JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: Richard F. Engel, DAG (N.J. Bar No. 009401981) Richard J. Hughes Justice Complex 25 Market Street; PO Box 093 Trenton, NJ 08625?0093 Tel: (609) 984?4863 KANNER WHITELEY, L.L.C. Special Counsel to the Attorney General By: Allan Kanner (N.J. Bar No. 033981980) Elizabeth B. Petersen (Pro Hac Vice) 701 Camp Street New Orleans, LA 70130 Tel: (800) 331?1546, (504) 524?5777 Attorneys for Plaintiff SUPERIOR COURT OF NEW JERSEY LAW DIVISION - UNION COUNTY NEW JERSEY DEPARTMENT OF DOCKET NO ENVIRONMENTAL PROTECTION, Plaintiff! consolidated with v. DOCKET NO. L-1650-05 EXXON MOBIL CORPORATION, DGfendant? OPPOSITION To MOTIONS FOR INTERVENTION INTRODUCTION In 2004,, the New Jersey Department of Environmental Protection (?Department? or ?State?), acting in its role as trustee of the natural resources of the State, brought this action. on behalf of the citizens of New Jersey to recover damages to natural resources resulting from the c?scharges of Defendant Exxon Mobil Corp. (?ExxonMobil?) at the Bayway and Bayonne Sites. After years of extremely hard?fought litigation, the parties engaged in armfs length negotiations and agreed upon a Proposed Consent Judgment that would resolve ExxonMobil?s liability for natural resource damages at the Bayway and Bayonne Sites, as well as other ExxonMobil facilities and retail stations within the State. Various entities are seeking to join this case as parties by intervening to oppose the Proposed Consent Judgment. Before the Court are two :motions: the first, filed. by a :number of environmental groups Baykeeper, New Jersey Sierra Club, Clean water Action, Delaware Riverkeeper, Delaware Riverkeeper Network, Environment New Jersey, Natural Resources Defense Council, and New Jersey Audubon (the ?Environmental Intervenors?)) and the second by State Senator Raymond Lesniak (hereinafter referred to collectively as The State submits that none of these Movants has or can meet the requisite standards for intervention, either? as c?f right permissive. Not only is their intervention unwarranted, but it would only serve to complicate and lengthen an already old and. complex 1 The Department will address all motions in this single opposition. case. The State, however, is not opposed to allowing Movants to participate as amicus curiae, moving forward with the oppositions previously submitted serving as the Movants? briefs,2 and allowing these amici to participate in oral argument should the Court find it appropriate. As explained more fully below, the Movants have failed to satisfy the requirements for both intervention as of right under 4:33-1 and permissive intervention. under 4:33?2. The Department has adequately represented the interests of all citizens of New Jersey throughout this litigation as the trustee of the natural resources of the State. Further, Movants have no specific interest in the Proposed. Consent Judgment that sets them apart from the rest of the public, and they have not shown how they' will be directly' impacted. by? entry' of the Proposed Consent Judgment. Allowing intervention would provide no additional benefits and, would, result in increased, delays and complications that would obstruct the Department from obtaining this historic resolution of natural resource damages. Accordingly, the Department respectfully requests that the Motions to Intervene be denied. 2 Accepting the already?filed comments and objections in lieu of additional briefing would permit the Court to keep the schedule previously entered for the settlement approval hearing and prevent any further delay in the proceedings. ARGUMENT I. Movants are Not Entitled Intervention as of Right Movants have failed to satisfy the requirements of 3; 4:33? 1, which are necessary for the Court to grant intervention as of right. 3; 4.33?1 states: Upon timely application anyone shall be permitted TX) intervene iJ1 an action ii? the applicant claims an interest relating to the property or transaction which is the subject of the action and ii; so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant?s interest is adequately represented by existing parties. Because Movants have failed to satisfy these requirements, the motions to intervene must be denied. A.Movants Do Not Have a' Sufficient Interest in the Subject Matter of the Litigation 3; 4:33?1 requires that the movant have an interest? relating to the property or transaction which is the subject of the action.? Atl. Employers Ins. Co. v. Tots Toddlers Pre? Sch. Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div.), certif. denied, 122 N.J. 147 (1990). The asserted interest must be specific to the putative intervenor, capable of definition, and directly affected by the relief sought by the primary parties in the litigation. See Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998).3 Here, Movants? asserted interests meet none of these characteristics. First, Movants cannot demonstrate a sufficient interest specific to them, as the claims at issue in this case inure to the public as a whole. When, as here, the Department brings NRD claims, the Department. acts on loehalf (If all citizens of l?ew Jersey. That Movants feel strongly about and. are active in protecting New Jersey?s environmental resources is not in doubt, but in terms of this lawsuit and the Proposed Consent Judgment to resolve it, there is nothing that sets Movants apart from the rest of the public. Further, Movants as organizations and an elected representative have ?nothing to lose or gain based on the outcome of the settlement,? and thus, ?cannot make the required showing'cxf intervention an; of right.? Sutter XL Horizon Blue Cross Blue ShieLj of New JErsey, 406 N.J. Super. 