Motion,Ex Parte: Esposito Dean Vs Cellco Partnership

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                                MID-L-006360-23 01/29/2024 3:23:40 PM Pg 1 of 28 Trans ID: LCV2024244074




 DeNITTIS OSEFCHEN PRINCE, P.C.                           HATTIS & LUKACS
 Stephen P. DeNittis, Esq. (031981997)                    Daniel M. Hattis, Esq.*
 Joseph A. Osefchen, Esq. (024751992)                     Paul Karl Lukacs, Esq.
 Shane T. Prince, Esq. (022412002)                        11711 SE 8th Street, Suite 120
 525 Route 73 North, Suite 410                            Bellevue, WA 98005
 Marlton, New Jersey 08053                                (425) 233-8650
 (856) 797-9951

 CRIDEN & LOVE, P.A.                                      * Admitted Pro Hac Vice
 Michael E. Criden, Esq.*
 Lindsey C. Grossman, Esq.
 7301 SW 57th Court, Suite 515
 South Miami, FL 33143
 (305) 357-9000

 Attorneys for Plaintiffs and the Class


  DEAN ESPOSITO, et al., on behalf of             SUPERIOR COURT OF NEW JERSEY
  themselves and all others similarly situated,   MIDDLESEX COUNTY
                                                  LAW DIVISION
                            Plaintiffs,
                                                  DOCKET NO. MID-L-6360-23
                 v.

  CELLCO PARTNERSHIP d/b/a VERIZON
  WIRELESS,

                            Defendant.




                PLAINTIFF’S OPPOSITION TO MOTION TO INTERVENE
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                              TABLE OF CONTENTS

                                                                           Page(s)

 TABLE OF AUTHORITIES…………………………………………………………………..ii-iii

 I.      AT LEAST 728 OF MR. MURPHY’S PURPORTED CLIENTS HAVE
         ALREADY FILED CLAIMS WITH THE CLAIMS ADMINISTRATOR
         SEEKING PAYMENT UNDER THE PROPOSED CLASS ACTION
         SETTLEMENT……………………………………………………………………………1

 II.     INTERVENTION IS NOT NEEDED BECAUSE PARAGRAPH 14 OF THE
         COURT’S DECEMBER 15, 2023 ORDER INCLUDES A PERFECTLY
         VIABLE MECHANISM FOR MR. MURPHY’S PURPORTED CLIENTS TO
         OPT OUT OF THE CLASS AND THE PROPOSED SETTLEMENT WITHOUT
         ANY DELAY OR MOTION PRACTICE………………………………………………..3

 III.    AS A PRACTICAL MATTER, IT IS IMPOSSIBLE TO GRANT THE
         INTERVENTION MOTION BASED ON THE LIMITED INFORMATION
         MR. MURPHY HAS PROVIDED TO THE COURT……………………………………7

 IV.     ITS IS BLACK LETTER CLASS ACTION LAW THAT INTERVENTION
         BY ABSENT CLASS MEMBERS IS UNNESSARY WHERE THE PROPOSED
         SETTLEMENT PROVIDES A MECHANISM FOR OPTING OUT OF THE
         CLASS AND/OR FOR OBJECTING…………………………………………………...11

 V.      INTERVENTION SHOULD BE DENIED WHERE IT WOULD CAUSE
         PREJUDICE OR DELAY TO THE EXISTING PARTIES OR CLASS MEMBERS….13

 VI.     THE PROPOSED INTERVENORS HAVE NOT SHOWN THAT THE
         CLASS COUNSEL APPOINTED BY THE COURT ARE INADEQUATE
         TO PROTECT THEIR INTERESTS…………………………………………………….17

 VII.    AN INTERVENOR MAY NOT INTERVENE IN AN ACTION SIMPLY
         FOR THE PURPOSE OF ATTEMPTING TO STAY OR MOVE THE
         DISPUTE TO ANOTHER FORUM…………………………………………………….19

 VIII.   THE INTERVENTION MOTION IS UNTIMELY……………………………………..20

 IX.     INTERVENTION IS NOT NEEDED BECAUSE THE PROPOSED
         INTERVENORS SIMPLY NEED TO EXCLUDE THEMSELVES FROM
         THE PROPOSED SETTLEMENT ON OR BEFORE FEBRUARY 20, 2024
         TO CONTINUE TO ARBITRATE OR LITIGATE THEIR CLAIMS…………………21

 Conclusion……………………………………………………………………………………….23




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                                TABLE OF AUTHORITIES

                                          CASES

                                                                                     Page(s)

 Achey v. Cellco P’ship, 475 N.J. Super. 446, 452 (App. Div. 2023)……………………………15

 Adams-Gillard v. Sedgwick Claims Mgmt. Servs., No. 2:21-cv-02038-SHM-cgc,
 2022 U.S. Dist. LEXIS 58269, at *11 (W.D. Tenn. Mar. 30, 2022)…………………………….13

 Atl. Emplrs Ins. Co. v. Tots & Toddlers Pre-School Day Care Ctr.,
 239 N.J. Super. 276, 280 (App. Div. 1990)……………………………………………………...13

 Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987)………………………………………18

 Ciancio v. Ciancio, No. A-4121-04T1, 2006 N.J. Super. Unpub. LEXIS 1586,
 at *5 (App. Div. Aug. 31, 2006)…………………………………………………………………17

 Davis v. J.P. Morgan Chase & Co., 775 F.Supp.2d 601, 605–606 (W.D.N.Y. 2011)…...12, 14, 17

 Doe v. Cin-Lan, Inc., No. 08-cv-12719, 2011 WL 37970, at **2-3
 (E.D. Mich. Jan. 5, 2011)………………………………………………………………………...13

