On Tuesday, September 30, judges on Part G of the Appellate Division will hear oral argument in Esposito v. Cellco Partnership d/b/a Verizon Wireless. The case follows from a $100 million nationwide class action settlement that had required class members who decided to exclude themselves from the settlement and potentially pursue their own litigation against Verizon to opt out individually, and barred mass opt-outs. However, Murphy Advocates, LLC, a Colorado law firm conducted a marketing campaign to create a mass opt-out that attracted about 11,000 class members who responded to Murphy that they wished to opt out.

Verizon and class counsel both contended that the mass opt-out was invalid as violative of the settlement agreement and the product of a misleading marketing campaign by Murphy. The Law Division agreed that Murphy’s website that sought to attract a mass of class members to opt out was “confusing” and “should not have [been] posted.” But the court decided to “honor [the wishes” of those who had responded to Murphy.

Verizon appealed. Among other things, Verizon argues that the Law Division had no power to deviate from the settlement agreement’s ban on mass opt-outs, that Murphy’s website was abusive and misleading, and that instead of permitting the mass opt-out after all the Law Division should have ordered corrective notice to those who had responded to Murphy, along with an opportunity for those persons to choose to stay in the class action and receive its benefits, or to opt out with full and accurate knowledge of the pros and cons of either choice.

In opposition, Murphy contends (among other things) that his clients had responded to him individually, such that there was no “mass opt-out.”  He also asserts that his website was not misleading and that the Law Division did not find it “abusive,” contrary to Verizon’s claim. On the contrary, he says that his website was accurate and beneficial to class members in explaining his view that the class action settlement was inadequate, and that his communications were constitutionally protected by United States Supreme Court precedent.

The briefs on this appeal are available here. The oral argument can be viewed at this link.