraudulent conveyances, in violation of Ariz. Rev.
Stat. § 44-1001 et seq. See Compl. ¶¶ 60-71.
As Arizona further alleges, numerous states and
other jurisdictions have already sued Purdue and the
Sackler Defendants, alleging that the same transfers
described above violate other states’ fraudulent conveyance statutes. Compl. ¶ 56. See also, e.g., State v.
Purdue Pharma L.P., No. X07 HHD-CV-19-6105325-S
(Conn. Super. Ct. Apr. 22, 2019); People v. Purdue
Pharma L.P., No. 400016/2018 (N.Y. Sup. Ct. Mar. 28,
2019); State v. Sackler, No. 19CV22185 (Or. Cir. Ct.
May 16, 2019).
On September 15, 2019, Purdue filed for bankruptcy
under Chapter 11 of the Bankruptcy Code in the U.S.
Bankruptcy Court for the Southern District of New

 7
York. On September 18, Purdue commenced an adversary proceeding and filed a motion for a preliminary
injunction seeking to stay certain cases pending
against Purdue and certain related parties, including
members of the Sackler family. On October 7, Arizona
filed an objection to Purdue’s motion for a preliminary
injunction. After the hearing, the Bankruptcy Court
granted Purdue’s motion. Relevant here, it ruled that
“the Debtors are the steward of their claims against
the Sacklers, whether they be fraudulent transfer
claims, veil piercing claims, or are variations thereon.”
Transcript at 266-67, In re Purdue Pharma L.P., No.
1923649 (Bankr. S.D.N.Y. Oct. 11, 2019) (citing cases).
The Bankruptcy Court further explained that while it
was “clearly not enjoining the U.S. Supreme Court if
they want to take up the pleading that already has
been filed in front of them,” it nonetheless “enjoin[ed]
the State of Arizona from violating Section 362(a) [the
automatic stay] which enjoins them already,” and
stated that it would hold Arizona “in contempt if they
continue to pursue this litigation of Section 363(a).” Id.
at 267-68. Despite this Bankruptcy Court ruling, Arizona declined to withdraw the motion in this Court.
ARGUMENT
Even assuming this Court has jurisdiction, the automatic stay—which is critical to Arizona’s stated goal of
uniformity—would apply to this matter, and it should
not go forward. See 11 U.S.C. § 362. But even if the
automatic stay did not apply, this Court should not exercise its discretion to entertain the bill of complaint.

 8
I. THIS IS NOT THE RARE CASE IN WHICH
THE COURT SHOULD EXERCISE ITS DISCRETION TO HEAR A STATE’S CLAIM
AGAINST A CITIZEN OF ANOTHER STATE.
Arizona’s motion for leave to file a bill of complaint
alleging that transfers to the Sackler Defendants violate Arizona’s fraudulent transfer statute should be
denied. This is not an appropriate case for invocation
of this Court’s original jurisdiction, which this Court
has repeatedly explained should be exercised only
“sparingly.” Mississippi, 506 U.S. at 76.
The Constitution includes within this Court’s original jurisdiction “all Cases . . . in which a State shall be
a party.” U.S. Const. art. III, § 2, cl. 2. In 28 U.S.C.
§ 1251(b)(3), Congress instructed that the Supreme
Court “shall have original but not exclusive jurisdiction of . . . (3) All actions or proceedings by a State
against the citizens of another State . . . .” This Court
has long “interpreted the Constitution and [section
1251] as making [its] original jurisdiction ‘obligatory
only in appropriate cases.’” Mississippi, 506 U.S. at 76
(quoting City of Milwaukee, 406 U.S. at 93). See also
Wyandotte, 401 U.S. at 499; Texas v. New Mexico, 462
U.S. 554, 570 (1983) (the Court has “substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in this Court”);
Georgia v. Pa. R.R., 324 U.S. 439, 464-68 (1945) (Supreme Court “in its discretion has withheld the exercise of its jurisdiction where there has been no want of
another suitable forum to which the cause may be remitted in the interests of convenience, efficiency and
justice”). The Court has “said more than once” that its
original jurisdiction “is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute.” Mississippi, 506 U.S. at 76 (quoting Wyoming v. Oklahoma,