 Glover v. Ferrero USA, Inc., Civil Action No. 11-1086(FLW),
 2011 U.S. Dist. LEXIS 121352, 2011 WL 5007805, at *7 (D.N.J. Oct. 20, 2011)……………...20

 Gumm v. Jacobs, No. 5:15-cv-41 (MTT), 2020 U.S. Dist. LEXIS 48324, at *4
 (M.D. Ga. Mar. 20, 2020)………………………………………………………………………..14

 Grilli v. Metropolitan Life Ins. Co., Inc., 78 F.3d 1533, 1536-38 (11th Cir. 1996)……………..12

 In re Cmty. Bank of N. Va. & Guar. Nat’l Bank of Tallahassee Second
 Mortg. Loan Litig., 418 F.3d 277, 315 (3d Cir. 2005)…………………………………………...17

 In re DHB Indus., Inc. 2007 WL 2907262, *2 (E.D.N.Y. Sept. 30, 2007)………………………13

 In re: Motor Fuel Temp. Sales Practices Lit.,
 2011 WL 5331678, *2 (D. Kansas Nov. 4, 2011)……………………………………………….12

 In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d Cir. 2010)………………………17

 In re Warfarin Sodium Antitrust Litigation, 212 F.R.D. 231, 263-64 (D.Del. 2002)……………12

 MacClelland v. Cellco P’ship, 609 F. Supp. 3d 1024, 1040 (N.D. Cal. 2022)…………………..16




                                              ii
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 Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998)…………………….13

 Muslim Ummah Tr. v. Husaeen, Nos. A-0130-18T4, A-0271-18T4,
 2020 N.J. Super. Unpub. LEXIS 544, at *22 (App.Div. Mar. 16, 2020)………………………..17

 R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 8 (1st Cir. 2009)………….21

 Sorace v. Wells Fargo Bank, N.A., No. 20-4318, 2023 U.S. Dist. LEXIS 158159,
 at *4 (E.D. Pa. Sep. 7, 2023)……………………………………………………………………..14

 S.T. v. 1515 Broad St., LLC, 241 N.J. 257, 274 (2020)…………………………………………..3

 Travis v. Navient Corp., 284 F. Supp. 3d 335, 346-47 (E.D.N.Y. 2018)………………………..19

 White v. White, 313 N.J. Super. 637, 640-641 (Super. Ct. 1998)……………………………….17


                                      STATUTES

                                                                                 Page(s)

 New Jersey RPC 1.2(a)……………………………………………………………………………3

 New Jersey RPC 1.5(b)……………………………………………………………………………1

 Rule 4:33-1……………………………………………………………………………………….17


                                        OTHER

                                                                                 Page(s)

 1 William B. Rubenstein, et al., Newberg on Class Actions, § 3:1 (5th ed.)……………………...5




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 I.     AT LEAST 728 OF MR. MURPHY’S PURPORTED CLIENTS HAVE ALREADY
        FILED CLAIMS WITH THE CLAIMS ADMINISTRATOR SEEKING PAYMENT
        UNDER THE PROPOSED CLASS ACTION SETTLEMENT

        Mr. Murphy has filed an intervention motion seeking to allow what he claims are 9,970 1

 of his clients to intervene in this matter as parties. According to Mr. Murphy’s papers, the sole

 purpose of that proposed intervention is so that Mr. Murphy can exclude these purported 9,970

 clients from the settlement class and to thereafter pursue their claims with Mr. Murphy in

 arbitration. In support of that intervention motion, Mr. Murphy has provided a bare list of names

 of the 9,970 persons whom Mr. Murphy purports are represented by him. Mr. Murphy does not

 actually state in his moving papers whether or not he has a written signed retainer agreement

 with each of his purported 9,970 clients (as required by New Jersey RPC 1.5(b)). Nor has Mr.

 Murphy provided any such retainer agreements to the Court or even described the contents of

 any such agreements, including the scope and limits, if any, of his alleged representation.

 Specifically, Mr. Murphy has not represented to the Court that any written retainers he has with

 his purported 9,970 clients gives Mr. Murphy the authority: 1) to seek to opt those clients out of

 the certified class action; 2) to reject settlement offers, including the proposed class action

 settlement on behalf of his purported clients; or 3) to file a motion to intervene as parties on

 behalf of his clients in an on-going, certified class action. Unfortunately, these are not merely

 academic questions. Recent events have made them alarmingly real and concrete.

        Specifically, the settlement claims administrator (Angeion Group) has advised Class

 Counsel that 728 unique persons whom Murphy purports are his clients have matching names

 and email addresses with persons who have filed a claim to receive payment from the settlement.


 1
  The history of Mr. Murphy repeatedly making ever-changing and incompatible claims as to the number
 of Verizon customers he purportedly represents is described in detail in Section II herein and in the
 accompanying Declaration of Class Counsel Stephen P. DeNittis (hereafter “DeNittis Declaration”) at
 Paragraph 13.


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 See Angeion Declaration at Paragraph 7. The class settlement administrator made this

 determination by running a database query to determine how many of the unique persons listed

 in spreadsheets that Verizon had previously received from Mr. Murphy (the “Murphy Claimant

 Spreadsheets”), matched the identical name plus email address of persons who have filed a claim

 to receive payment under the settlement. Id. at Paragraphs 4–6. The class settlement

 administrator found that 728 unique persons on the Murphy Claimant Spreadsheets had matching

 names and email addresses with persons who had filed a claim to receive payment from the

 settlement (i.e., for these matching records, both the name and email address were identical,

 which indicated that they were the same person). These 728 persons are not simply persons who

 happen to share the same name of other class members who filed claims. Id. at Paragraph 6.