86, 106?107 (App. Div. 2009) (affirming trial court?s denial of intervention to medical societies seeking to intervene, finding that they did 3 3; 4233?1 and 4:33?2 follow Federal Rules of Civil Procedure 24(a) and respectively, verbatim. Thus, New Jersey courts often look to federal law to assist in their intervention analysis. See Allstate N.J. Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 254?55 (App. Div. 20ll) (noting that 4233?1 tracks Federal Rule of Civil Procedure 24(a) verbatinl and looking to federal law to assist in its analysis); Local Banking Prods., Inc. v. Westfield Rental Mart Inc., No. 2014 WL 2807536, *9 n.5 (N.J. Super. Ct. App. Div. June 23, 20l4) (?We observe Rule 4:33?2 mirrors Federal Rule of Civil Procedure 24(b), allowing consideration of federal authority to aid our E. Petersen Certification, EX. A. Pursuant to copies of this unpublished and other unpublished opinions referred to herein have been served upon the Court, Defendant, and the Movants, and counsel is not aware of any other relevant unpublished opinions. not have an interest in the subject matter of the action because the societies were not acting on behalf of their own interest, but rather on behalf of their members). Movants? alleged interests are also ill?defined and inconsistent. For example, Environmental Intervenors assert an interest in this litigation claiming that Exxon?s pollution bars their members from engaging in activities they would otherwise enjoy. See, D. Mans Cert. $8.4 Those members, even within a single group, have varying interests and concerns. One member?s interest in bird watching, for example, may conflict with another member?s interest in recreational activities that may interfere with bird populations. Thus, the alleged interest on behalf (If the Hembers if; neither unitary Inn: sufficiently concrete for the Court to grant intervention as of right. Asserted interests of Nbvants are otherwise vague, as in the case of Senator Lesniak, who merely states that he is ?particularly well situated? to represent the interests of those residents living near the Bayway or Bayonne Sites, without further articulating what those interests are other than what he suggests is a general objection to the Proposed Consent Judgment. Although Senator Lesniak?s certification states that some of his constituents have personally experienced detrimental 4 Similarly, Senator Lesniak seeks to intervene on behalf of residents in the -cities of Linden and Elizabeth and other citizens who have signed his petition opposing the Proposed Consent Judgment. See R. Lesniak Cert. $12. effects from the releases and discharges of hazardous substances at these sites, it is not clear how that will be impacted by the Proposed Consent Judgment, given that the agreement does not in any way diminish ExxonMobil?s obligations to remediate the sites. It is also unclear and wholly speculative how the Movants? alleged. interests will be impacted. by entry" of the Proposed Consent Judgment. Unlike in Kleissler v. U.S. Forest Service, a case in which the lawsuit could have impacted the intervenors? ability to receive federal grant money directed to them pursuant to state law if r?aintiffs were granted the injunctive relief requested, thereby impacting the spending of the school districts and municipalities seeking to intervene,5 Movants here do not have any direct interest that will be substantially impacted by the entry of the Proposed Consent Judgment. Movants claim that the Proposed Consent Judgment does not provide sufficient funds for restoration at the ExxonMobil sites and does not require the Department to spend any of the settlement funds on restoration at all. Movants fail, however, to show how these indeterminate concerns will at all affect their alleged interests. For example, Movants have claimed an interest in recreational activities generally throughout the State, including bird watching. At trial, an ExxonMobil expert 5 See Kleissler, supra, l57 E;3d at 972. witness claimed. that many" birds were observed. at the Bayway site. Trial Tr. 7/22/14 (T. Ginn Cross) 75:7?10. The same witness also admitted that birds find garbage dumps to be attractive nuisances. Trial Tr. 7/10/14 (T. Ginn Cross) 185:19? 