 9
502 U.S. 437, 450 (1992) and Louisiana v. Texas, 176
U.S. 1, 15 (1900)).
This Court first concluded that it had discretion in
exercising its original jurisdiction in cases brought by
one state against the citizens of another state in Massachusetts v. Missouri, 308 U.S. 1, 19 (1939). There
Massachusetts sought leave to bring a complaint
against Missouri and certain of its citizens, because
both states claimed an exclusive right to impose certain inheritance taxes. After finding that Massachusetts did not have a claim against Missouri, the Court
declined to consider Massachusetts’ claim against the
individual Missouri trustees, concluding that the
Court must “inquire whether recourse to that jurisdiction in an action by a State merely to recover money
alleged to be due from citizens of other States is necessary for the State’s protection.” Id. at 18. The Court
held that
[t]o open this Court to actions by States . . .
[against] citizens of other States, in the absence of
facts showing the necessity for such intervention,
would be to assume a burden which the grant of
original jurisdiction cannot be regarded as compelling this Court to assume, and which might seriously interfere with the discharge by this Court
of its duty in deciding the cases and controversies
appropriately brought before it.
Id. at 19. The Court found that Massachusetts had a
“proper and adequate remedy” against the trustees in
Missouri courts, and denied the motion for leave to file
the bill of complaint. Id. Since then, as noted, the
Court has reaffirmed its discretion in this context multiple times. See, e.g., City of Milwaukee, 406 U.S. at 98;
Wyandotte, 401 U.S. at 498.

 10
Today, in assessing whether to exercise its jurisdiction in particular cases, the Court considers “‘the nature of the interest of the complaining State,’ focusing
on the “seriousness and dignity of the claim,’” and
whether there is an alternative forum “in which the
issue[s] tendered” to the Court “may be litigated.” Mississippi, 506 U.S. at 77 (citation omitted) (quoting City
of Milwaukee, 406 U.S. at 93-94). Here both factors
weigh heavily against jurisdiction.
In considering the type of state claim that warrants
exercise of its original question, the Court has focused
virtually exclusively on questions of federal law and
issues that “implicate the unique concerns of federalism forming the basis of our original jurisdiction.”
Maryland v. Louisiana, 451 U.S. 725, 743 (1981). In
Wyandotte, the Court explained the two historic bases
for its original jurisdiction “over cases and controversies between a State and citizens of another State or
country.” 401 U.S. at 500. “The first was the belief that
no State should be compelled to resort to the tribunals
of other States for redress, since parochial factors
might often lead to the appearance, if not the reality,
of partiality to one’s own.” Id. The second factor was
“that a State, needing an alternative forum, of necessity had to resort to this Court in order to obtain a tribunal competent to exercise jurisdiction over the acts
of nonresidents.” Id.
This bill of complaint implicates neither concern.
Preliminarily, once bankruptcy is filed, fraudulent
transfer issues are resolved in bankruptcy courts. 11
U.S.C. §§ 362, 544, 548. The question of state law presented by the bill of complaint has, accordingly, been
displaced by a federal bankruptcy law question that
should be—and routinely is—decided in the expert federal forum of the Bankruptcy Court.

 11
Even taken on its own terms, the bill of complaint
presents a question of Arizona law that Arizona could
have litigated in its own courts. There is no affront to
the State’s sovereignty in litigating an issue of its own
state law in its own courts.2 See Wyandotte, 401 U.S.
at 504 (“it is vitally important to stress that we are not
called upon by this lawsuit to resolve difficult or important problems of federal law”).
Indeed, the Court has principally exercised its discretion to hear a case within its original jurisdiction in
disputes between States “of such seriousness that it
would amount to casus belli if the States were fully
sovereign,” Mississippi, 506 U.S. at 77 (quoting Texas,
462 U.S. at 571 n.18), including disputes “sounding in
sovereignty and property, such as those between
states in controversies concerning boundaries, and the
manner of use of the waters of interstate lakes and riv-