 These 728 persons who filed claims for payment under the class settlement are the very same

 named individuals, with the same exact matching unique email addresses, as persons Mr.

 Murphy has listed as purported clients in the Murphy Claimant Spreadsheets which Mr. Murphy

 previously provided to Verizon and to the American Arbitration Association. Id. at Paragraphs 4,

 6.

        Obviously, seeking to opt-out of a settlement class (as Mr. Murphy seeks to do in his

 motions) and filing a claim to receive benefits as a class member under a proposed class action

 settlement (as 728 of Mr. Murphy’s purported clients have already done) are inconsistent and

 mutually contradictory actions. Whatever Mr. Murphy claims or implies in his motion papers, the

 728 of Mr. Murphy’s purported clients who have already filed claims for benefits under the class

 settlement have already “voted with their feet.” They have indicated in the clearest manner

 possible that they do not want to intervene in this matter or to have themselves excluded from the

 class (as Mr. Murphy’s motions propose). Indeed, to exclude them from the class—as Mr.




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 Murphy’s motions seek to do—would deprive them of the settlement benefits for which the

 purported clients themselves have already personally filed claims. A lawyer’s wishes cannot

 override the expressed wishes of his or her client. See New Jersey RPC 1.2(a) (“A lawyer shall

 abide by a client’s decisions concerning the scope and objectives of representation… A

 lawyer shall abide by a client’s decision whether to settle a matter”). See also S.T. v. 1515

 Broad St., LLC, 241 N.J. 257, 274 (2020) (“The Rules of Professional Conduct, moreover,

 require lawyers to ‘abide by a client’s decisions concerning the scope and objectives of

 representation” and whether to accept or reject a settlement offer.’”).

        Assuming for the sake of argument that Mr. Murphy does indeed have—or at least had—

 some sort of attorney/client relationship with all 9,970 of the proposed intervenors on Mr.

 Murphy’s list (“List of Intervenors”), at least 728 of his purported clients clearly do not want to

 follow the path that Mr. Murphy is currently charting. Instead, these people have followed their

 own path and have decided to stay in the class and get the benefits under the settlement by filing

 a claim. As such, these 728 persons clearly cannot intervene in this action as parties or be

 excluded from the class. They have signaled their intent to remain in the class and have asked to

 receive their benefits under the settlement in the clearest terms possible. Even if Mr. Murphy

 is—or was—their lawyer, Mr. Murphy cannot unilaterally undo or override their decision.

 II.    INTERVENTION IS NOT NEEDED BECAUSE PARAGRAPH 14 OF THE
        COURT’S DECEMBER 15, 2023 ORDER INCLUDES A PERFECTLY VIABLE
        MECHANISM FOR MR. MURPHY’S PURPORTED CLIENTS TO OPT OUT OF
        THE CLASS AND THE PROPOSED SETTLEMENT WITHOUT ANY DELAY
        OR MOTION PRACTICE

        Mr. Murphy’s request that his alleged “clients” be excluded from the proposed settlement

 class has been complicated by the fact that, at various times in the past, Mr. Murphy has given

 wildly different figures over the last year for the number of unnamed purported clients he claims




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 to represent; numbers which fluctuate from a “low” of “8,000” to a high of “21,000.” See

 DeNittis Declaration at Paragraphs 8, 13. Since December of 2023, Mr. Murphy seems to have

 decided to assert that he now represents somewhere between 9,110 and 9,970 Verizon customers,

 but even that figure keeps changing. For example, in his recent correspondence with this Court

 dated December 1, 2023, Mr. Murphy told the Court that he represented only 9,110 Verizon

 customers. See Murphy Advocates Letter to Court dated December 1, 2023, which stated:

 “Please be advised that my firm represents 9,110 Claimants who have filed individual

 arbitrations with the American Arbitration Association seeking redress for Verizon

 charging ‘administrative fees.’” Yet, in his current motion for intervention filed just five weeks

 later, Mr. Murphy is now claiming to represent 9,970 former Verizon customers, with no

 explanation as to why that number is 860 higher than what he represented to this same Court

 only five weeks ago. 2

         Factors such as this have made it a practical impossibility for Class Counsel to endorse

 the type of “mass exclusion” from the class which Mr. Murphy says he ultimately seeks. Indeed,

 throughout the negotiation of the proposed settlement, Mr. Murphy has demanded an open-ended

 and non-specific exclusion in the class definition which amounts to a provision that says

 “excluded from the class are an ever-changing number of unnamed persons whom Evan

 Murphy claims to represent at any given time.” Obviously, such a subjective class definition

 could not pass legal muster because it would not be possible for Class Counsel or the Court to


 2
  One possible explanation for this recent and sudden increase of over 800 purported Murphy clients
 between December 1, 2023 and today is that, after the Court certified the class and appointed class
 counsel to represent the class members on December 15, 2023, Mr. Murphy began improperly targeting
 members of the certified class with ex parte communications urging them to opt out of the settlement and
 hire him. See Class Counsel’s Motion for a Protective Order, Injunctive Relief, and/or Order to Show
 Cause (setting forth various case law prohibiting the practice of lawyers “raiding” members of certified
 classes, by encouraging class members represented by class counsel to opt-out and sign up with the new
 attorney).


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 know if a particular person was or was not in the class. See, e.g., 1 William B. Rubenstein, et al.,

 Newberg on Class Actions, § 3:1 (5th ed.) (“The class definition must be clear in its

 applicability so that it will be clear later on whose rights are merged into the judgment,

 that is, who gets the benefit of any relief and who gets the burden of any loss. If the

 definition is not clear in its applicability, then satellite litigation will be invited over who

 was in the class in the first place.”).