22. The Department?s proposed restoration projects at the Bayway and Bayonne sites were never intended for direct human use, as they would be completed on private property. Trial Tr. 4/29/14 (J. Sacco Direct) 9:1?18. Thus, the Movants are merely speculating as to what birds would be present at the sites after implementation of ea restoration plan, how that aggregation is different from what is there now, and whether that delta would in fact be desirable to an 'unidentifiec1 bird ?watching membership. The Proposed. Consent Judgment is t1) be evaluated kn; the Court based on a monetization of the claim. How the funds will be spent now or in the future and how, if at all, the funds will be integrated with on-going site remediation projects, will be decided by the Legislature and the Executive Branch. As stated above, the Proposed Consent Judgment in IN) way diminishes ExxonMobil?s remedial obligations at any of the sites. ExxonMobil remains responsible for funding the remediation of all of the sites to applicable standards.6 As 6 Where the Department felt that those standards were not sufficient, at sites where MTBE is present, the State preserved. its NRD claims against ExxonMobil. such, Movants do not have a sufficient interest in the current litigation to allow for intervention. 13.The Movants? Alleged Interest is Adequately Represented by the State ?When a state is a party to a suit involving a matter of sovereign interest, it is presumed to represent the interests of its citizens.?7 Here, the Department has brought this case in its role of trustee of the natural resources of the State and on behalf of the people of New Jersey. The trustee has adequately represented the beneficiaries? interests throughout the entirety of t??js case, both ill litigation e?ui settlement negotiations? Movants do not dispute that the State has been a zealous advocate on the public?s behalf; they simply disagree with the settlement amount, but they have advanced no evidence that the Department reached the proposed settlement for any reasons other than. that ii: considered. this resolution i1) be the State?s best interests. The Department?s role as the trustee of the natural resources cm? the State ii; established t3? law and.jjs based in part on the Department?s expertise in environmental protection. The iLegislature Inns charged i?ue Department. with the responsibility to "formulate comprehensive policies for the 7 Del. Valley Citizens? Council for Clean Air v. Com. of Pa., 674 ?;2d 970, 973 (3d Cir. 1982) (Citing C. Wright A. Miller, Federal Practice Procedure ?l909, at 528-29 (1972)). conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State." N.J.S.A. l3le?9; In 1K3 Adoption (If N.J.A.C. 420 Super. 552, 574 (App. Div.), certif. denied, 208 597 (2011).8 The Commissioner of the Department is the designated natural resource trustee for the State of New Jersey and its citizens,9 and the Department?s Office of Natural Resource Restoration represents the Commissioner in that capacity. In New Jersey, the Commissioner of the Department of Environmental Protection is the designated trustee charged with the duty of administering and protecting the State's natural resources. The Department's Office of Natural Resource Damages [now represents the Commissioner in this capacity and coordinates with the other trustees. Dep?t Envtl. Prot. v. Exxon Mobil Corp., 393 N.J. Super. 388, 394 (App. Div. ?The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in the trust corpus.? State v. 8 See also Spill Act, N.J.S.A. State is the trustee, for the benefit of its citizens, of all natural resources within its 9 N.J. Exec. Order No. 192 (1988) (Kean, N.J. Exec. Order No. 23 (1994) (Whitman, N.J. Exec. Order No. 96 (1999) (Whitman, C.). See also Plf?s Post?Trial Brief (Nov. 25, 2014), part II.B (?The Department is Charged with the Management, Protection and Restoration of the State?s Natural Resources?). 10 Jersey Cent. Power light, 125 N.J. Super. 97, 103 (Law Div. 1973), aff?d 133 N.J. Super. 375 (App. Div.), certif. granted 68 N.J. 161 (1975), rev?d on other grounds, 69 N.J. 102 (1976) (?The notion that lands are to be held in public trust, protected and regulated. for the common use and benefit, is incompatible with the concept of Marsh v. N.J. Dep?t of Envtl. Prot., 152 N.J. 137, 145 (1997) (?Although the DEP has continued its managerial role (under which it must quickly deploy' entrusted. public funds to restore the environment and abate damages the discharge of hazardous substances), it has assumed a second role, a defensive role, as keeper of the public purse. DEP must attempt to fulfill both of these roles in the context of complex environmental cleanups and 51 finite source of cleanup funds.?) This fiduciary obligation cannot be delegated. Trustees of Rutgers Coll. in it J. v. Richman, 41 N.J. Super. 259, 288 (Ch. Div. 1956). No Movant has disputed the trustee?s expertise in this natural resource damage. matter. In addition, no Movant has contested that the Department is vested with discretion in this matter. Further, no Movant has identified, a failure of the Department to vigorously pursue the claims in this matter. The Movants simply disagree with the Department?s ultimate exercise of its discretion to resolve the case, a fact that is not sufficient to justify intervention. 11 The general goal of the trustee ?to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in the trust the same goal as the Movants? organizations, who claim to advocate for environmental preservation, protection and restoration of New Jersey?s natural resources.12 ?