Letter,Correspondence: Esposito Dean Vs Cellco Partnership

• 
• 
• 
• 
• 
• 

						
                                
Preview
                                MID-L-006360-23 12/04/2023 5:00:19 PM Pg 1 of 3 Trans ID: LCV20233533866




Jeffrey S. Jacobson                                                          Faegre Drinker Biddle & Reath LLP
Partner                                                                      600 Campus Drive
jeffrey.jacobson@faegredrinker.com                                           Florham Park, New Jersey 07932
+1 212 248 3191 direct                                                       +1 973 549 7000 main
                                                                             +1 973 360 9831 fax



                                        December 4, 2023

VIA ECOURTS & EMAIL

Hon. Patrick Bradshaw
Superior Court of New Jersey
Middlesex County Courthouse
56 Paterson Street, 4th Floor
P.O. Box 964
New Brunswick, New Jersey 08903-0964
kailin.lee@njcourts.gov


Re:       Esposito et al. v. Cellco Partnership d/b/a Verizon Wireless, Case No. MID-L-6360-23

Dear Judge Bradshaw:

We represent defendant Cellco Partnership d/b/a Verizon Wireless in the above-captioned action
and write in response to Murphy Advocates’ December 1, 2023 letter. Mr. Murphy’s submission
is a premature and misleading effort to interfere with a proposed nationwide consumer class
settlement that, if the Court approves it, will provide significant benefits to the class.

First, Mr. Murphy has not moved to intervene on behalf of the claimants he purports to represent,
Ltr. 1, (the “Murphy Claimants”) and has no standing to object to the class settlement or pending
motion for preliminary approval. Intervention would be improper in any event, and Mr. Murphy
cites no authority supporting such a request or his efforts to halt the preliminary approval process,
which simply triggers the transmission notice to class members so they may consider their
options. See, e.g., Rescigno v. Statoil USA Onshore Props. Inc., 2020 WL 3830931, at *7 (M.D.
Pa. July 8, 2020) (denying motion to intervene and granting motion to strike brief in opposition to
preliminary settlement approval where “[i]ntervenors have not provided a sufficient explanation
as to why their objections cannot be addressed after preliminary certification during the fairness
hearing”); Demarco v. Avalonbay Communities, Inc., 2016 WL 5934704, at *5 (D.N.J. Oct. 12,
2016) (denying motion to intervene where, “if the Proposed Intervenors object to the Class Action
Settlement Agreement, they will have an opportunity to prepare a written objection and be heard
at the final approval hearing”).

Mr. Murphy’s claimants are described as putative class members and thus may object to the
proposed settlement—or opt out—in due course should the Court preliminarily approve the
settlement, without need to intervene. See Proposed Order Granting Preliminary Approval ¶ 15
(describing process for objections); Lee v. Ocwen Loan Servicing, LLC, 2015 WL 178220, at *1
(S.D. Fla. Jan. 13, 2015) (“substantive objections to the specific provisions of the proposed
Settlement Agreement are premature and are better suited for the second stage of the class
action settlement approval process: the Final Approving Hearing.” (original emphasis)), R. & R.
adopted, 2015 WL 309441 (S.D. Fla. Jan. 23, 2015).
      MID-L-006360-23 12/04/2023 5:00:19 PM Pg 2 of 3 Trans ID: LCV20233533866




Hon. Patrick Bradshaw                           -2-                              December 4, 2023

Second, Mr. Murphy’s “either-or” demand—carve out customers with pending arbitrations from
the class definition now or delay preliminary approval pending objections—is improper. Mr.
Murphy, sidestepping the settlement agreement’s defined notice procedures, “is attempting to
object to the settlement conditionally, and then if his demands are not met, perhaps opt out. A
party may not, however, conditionally object to a settlement; nor can a class member purport to
both object and opt out.” Mulroy v. Nat’l Water Main Cleaning Co. of New Jersey, 2014 WL
7051778, at *3 n.3 (D.N.J. Dec. 12, 2014). There is no basis to treat Mr. Murphy’s purported
clients differently than all other class members nationwide who will otherwise be required to follow
the objection and exclusion process set forth in the proposed preliminary approval order.

Third, Mr. Murphy’s suggestion that preliminary approval will enjoin 9,000+ ostensibly “pending”
arbitrations is misleading. Verizon has prevailed in the four arbitrations against Mr. Murphy’s
clients to proceed to award, and only five more remain pending for hearing. The remainder have
been held in abeyance; no filing fees have been paid, and thus under AAA rules these other
claims are not considered even filed. See AAA Consumer Arbitration Rules, R-2 (“The filing fee
must be paid before a matter is considered properly filed.”). Even were that not the case, courts
regularly issue injunctions restraining parallel litigation between preliminary and final approval of
class action settlements. See, e.g., McGowan v. CFG Health Network, LLC, 2023 WL 8014541,
at *2 (D.N.J. Nov. 17, 2023) (“Pending the outcome of the final fairness hearing, all members of
the Settlement Class are preliminarily enjoined from commencing, prosecuting, or maintaining
any claim already asserted in, and encompassed by, this Litigation.”); Monk v. Johnson &
Johnson, 2013 WL 12169484, at *5 (D.N.J. Aug. 6, 2013) (preliminary approval order enjoining
lead plaintiff and “all members of the Class” from “commencing, prosecuting, continuing, or
asserting any action with regards to any of the Released Claims against the Released Parties”).

Finally, Mr. Murphy’s en masse opt-out request—made the day after he purportedly became
aware of the proposed settlement, Ltr. 1—again improperly seeks differential treatment for his
clients over other class members, and raises the concerns that underlie class settlement
prohibitions against mass exclusions: It is implausible that Mr. Murphy actually communicated
about the settlement with all 9,000+ arbitration claimants he purports to represent in the less than
24 hours it took him to file his letter with the Court and obtained their consent for his request.
Indeed, Verizon has requested but not received proof of representation from Mr. Murphy to initiate
his claimed 9,000+ arbitration proceedings. The Court should reject Mr. Murphy’s premature
attempt to short circuit the notice and approval process, and each class member should be given
notice of the proposed settlement in a court-approved form in order to make an informed decision
about whether to participate. See, e.g., Sullivan v. DB Invs., Inc., 2007 WL 9705940, at *37
(D.N.J. Sept. 6, 2007) (“The purpose of giving notice to class members is to provide them with
sufficient information to make informed and intelligent decisions about participating in the class
action and/or objecting to the proposed settlement.”), R. & R. adopted, 2008 WL 8747721 (D.N.J.
May 22, 2008).
       MID-L-006360-23 12/04/2023 5:00:19 PM Pg 3 of 3 Trans ID: LCV20233533866




Hon. Patrick Bradshaw                         -3-                              December 4, 2023



                                               ***

For all these reasons, Verizon respectfully requests that the Court enter the proposed preliminary
approval order and reject Mr. Murphy’s premature challenges to the class settlement.

Respectfully submitted,

/s/ Jeffrey S. Jacobson

Jeffrey S. Jacobson



JSJ/

cc:     (via Email)

Evan Murphy
MURPHY ADVOCATES LLC
1600 Broadway, Suite 1600
Denver, CO 80202
evan@murphyadvocates.com

Kevin Russell
Daniel Woofter
GOLDSTEIN, RUSSELL, & WOOFTER LLC
1701 Pennsylvania Ave. NW, Suite 200
Washington, DC 20006
krussell@goldsteinrussell.com
dhwoofter@goldsteinrussell.com