        Accordingly, Class Counsel included an opt-out provision in the proposed settlement

 which allows any class member, including Mr. Murphy’s clients, to exclude themselves from the

 class for any reason (including that they want to be represented by Mr. Murphy or want to

 arbitrate or otherwise litigate their claims individually). Paragraph 14 of the Court’s Preliminary

 Approval Order dated December 15, 2023 sets forth this opt-out mechanism in detail and sets

 deadlines for such opt-outs (deadlines which have not yet expired). See Preliminary Approval

 Order Dated December 15, 2023 at Paragraph 14:

           “14. Settlement Class Members may exclude themselves from the
           Settlement Class by mailing to the Settlement Administrator, at the
           address provided in the Website Notice, a request for exclusion that is
           postmarked no later than thirty-five days after the Notice Date (the
           ‘Exclusion Deadline’). To be effective, the request for exclusion must
           include (1) the Settlement Class Member’s full name, telephone
           number, mailing address, and email address; (2) a clear statement that
           the Settlement Class Member wishes to be excluded from the
           Settlement Class; (3) the name of this Action: ‘Esposito et al. v. Cellco
           Partnership d/b/a Verizon Wireless’; and (4) the Settlement Class
           Member’s original signature. In addition, for the request for exclusion
           to be effective, the sender’s mailing address as reflected in the request
           for exclusion and on the mailing envelope itself must match the mailing
           address associated with the Settlement Class Member’s Verizon
           account. Requests for exclusion furthermore must be made on an
           individual basis; ‘mass,’ ‘class,’ or other purported group opt outs are
           not effective…The Settlement Administrator shall promptly after
           receipt provide copies of any requests for exclusion, including any
           related correspondence, to Settlement Class Counsel and Verizon’s
           Counsel. Any Settlement Class Member who does not submit a timely



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             and valid request for exclusion as set forth in this paragraph and in the
             Settlement Agreement shall be bound by all subsequent proceedings,
             orders, and judgments in this Action, including, but not limited to, the
             Release as defined in the Settlement Agreement, regardless of whether
             the Settlement Class Member has any pending claims or causes of
             action against Verizon.”

         For reasons beyond understanding, Mr. Murphy appears to have failed to notify or

 encourage his purported clients to follow this opt-out procedure, given that only 122 persons

 have thus far requested that they be excluded from the class (Angeion Declaration at Paragraph

 6), and given that only 1 of those 122 opt-outs corresponds to a person whom Mr. Murphy has

 claimed is his client. Id. at Paragraph 8. 3 In short, despite Mr. Murphy’s claims that he represents

 9,970 clients who want to opt out of the proposed settlement and class, only one of those

 purported clients has even attempted to do so. Mr. Murphy’s papers offer no explanation for why

 this is the case. 4

         Instead, Mr. Murphy now moves to have his purported 9,970 clients intervene as parties

 in this class action, for the sole stated purpose of then opting them all out of the class; something

 they can already do without any intervention if they simply follow the opt-out procedures the

 Court approved in its December 15, 2023 Order. This entire exercise is unnecessary. If Mr.

 Murphy’s purported clients do want to opt out, they should follow the opt-out procedures already

 set forth in Paragraph 14 of the Court’s December 15, 2023 Order. If Mr. Murphy wants his

 purported clients to exclude themselves from the class, he should advise them to follow those


 3
  Specifically, the settlement administrator ran a database query and found that a person with a name and
 state residence that matches one of Mr. Murphy’s four named representative Intervenor clients—Andrew
 Holschen of Missouri—submitted an opt-out request to exclude himself from the settlement pursuant to
 the Court-ordered opt-out process. Angeion Declaration at Paragraph 8.
 4
   Mr. Murphy’s oft repeated claim that his clients are being prevented from filing arbitrations and
 litigating arbitrations by the class settlement does not hold water. Once Mr. Murphy’s clients follow the
 opt-out procedure described in Paragraph 14 of the Court’s December 15, 2023 Order—as Mr. Murphy’s
 own named representative Intervenor client Andrew Holschen of Missouri did with no issue—they are
 free to arbitrate their claims, file their own lawsuit somewhere else, or do anything else they want to do.


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 opt-out procedures—just as Mr. Murphy’s own named representative Intervenor client Andrew

 Holschen of Missouri did. And if Mr. Murphy’s clients choose to disregard his wishes and elect

 to stay in the class—including the 728 of Mr. Murphy’s purported clients who have already filed

 claims to receive their benefits under the settlement—then that it is their choice and right. None

 of this requires an intervention.

 III.   AS A PRACTICAL MATTER, IT IS IMPOSSIBLE TO GRANT THE
        INTERVENTION MOTION BASED ON THE LIMITED INFORMATION MR.
        MURPHY HAS PROVIDED TO THE COURT

        It is submitted that the very first requirement for any type of intervention motion, either

 discretionary intervention or intervention of right, is that the person(s) who seeks to intervene as

 a party must be definitively and positively identified, so that the parties and the Court know

 exactly who is intervening as a party and who is not. That is particularly the case in this certified

 class action.

        Mr. Murphy has filed a motion seeking an order allowing what he now claims are 9,970

 of his clients to intervene in this matter as parties. That recent motion to intervene constitutes the

 very first time Mr. Murphy has seen fit to even provide a list of names of his purported clients to

 Class Counsel or the Court. See Declaration of Stephen P. DeNittis at Paragraph 4. While Class

 Counsel is happy to finally have these names, a bare list of 9,970 names is insufficient for the

 relief Mr. Murphy seeks. He has not provided any type of personally identifying information,

 such as email addresses, mailing addresses, telephone numbers or Verizon account numbers that

 would help distinguish the purported proposed intervenors from other class members who share

 the same name. In other words, Mr. Murphy has failed to provide the very same personally

 identifying information which the Court has already expressly required potential opt-outs to

 provide in Paragraph 14 of the Court’s Order of December 15, 2023.