[A]dequate representation is presumed when the would?be intervenor shares the same ultimate objective as a party to the lawsuit.? Great Atl. Pac. Tea Co., Inc. v. Town of E. Hampton, 178 F.R.D. 39, 42 (E.D.N.Y. 1998). For Movants to show that their interests are not being adequately represented by the trustee, they must show ?proof of collusion between the representative and an opposing party, if the representative has or represents some interest adverse to that of the petitioner, or fails because of nonfeasance in his duty (IE representation.? Kind XL Markham, '7 F.R.D. 265, 266 (S.D.N.Y. 1945) (internal quotations omitted); see also Del. Valley Citizens? Council for Clean Air, supra, 674 at 973 (?Representation_ is generally considered adequate if no collusion is shown between the representative and an cgposing party, if the representative does not represent an interest adverse to the proposed intervenor and if the representative has 11 Jersey Cent. Power Light, supra, 125 N.J. Super. at 103. 12 See D. Mans Cert. 15; J. Tittel Cert. 15?6; D. Pringle Cert. 319; M. van Rossum First Cert. 16; D. O?Malley Cert. E3. 12 been diligent in prosecuting the There is absolutely no evidence of collusion here, nor do Movants assert an inability for the Department to fulfill its duty to represent the citizens of the State in this case. Special Counsel, together with the Attorney General?s office and the Department, vigorously and successfully litigated the case on behalf of the State and its citizens for more than 10 years, culminating in a very contentious 66-day trial. The Attorney General?s office adequately represented interests of the public throughout settlement negotiations with ExxonMobil. There is IN) evidence of collusion. between. the Department. and ExxonMobil; indeed, Movants do not even contend otherwise, nor could they. Because the public?s interests are adequately represented by the State, Movants fail to satisfy this requirement of 4:33~1 and intervention must be denied. (3.Movants? Attempt to Intervene is Not Timely ?An essential prerequisite to intervention is timeliness, which should be equated to diligence and promptness. One who is interested in pending litigation should not be permitted to stand on the sidelines, watch the proceedings and express his disagreement only when the results of the battle are in and he is dissatisfied.? Twp. (1f Hanover XL Twp. (Hf Morristown, 118 N.J. Super. 136, 143 (Ch. Div. 1972). Here, Movants have ?stood on the sidelines? as the Department has litigated this case for 13 more than 10 years,u and only now, at this late juncture in the litigation. and lacking' the Department?s detailed. knowledge of the proceedings, seek to challenge the State?s use of its legislatively?delegated discretion in reaching a reasonable, indeed historic, resolution. The Court has the discretion to determine the timeliness, under all of the circumstances, of the intervention application, and may deny the application if deemed untimely. See State v. Lanza, 39 N.J. 595 (1963); ACLU v. Hudson Cnty., 352 N.J. Super. 44 (App. Div.), certif. denied 174 N.J. 190 (2002). Here, Movants assert that intervention is sought only for the limited purpose of opposing the Proposed Consent Judgment. Movants cite to the case warner Co. V. Sutton, 270 N.J. Super. 658 (App. Div. 1994), where the court found that intervention after final judgment was allowed if necessary to preserve some right that cannot otherwise be protected. Here, allowing intervention at this late time in the litigation is not necessary to preserve any' of the Movants? rights, and. thus, there is nothing that warrants allowing intervention. at this late period of the litigation. Movants have been granted the opportunity to express their concerns with the Proposed Consent Judgment through. the jpublic :notice and. comment jprocess. The The parties engaged. in extensive and. costly fact and. expert discovery, briefed countless issues and tried the case. 14 issues raised in the Consent Judgment are not new to the Movants, as this case has been proceeding for more than 10 years. With respect to the sites not included within the original litigation, the Movants have failed to raise any concern with the Department's handling of potential NRD claims at those sites at any? point prior to entry' of the Proposed Consent Judgment. Given the status of this case as well as its posture, the intervention requests are simply untimely. D. Movants have Failed to Show an Inability to Protect their Interest Without Intervention Movants have not attempted to, nor could they, Show that they have satisfied the fourth factor that is necessary for the Court 11) grant intervention as (if right. Movants filed comments opposing ?the settlement. DEF ihas reviewed. and. will respond to those comments in a formal document. No additional measures are needed in order to protect their alleged interest. This case is unlike the situation in Chesterbrooke Limited Partnership v. Planning Board of Township of Chester, 237 N.J. Super. 118 (App. Div. 1989), in which the court held that intervention was appropriate where intervenors? interests could not otherwise be protected without intervention. Thus, Movants are not entitled to intervention as of right. 15 II. M0vants Do Not Satisfy the Requirements for Permissive Intervention As an alternative to intervention as of right, Movants also seek permissive intervention under 4:33?2. However, Movants do IMN: meet the requirements for permissive intervention. 