2 Arizona’s claim that its bill of complaint does not present “an
‘issue[] bottomed on local law’” AZ Br. 23, is demonstrably wrong.
It places only Arizona’s law at issue. Other states have similar
laws—as is often the case—but there are significant differences
among them. A leading bankruptcy treatise reports that 36 states
and the District of Columbia have adopted the Uniform Fraudulent Transfer Act (the “UFTA”); two states—New York and Maryland—retain statutes based on its predecessor, the Uniform
Fraudulent Conveyance Act; and nine states have enacted the
UFTA’s successor, the Uniform Voidable Transactions Act. See 5
Collier on Bankruptcy ¶ 544.06 (16th ed. 2019). Even those states
that, like Arizona, have adopted the UFTA differ significantly in
their interpretation and implementation on issues such as standards of pleading and proof. See, e.g., Steven A. Boyajian, Reconsidering the Uniformity of the Uniform Fraudulent Transfer Act,
Am. Bankr. Inst. J. 28 (Apr. 2014). In addition, as shown infra at
15-16, different jurisdictions assess a debtor’s solvency differently. Thus, were the Arizona law issue presented, this Court’s
decision would not have “allow[ed] for a uniform resolution of this
issue.” AZ Br. 22.

 12
ers,” as well as suits under interstate compacts. Stephen M. Shapiro et al., Supreme Court Practice § 10.2,
at 622 (10th ed. 2013) (collecting cases). The Court
rarely grants leave to file a complaint in cases where a
state brings a claim against a citizen of another state.
See James G. Mandilk, The Modification of Decrees in
the Original Jurisdiction of the Supreme Court, 125
Yale L.J. 1880, apps. A & B (2016). When the Court
has heard disputes between a state and a citizen of another state, the matter often involved a state suing a
federal official to raise an important constitutional
question.3 Unsurprisingly, the fraudulent transfer issues here do not involve such matters.
With respect to the second factor, the Bankruptcy
Court can resolve all fraudulent transfer issues associated with Purdue’s bankruptcy in a single proceeding
in the ordinary course under federal law. It is the specialized forum designed by Congress to resolve these
issues in this setting and plainly available to Arizona.
And prior to the bankruptcy filing, Arizona did not dispute that its own courts were available to hear its
fraudulent transfer claim against Purdue and the
Sackler Defendants.
This Court has been “particularly reluctant to take
jurisdiction of a suit where the plaintiff has another
adequate forum in which to settle its claim.” United
3 See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 307
(1966) (the constitutionality of the Voting Rights Act of 1965); Oregon v. Mitchell, 400 U.S. 112, 117 n.1, 152-53 n.1 (1970) (plurality opinion) (the constitutionality of reducing the voting age to
18). Even in such cases, this Court often denies motions for leave
to file. See, e.g., Louisiana v. Bryson, No. 140, Orig., 132 S. Ct.
1781 (2012) (mem.) (denying motion for leave to file bill of complaint in suit to enjoin counting of non-immigrant foreign nationals in U.S. Census for purpose of allocating seats in the U.S.
House of Representatives).

 13
States v. Nevada, 412 U.S. 534, 538 (1973) (per curiam). See also Arizona v. New Mexico, 425 U.S. 794,
796-97 (1976) (per curiam) (availability of actions by
other parties raising same legal claims can militate
against exercise of original jurisdiction); Mississippi,
506 U.S. at 76 (same). The existence of an alternative
forum demonstrates that “recourse to [the Supreme
Court’s original] jurisdiction” is not “necessary for the
State’s protection.” Massachusetts v. Missouri, 308
U.S. at 18. See also Shapiro, Supreme Court Practice,
supra, § 10.6, at 636 (“[T]he Court is likely to decline
to exercise original jurisdiction once satisfied that another court has the necessary jurisdiction and powers
to resolve the issues.”).
Finally, in declining to exercise its original jurisdiction, the Court has frequently highlighted several additional relevant points. First, the Court has observed
that it “is not suited to functioning as a nisi prius tribunal,” Maryland, 451 U.S. at 761 (Rehnquist, J., dissenting), and that matters requiring factual development and adjudication “tax the limited resources of
this Court by requiring [it] ‘awkwardly to play the role
of factfinder.’” South Carolina, 558 U.S. at 267 (quoting Wyandotte, 401 U.S. at 498).
Arizona claims “factfinding here will be straightforward,” AZ Br. 23; but under either the Bankruptcy
Code or Arizona law, that is clearly wrong. To illustrate, under Arizona’s statute, a transfer is fraudulent
if it was made (i) with intent to defraud a creditor; or
(ii) without receiving “reasonably equivalent value,”
where the debtor was insolvent, or was rendered insolvent by the transfer, where “the remaining assets of
the debtor were unreasonably small in relation to the
business or transaction,” or where the debtor “believed