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        The lack of such personally identifying information in Mr. Murphy’s motion is not an

 abstract or hypothetical problem; it is a very real deficiency and supports why the parties

 implemented the opt-out procedure currently set forth in the Settlement Agreement and why the

 Court’s December 15, 2023 Order required such information in Paragraph 14. The claims

 administrator has already advised Class Counsel that there are numerous instances where

 multiple class members share the same name as one of the purported clients on Mr. Murphy’s

 List of Intervenors. For example, one of the names contained on the List of Intervenors is

 Amanda Davis. The class action settlement administrator has advised Class Counsel that, to date,

 no fewer than 43 different persons named “Amanda Davis” have already filed claims seeking

 payment under the proposed class settlement. See Angeion Declaration at Paragraph 10. And

 there are even more Amanda Davises who were provided with the class notice who have not filed

 claims yet. Which of these numerous Amanda Davises is purportedly seeking to intervene into

 this case? Mr. Murphy has not provided any information to either class counsel or the Court that

 would make such a determination possible. Further examples abound. The claims administrator

 has advised class counsel that 32 different Susan Whites—another name on the List of

 Intervenors—have filed claims for benefits under the proposed class settlement. Id. Likewise, 96

 different David Wilsons—another name on the List of Intervenors—have filed claims for

 benefits under the proposed class settlement. Id. Similarly, no fewer than 12 Allan Millers—

 another name the List of Intervenors—have already filed claims for benefits under the class

 action settlement. Indeed, the claims administrator reports that, even for a relatively unusual

 name on the List of Intervenors like Harvey Baker, there are at least three different Harvey

 Bakers who have already filed claims seeking benefits under the class settlement.




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        These examples highlight why, as filed, Mr. Murphy’s application must be denied on the

 current record. Those absent class members who do not want to be represented by Mr. Murphy,

 and who do not want to intervene, should not be forced to do so simply because they happen to

 share the same name as someone else whom Mr. Murphy now claims is his client. Indeed, the

 consequences could be dire if the Court were to enter the order Mr. Murphy requests, in that

 numerous class members who have already filed claims seeking their benefits under the

 proposed settlement could now be deprived of those benefits, merely because they happen to

 share a name on Mr. Murphy’s list. Thus, it is clear that a mere list of names provided by Mr.

 Murphy, without more identifying information, is insufficient to allow Class Counsel or the

 Court to know precisely who is seeking to intervene as a party and exclude themselves from the

 class and proposed settlement, and who is not. 5 Until Mr. Murphy provides that additional

 information to the Court, his intervention motion cannot be granted.

        Nor is the risk of class members sharing the same name the only problem with Mr.

 Murphy’s List of Intervenors. To the contrary, Mr. Murphy’s list of 9,970 purported clients is

 filled with problems. First, approximately 423 names on the List of Intervenors appear to be

 duplicates. For example, Murphy’s list contains seven Silvia Trujillos, five Patrick J. Wrigleys,

 and four Phyllis Morrisons. See List of Intervenors at Pages 59-60, 70-71. Similarly, the rather

 unusual name of Rowdy Huff appears twice, as does the equally unusual name Rochelle

 Lazarchick. See List of Intervenors (Exhibit 1 to the Affidavit of Evan Murphy in support of

 Motion to Intervene) at Pages 65, 67.




 5
  This fact also highlights the reasons behind the opt-out procedures class members must abide by per the
 Settlement and the Court’s December 15, 2023 Order, including why such opt-outs are required to provide
 personally identifying information and their return address.


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        Nor is that the extent of the problems with the List of Intervenors. At least 73 persons on

 the List of Intervenors do not have a first and last name listed and are instead listed by a single

 name only. These include but are not limited to: “Dawn” (Page 17), “Cherelle” (Page 11),

 “Debby” (Page 18), “Deborah” (Page 18), “Eversole” (Page 24), “James B” (Page 29),

 “Jason” (Page 32), “Linda” (Page 46), “Tracy” (Page 78), “Weiner” (Page 80), and “Vic”

 (Page 79). Even if Mr. Murphy had valid grounds to seek intervention—and as the rest of this

 memorandum demonstrates, he does not—the Court simply cannot sign an order stating that,

 inter alia, “Vic”, “Tracy,” “Debby” and “James B” are now party intervenors in this case.

 Moreover, the fact that Mr. Murphy has not even produced a first and last name for his own

 purported clients again raises questions about whether he has signed retainer agreements with

 these people. If he did, he would clearly know their full names. And if he knew their full names,

 why did he not put them on the List of Intervenors he filed with the Court?

        Further, at least 20 of the entries on the List of Intervenors are obviously businesses. This

 includes, inter alia, “Aquaseal Resurfacing LLC” (Page 4), “Bradford Welding and Truck

 Equipment Inc” (Page 7), “Ck Excavating” (Page 13), “D & M Contractors” (Page 14),

 “Ecofriendly Contractors” (Page 22), and “First Choice Air & Contracting LLC” (Page 24).

 Why is this important? Because businesses are specifically excluded from the class under the

 Court’s December 15, 2023 Order. Thus, businesses clearly have no need to intervene or opt out

 of a class in which they were never included in the first place.

        There are also 61 entries on the List of Intervenors with multiple names, including but not

 limited to: “Arian Riemenschneider/Ariana Woolsey” (Page 4), “Beverly Overton/Beverely

 Knight” (Page 6), “Jane Estes & Robert Parks” (Page 31), and “Kandy Graham and Kandy

 Brown” (Page 39). Again this makes it impossible to tell who is purportedly seeking to intervene




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 in this case and are they even a class member. Is “Kandy Graham and Kandy Brown” one

 person or two? Neither Class Counsel nor this Court knows. If they are two persons, they cannot

 both be class members unless they were both listed on the Verizon bill and both paid the Verizon

 “Administrative Charge.”

          In summary, Mr. Murphy is seeking to have 9,970 of his purported clients intervene in

 this action as parties, with the stated purpose of having these persons thereafter excluded from

 the class and the proposed settlement. Clearly, the bare and deeply flawed list of names he has

 provided as the sole means of identifying such persons is utterly insufficient for the relief he

 seeks.

 IV.      IT IS BLACK LETTER CLASS ACTION LAW THAT INTERVENTION BY
          ABSENT CLASS MEMBERS IS UNNECESSARY WHERE THE PROPOSED
          SETTLEMENT PROVIDES A MECHANISM FOR OPTING OUT OF THE
          CLASS AND/OR FOR OBJECTING

          Mr. Murphy’s papers make clear that he and his purported clients have no objection to

 any of the substantive terms of the proposed settlement. Rather, as described by Mr. Murphy’s

 papers, the sole stated purpose of this attempted intervention is so that Mr. Murphy’s clients can

 then turn around and exclude themselves from the class and the settlement. Indeed, Mr. Murphy

 recently confirmed this in a statement he provided to Reuter’s for a news article that was written

 about the settlement. The article quotes Mr. Murphy as follows: “In an email statement, Evan

 Murphy said he is not trying to disrupt Verizon’s $100 million settlement but wants to protect his

 clients’ right to choose their own strategy and lawyers.” 6




 6
   See Declaration of Stephen P. DeNittis at Paragraph 19; see also
 https://www.reuters.com/legal/legalindustry/column-verizons-100-million-settlement-gets-
 thumbs-down-lawyers-10000-customers-2024-01-22/.


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        But Paragraph 14 of the Court’s December 15, 2023 Order already contains a perfectly

 viable mechanism for allowing any class member to exclude themselves from the class and

 proposed settlement for any reason (including if they want to be represented by Mr. Muphy and

 seek to have their claims arbitrated by him). Indeed, it appears that one of Mr. Murphy’s own

 named representative Intervenor clients, Andrew Holschen of Missouri, utilized the settlement’s

 simple opt-out mechanism and submitted an opt-out request to exclude himself from the

 settlement. See Angeion Declaration at Paragraph 9. Yet Mr. Murphy and the rest of his

 purported clients are not even attempting to take advantage of that opt-out mechanism. Id. at

 Paragraph 7.

        It is black letter class action law that, in such circumstances, intervention by absent class

 members is neither necessary nor appropriate. See Davis v. J.P. Morgan Chase & Co., 775

 F.Supp.2d 601, 605–606 (W.D.N.Y. 2011) (denying intervention by absent class members,

 stating: “Intervention is not necessary here to protect the proposed intervenors’ or other

 class members’ interests, and there are alternatives open to them which would be less

 disruptive to these proceedings and to the interests of the settling parties” and noting “any

 class members who do not want to be bound by the settlement will be given an opportunity

 to opt out and pursue their own claims separately.”); Grilli v. Metropolitan Life Ins. Co., Inc.,

 78 F.3d 1533, 1536-38 (11th Cir. 1996) (denial of motion to intervene was proper based on

 court’s conclusions that proposed intervenors could protect their interest either by opting out of

 the class and litigating separately); In re Warfarin Sodium Antitrust Litigation, 212 F.R.D. 231,

 263-64 (D.Del. 2002) (denying motion to intervene, and noting that “the court provided every

 class member who did not opt out with the opportunity to present argument or evidence of

 the unfairness of the settlement in writing and/or orally at the fairness hearing”); In re




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 Motor Fuel Temp. Sales Practices Lit., 2011 WL 5331678, *2 (D. Kansas Nov. 4, 2011) (Exhibit

 I hereto) (Proposed intervenors “have not shown . . . that their interest may as a practical

 matter be impaired or impeded, because they can protect their interests by opting out of the

 settlement.”); In re DHB Indus., Inc. 2007 WL 2907262, *2 (E.D.N.Y. Sept. 30, 2007) (Exhibit J

 hereto) (The intervenor’s “ability to protect her interest is not impaired. She is a member of

 the class, and she can object to the fairness of the settlement . . . Further, she can opt out

 of the class and bring her own lawsuit.”); Doe v. Cin-Lan, Inc., No. 08-cv-12719, 2011 WL

 37970, at **2-3 (E.D. Mich. Jan. 5, 2011) (Exhibit K hereto) (finding no impairment of putative

 intervenor’s ability to protect interest where putative intervenor could opt out of class); Adams-

 Gillard v. Sedgwick Claims Mgmt. Servs., No. 2:21-cv-02038-SHM-cgc, 2022 U.S. Dist. LEXIS

 58269, at *11 (W.D. Tenn. Mar. 30, 2022) (Exhibit L hereto), denying motion to intervene in

 class action by absent class member where settlement provided opportunity to opt out, stating:

           “Siler has opportunities to protect her interests and the interests of the
           Walker Action putative class. She may opt out of any class certified in
           the Adams-Gillard Action or may object to settlement terms at a future
           fairness hearing. Siler has failed to show an impairment of her ability
           to protect her interests in the absence of intervention.” (emphasis added)


 V.     INTERVENTION SHOULD BE DENIED WHERE IT WOULD CAUSE
        PREJUDICE OR DELAY TO THE EXISTING PARTIES OR CLASS MEMBERS

        It is also well-established that intervention should not be allowed where it would unduly

 delay or burden the rights of the existing parties. See e.g. Atl. Emplrs Ins. Co. v. Tots & Toddlers

 Pre-School Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div. 1990) (“The test is ‘whether the

 granting of the motion will unduly delay or prejudice the rights of the original parties.’”);

 Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998) (with regard to




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 intervention “[t]he test is whether the granting of the motion will unduly delay or prejudice

 the rights of the original parties.”).