 14
or reasonably should have believed that he would incur, debts beyond his ability to pay as they became
due.” Ariz. Rev. Stat. §§ 44-1002, 44-1004.
Here, the transfers at issue occurred over a significant period of time (2008-2016), and determining the
value of the claims against Purdue—which were at the
relevant times (and remain) contingent, disputed liabilities—in resolving Purdue’s balance sheet, capitalization, or ability to pay debts at the time of each transfer would require significant factual development and
expert testimony. See, e.g., In re W.R. Grace & Co., 281
B.R. 852, 869 (Bankr. D. Del. 2002) (in valuing a contingent or disputed claim, the court must look to “a fair
and accurate assessment of the . . . liability as the pertinent date”). Indeed, the valuation of future liabilities
is highly fact dependent, including factors such as the
debtor’s notice of potential claims and ability reasonably to estimate the value of such contingent or disputed liabilities. In addition, there may be questions
about whether it is appropriate to use a “probability
discount” approach or some other method of valuing
these claims. See In re Xonics Photochemical, Inc., 841
F.2d 198, 200 (7th Cir. 1988); Advanced Telecomm.
Network, Inc. v. Allen (In re Advanced Telecomm. Network, Inc.), 490 F.3d 1325, 1335-36 (11th Cir. 2007);
SEC v. Antar, 120 F. Supp. 2d 431, 443 (D.N.J. 2000),
aff’d, 44 F. App’x 548 (3d Cir. 2002). It is thus no surprise that significant fraudulent transfer cases routinely require weeks of trial time. See, e.g., Tronox Inc.
v. Kerr McGee Corp. (In re Tronox Inc.), 503 B.R. 239,
248 (Bankr. S.D.N.Y. 2013) (noting that fraudulent
transfer trial “consum[ed] 34 trial days at which 28
witnesses testified”); ASARCO LLC v. Ams. Mining
Corp., 396 B.R. 278, 298, 433 (S.D. Tex. 2008) (fraudulent transfer trial spanned “four weeks of trial testimony”).

 15
In sum, these are complex issues plainly within the
experience and expertise of the Bankruptcy Court.
This Court has also expressed concern about “diverting [its] attention from [its] primary responsibility as
an appellate tribunal.” South Carolina v. North Carolina, 558 U.S. 256, 267 (2010). Accepting original jurisdiction in this case—a State claim against private
citizens of another state for violation of the complaining State’s law where another forum is available for
the dispute—would create the floodgates problem
Chief Justice Hughes first explained in Massachusetts
v. Missouri, see supra at 10. Put bluntly, “a host of such
actions that might, with equal justification, be commenced in this Court.” Wyandotte, 401 U.S. at 504-05.
Relatedly, the Court has observed that the scope of
its original jurisdiction places it in the “quandary” of
“opt[ing] either to pick and choose arbitrarily among
similarly situated litigants” in order to preserve the
Court’s ability to attend to its appellate docket, or
“devot[ing] truly enormous portions” of the Court’s
“energies to such matters.” Wyandotte, 401 U.S. at 504.
This case illustrates that point in two ways. There is
no reason for the Court to decide Arizona’s fraudulent
transfer claim in contrast to the claims challenging the
same transfers brought by numerous other states and
municipalities, particularly when the Bankruptcy
Court is available to decide all claims. See id. at 503
(finding no need for the Court to “settle a small piece
of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling
with on a more practical basis”). And, there is no reason that the fraudulent transfer issue presented by Arizona should be resolved by this Court.
For all these reasons, the motion for leave to file the
bill of complaint should be denied.