         In the context of class actions, courts have recognized that intervention by absent class

 members should be denied where it would cause prejudice or delay to the existing parties. See

 e.g. Davis v. J.P. Morgan Chase & Co., 775 F. Supp. 2d 601, 606 (W.D.N.Y. 2011) (denying

 intervention by absent class member noting that courts have “noted on several occasions that

 ‘jeopardizing a settlement agreement causes prejudice to the existing parties to a lawsuit.”);

 Sorace v. Wells Fargo Bank, N.A., No. 20-4318, 2023 U.S. Dist. LEXIS 158159, at *4 (E.D. Pa.

 Sep. 7, 2023) (Exhibit M hereto) (denying both permissive intervention and intervention of right

 in a class action, stating: “granting the motion to intervene would prejudice the adjudication

 of the rights of the named and unnamed class members and cause undue delay in the

 resolution of this case.”); Gumm v. Jacobs, No. 5:15-cv-41 (MTT), 2020 U.S. Dist. LEXIS

 48324, at *4 (M.D. Ga. Mar. 20, 2020) (Exhibit N hereto) (denying motion to intervene by

 absent class member, stating: “intervention is inappropriate because, to the extent Evans’s

 intervention could affect the Settlement Agreement, it would weaken the quality of the class

 members’ representation and would risk undermining a settlement that is fair, adequate,

 and reasonable.”).

         In the case at bar, such prejudice and delay would clearly occur if Mr. Murphy’s plan

 succeeds. As of today, over 58 million class members have been sent a Court-approved form of

 notice—at a cost of over three million dollars 7—telling them that there will be a hearing on final


 7
   Collectively, Mr. Murphy’s motion papers seek to allow 9,970 persons to intervene as parties in this
 action so these same persons can then stay the final approval of the proposed class action settlement
 indefinitely until all 9,970 of their claims can be arbitrated. If that were to occur, it would require that a
 new class notice be sent out to the 58 million class members, telling them that the final approval hearing
 scheduled for March 22, 2024 (as listed in the last class notice) had been postponed indefinitely. Such a
 new class notice would cost almost three million dollars. Mr. Murphy’s papers do not make any offer to


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 approval of the proposed class action settlement on March 22, 2024 and that, if approved,

 eligible claimants will be getting the benefits described in that notice shortly thereafter. See

 Angeion Declaration at Paragraph 4. To date, 4.1 million class members have already filed

 claims seeking their share of the settlement. Ibid. It is anticipated that many more claims will be

 filed pursuant to that class notice. Yet, along with Mr. Murphy’s motion to intervene, Mr.

 Murphy has also filed an additional motion by the proposed intervenors seeking to stay approval

 of the proposed class action settlement indefinitely until all 9,970 of his purported clients have

 fully concluded their proposed arbitrations with Verizon.

         What Mr. Murphy does not tell the Court is that such a process could take more than a

 century. The arbitration clause in the Verizon customer service agreement requires that, whenever

 24 or more customers are represented by the same attorney, such arbitration claims must be filed

 in batches of ten at a time, and the agreement expressly bars consumers from filing any new

 arbitration claims until all ten arbitrations in the proceeding batch are concluded. See Exhibit C,

 Verizon customer service agreement at unnumbered Page 9: “The remaining cases shall not be

 filed in arbitration until the first ten have been resolved.” Where—as in the case of Mr.

 Murphy and his List of Intervenors—the same lawyer represents thousands of Verizon

 customers, this arbitration process can easily last more than 100 years, because the average time

 stated by AAA to complete one arbitration is a little over six months. Both the federal court in

 California and the New Jersey Appellate Division have already expressly found these facts. See

 Achey v. Cellco P’ship, 475 N.J. Super. 446, 452 (App. Div. 2023) (“Based on the bellwether

 provision [of the Verizon arbitration agreement], DeNittis calculated that plaintiffs would

 be required to wait 145 years to file their claims, until the preceding 2,537 claims brought


 pay for such an additional notice if his intervention and stay are granted. Nor do Mr. Murphy’s papers
 offer any proposal as to who would pay for such an additional notice.


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 by plaintiffs’ counsel have been arbitrated pursuant to the bellwether process.”);

 MacClelland v. Cellco P’ship, 609 F. Supp. 3d 1024, 1040 (N.D. Cal. 2022) (“The provision [of

 the Verizon arbitration agreement] specifically requires that only ten cases may be

 arbitrated at one time and that the remaining cases ‘shall not be filed in arbitration until

 the first ten have been resolved.’ … it would take approximately 156 years to resolve the

 claims of all of Plaintiffs’ counsel’s clients.”). 8 Accordingly, what Mr. Murphy is really seeking

 is intervention by the 9,970 intervenors he claims to represent that could potentially delay the

 final approval of the proposed class action settlement for over 100 years. It is hard to imagine a

 result that would be more prejudicial to the over 58 million class members. To hold these 58

 million class members “hostage” merely so that Mr. Murphy can try to use that extraordinary

 delay of a proposed $100 million settlement as “leverage” to attempt to squeeze a settlement out

 of Verizon for himself and his purported clients 9 is not only prejudicial to the 58 million persons

 in the certified class, it is nothing less than outrageous.


 8
   Mr. Murphy’s papers repeatedly try to create the mistaken impression that he has actually filed 9,970
 arbitrations over the Verizon “Administrative Charge.” He has not. Over the past two years, Mr. Murphy
 has actually filed only ten such arbitrations. He has arbitrated just four of those ten on the merits, and he
 has lost all four. See DeNittis Declaration at Paragraph 21 and Exhibit E thereto. As noted above, the
 Verizon Customer Service Agreement expressly prohibits Mr. Murphy – or any attorney who represents
 more than twenty-four clients – from filing more than ten arbitrations at a time, and it expressly bars any
 more such arbitration claims from being filed until all ten of the preceding arbitrations have concluded.
 Thus, Mr. Murphy has not and cannot file 9,970 arbitrations at once. Instead, he must wait to file ten at a
 time and can only file another ten when the preceding batch of ten is resolved; a process which both the
 New Jersey Appellate Division and the federal court in MacClelland held would take over a century. With
 regard to Mr. Murphy’s clients, the AAA has not rejected or invalidated this 10-at-a-time bellwether
 process, and thus Mr. Murphy’s clients are still subject to it and the potentially decades long delays.
 9
   Nor will this attempted maneuver benefit anyone other than Mr. Murphy himself. As noted previously,
 Mr. Murphy has lost every single one of the arbitrations over the Verizon “Administrative Charge” he has
 litigated before the AAA to date. See DeNittis Declaration at Paragraph 21 and Exhibit E thereto. Thus, it
 is not at all clear that Mr. Murphy’s purported clients will do any better outside the proposed settlement
 than if they remained in the settlement class, even once their arbitrations are eventually able to be filed
 and heard by an arbitrator after the delays due to the 10-at-a-time bellwether provision. Nevertheless, they
 are perfectly free to exclude themselves from the class if they want and may proceed with Mr. Murphy to
 arbitration. They need only follow the opt out procedures laid out in the proposed settlement and the


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 VI.     THE PROPOSED INTERVENORS HAVE NOT SHOWN THAT THE CLASS
         COUNSEL APPOINTED BY THE COURT ARE INADEQUATE TO PROTECT
         THEIR INTERESTS

         One of the requirements for intervention under Rule 4:33-1 is that the proposed

 intervenor must “demonstrate that the ‘[movant’s] interest’ is not ‘adequately represented

 by existing parties’”. Muslim Ummah Tr. v. Husaeen, Nos. A-0130-18T4, A-0271-18T4, 2020

 N.J. Super. Unpub. LEXIS 544, at *22 (App.Div. Mar. 16, 2020) (Exhibit O hereto); White v.

 White, 313 N.J. Super. 637, 640-641 (Super. Ct. 1998) (“intervention should be denied if the

 applicant’s interests are adequately represented by existing parties and/or intervention will

 prejudice the rights of one of the original parties.”); Ciancio v. Ciancio, No. A-4121-04T1,

 2006 N.J. Super. Unpub. LEXIS 1586, at *5 (App. Div. Aug. 31, 2006) (Exhibit P hereto)

 (“when an applicant’s interests are adequately represented by existing parties, intervention

 should be denied.”).

         In the class action context, there is a presumption that the existing class counsel

 appointed by the court to represent the interests of class members is adequate to do so and the

 burden is on the proposed intervening class members to rebut that presumption. See e.g. In re Pet

 Food Prods. Liab. Litig., 629 F.3d 333, 349 n.26 (3d Cir. 2010) (“To overcome the presumption

 of adequate representation, the proposed intervenor must ordinarily demonstrate adversity

 of interest, collusion, or nonfeasance on the part of a party to the suit.”); Davis v. J.P.

 Morgan Chase & Co., 775 F. Supp. 2d 601, 606 (W.D.N.Y. 2011) (“[T]here is a presumption

 that class members’ interests are adequately represented by the settling plaintiffs and their

 counsel, and the burden is on the proposed intervenors to rebut that presumption.”); In re



 Court’s order of preliminary approval. Mr. Murphy simply refuses to instruct or encourage them to do so,
 perhaps because he thinks trying to hold a proposed $100 million settlement hostage gives him more
 bargaining power.


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 Cmty. Bank of N. Va. & Guar. Nat’l Bank of Tallahassee Second Mortg. Loan Litig., 418 F.3d

 277, 315 (3d Cir. 2005) (holding that to overcome the presumption of adequate representation by

 class counsel, “the proposed intervenor must ordinarily demonstrate adversity of interest,

 collusion, or nonfeasance on the part of a party to the suit.”); Bradley v. Milliken, 828 F.2d

 1186, 1192 (6th Cir. 1987):

            “An applicant for intervention fails to meet his burden of demonstrating
            inadequate representation ‘when no collusion is shown between the
            representatives and an opposing party, when the representative does not
            have or represent an interest adverse to the proposed intervenor, and
            when the representative has not failed in its fulfillment of his duty.’”

         In the case at bar, Mr. Murphy has asserted nothing that could conceivably rebut the

 presumption that the class counsel already appointed by this Court is inadequate to protect the

 interests of all class members, including the proposed intervenors. Mr. Murphy does not allege

 there is any collusion between class counsel and Verizon. Unlike Mr. Murphy, 10 Class Counsel

 has actually been engaged in nearly three years of contentious court litigation with Verizon in

 multiple courts over the “Administrative Charge,” culminating, inter alia, in a published,

 precedential New Jersey Appellate Division opinion, a published federal court opinion, a pending

 and fully briefed appeal before the Ninth Circuit Court of Appeals, and a fully briefed, certified

 and still pending case before the New Jersey Supreme Court. As any of these courts can