 16
II. THIS COURT SHOULD NOT RECONSIDER
ITS LONG-STANDING DETERMINATION
THAT IT MAY EXERCISE DISCRETION
WITH RESPECT TO ITS ORIGINAL JURISDICTION.
Arizona asks this Court to reconsider its decades-old
conclusion—reaffirmed repeatedly over time and in
multiple contexts—that its exercise of original jurisdiction in controversies between States and citizens of
other states is discretionary. See Massachusetts v. Missouri, 308 U.S. at 194; Wyandotte, 401 U.S. at 494; City
of Milwaukee, 406 U.S. at 93. Specifically, the Court
has concluded that it has discretion to decline to hear
such a case where
(1) declination of jurisdiction would not disserve
any of the principal policies underlying the Article
III jurisdictional grant, and (2) the reasons of
practical wisdom that persuade us that this Court
is an inappropriate forum are consistent with the
proposition that our discretion is legitimated by
its use to keep this aspect of the Court’s functions
attuned to its other responsibilities.
Wyandotte, 401 U.S. at 499. As demonstrated above,
and setting the jurisdictional issue to the side, both elements of this test are fully satisfied here.
In 1939, the Court recognized “the need [for] the exercise of a sound discretion in order to protect this
Court from an abuse of the opportunity to resort to its
original jurisdiction in the enforcement by States of
claims against citizens of other States.” Massachusetts

4 Arizona suggests that the Court first determined it had discretion with respect to this category of original jurisdiction in
1971, AZ Br. 15; but Massachusetts v. Missouri reached this conclusion in 1939.

 17
v. Missouri, 308 U.S. at 19. The Court re-affirmed that
conclusion in Wyandotte, explaining that “[a]s our social system has grown more complex, the States have
increasingly become enmeshed in a multitude of disputes with persons living outside their borders,” on issues such as “taxes, motor vehicles, decedents’ estates,
[and] business torts.” Wyandotte, 401 U.S. at 497. The
Court concluded that “[i]t would, indeed, be anomalous
were this Court to be held out as a potential principal
forum for settling such controversies.” Id.
Indeed, given that “[t]his Court’s paramount responsibilities to the national system lie almost without exception in the domain of federal law,” it is clear that
“much would be sacrificed, and little gained, by our exercising original jurisdiction over issues bottomed on
local law,” where the Court has “no claim to special
competence.” Id. at 497-98. This reasoning has even
more salience today than when Wyandotte was decided
in 1971.
Arizona’s primary response is that the Court’s discretionary approach is inconsistent with the “timehonored maxim of the Anglo-American common-law
tradition that a court possessed of jurisdiction generally must exercise it.” AZ Br. 15-16 (quoting Wyandotte, 401 U.S. at 496-97). But as this Court has already explained, “the broad statement that a court
having jurisdiction must exercise it . . . is not universally true but has been qualified in certain cases where
the federal courts may, in their discretion, properly
withhold the exercise of the jurisdiction conferred
upon them where there is no want of another suitable
forum.” Massachusetts v. Missouri, 308 U.S. at 19.
“[T]he need of the exercise of a sound discretion” is especially clear here “in order to protect this Court from
an abuse of the opportunity to resort to its original jurisdiction in the enforcement by States of claims

 18
against citizens of other States.” Id. See also David L.
Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L.
Rev. 543, 545 (1985) (“[F]ar from amounting to judicial
usurpation, open acknowledgement of reasoned discretion [in matters of jurisdiction] is wholly consistent
with the Anglo-American legal tradition.”); id. at 54870 (citing, inter alia, traditional equitable discretion
not to proceed, abstention doctrines rooted in comity
and federalism, prudential standing and ripeness, forum non conveniens, exhaustion of remedies, and federal question jurisdiction).
Finally, Arizona relies on Justice Thomas’s dissent
from denial of the motion for leave to file a complaint
in Nebraska v. Colorado, 136 S. Ct. 1034, 1035 (2016)
(mem.) (Thomas, J., dissenting). That case involved
two states seeking leave to file a complaint against another state. Although the dissent thought the Court’s
discretionary approach generally would “bear[] reconsideration,” it was focused on the fact that the Court
has original and exclusive jurisdiction over suits between two states and therefore that, if the Court were
to deny the motion, “the complaining State [would
have] no judicial forum in which to seek relief.” Id. Of
course, this is not such a case; Arizona plainly has an
alternative forum.

 19
CONCLUSION
For these reasons, the motion for leave to file a bill
of complaint should be denied.
Respectfully submitted,
BENJAMIN S. KAMINETZKY *
MARC J. TOBAK
GERARD MCCARTHY
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
ben.kaminetzky@davispolk.com
Counsel for Defendants Purdue Pharma, Inc. and
Purdue Pharma, L.P.
October 30, 2019

* Counsel of Record