3; 4.33?2 states: Upon timely application, anyone may be permitted ix) intervene jJ1 an action :tf the claim or defense and the main action have a question of law or fact in common. When a party in an action relies for ground of clainl or defense upon, any statute or executive order administered by 21 state or federal governmental agency or officer, or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the agency or officer upon timely application may be permitted. to intervene in 'the action. In exercising its discretion the court shall consider whether the intervention, will unduly delay or prejudice adjudication of the rights of the original parties. The factors to be considered by the Court in determining whether to grant permissive intervention include ?the promptness of the application, whether or not the granting thereof will result in further undue delay, whether or not the granting thereof will eliminate the probability of subsequent litigation, and the extent to which the grant thereof may further complicate litigation which is already complex.? Am. Civil Liberties Union of N.J., Inc. v. Cnty. of Hudson, 325 N.J. Super. 44, 7O (App. Div. 2002) (citing Pressler, Current N.J. Court Rules, cmt. on l6 R. 4:33?2 (2002)). The Court?s determination of 51 permissive intervention motion is within its discretion and is subject to the abuse of discretion standard. on review. Asbury' Park XL Asbury Park Towers, 388 N.J. Super. 1 (App. Div. 2006). Granting Permissive Intervention 'Would. Result in Further Undue Delay The Department has fought for more than 10 years to reach a resolution in this case and should. not now be subjected to further, unnecessary delay that would. potentially' impede any recovery. Granting intervention would. provide no meaningful benefits to the Movants that they are not already privy to in this litigation. Denial of intervention does not affect Movants? right to be ?heard. Movants were allowed sufficient time to submit public comments, and each has done so.M The Department has reviewed the filed. comments of all objectors, including those of the Movants. The Court has been supplied all of these comments, and will ultimately do the same. Should the Court wish to hear from these persons and organizations at oral argument, the State has no objection to their participating as amici. Thus, all Federal courts reviewing objections to proposed environmental consent decrees have said that the right to be heard means the right to file papers, not necessarily to have a formal hearing. See, United States v. Metro. St. Louis Sewer Dist. (MSD), 952 1040, 1044 (8th Cir. 1992)( is within the sound discretion of the trial court to decide whether an evidentiary hearing is necessary before ruling on a proposed consent United States v. Union Elec. Co., 132 ?43d 422, 430 (8th Cir. 1997) (finding that the district court did not abuse its discretion in denying a request for a evidentiary hearing). l7 comments and objections will be considered by the Court prior to determining whether or not to approve the settlement; there is no need for additional briefing or arguments from the Movants. Further, any" discovery that Movants may seek if granted intervention would produce no new information not already accessible to the Movants. The Department has made available to the public its files on the sites, and any information regarding the settlement negotiations is protected by the attorneymclient and deliberative process privileges. Therefore, the delays that would. result from. granting' intervention. would 1x3 unwarranted, and permissive intervention should be denied. 13.Mbvants? Application for Permissive Intervention was not Prompt As with 4:33?1, the timeliness 'of the motion to intervene will be considered in light of the purposes for which intervention is sought. For the reasons discussed in the context of intervention as of right, Movants? attempt to join this case at this late stage of the proceeding is not timely. Cases discussing ?timeliness in. the context of :permissive intervention also support the finding that Movants? application to intervene is untimely. In Sutter v. Horizon Blue Cross Blue Shield of New Jersey, supra, the Appellate Division held that the trial court did not err in denying permissive intervention to medical societies and affirmed. its decision. 406 N.J. 18 Super. 86, lO6?l07 (App. Div. 2009). In assessing ijna trial court?s denial of permissive intervention on the basis that the medical societies did not move to timely Appellate Division quoted the trial court: With respect to the application, 11MB societies THEME moved an: a promptness of the very late date. The parties have agreed to a settlement. Notice has been issued. to the class members, and. a date for a fairness hearing has been set for next week. The courts have recognized that once parties have invested time and. effort in settling the case, it would be prejudicial to allow intervention [I]ntervention after a proposed settlement has been reached, would worthless all of the painstaking negotiations. render parties' This litigation. began over four years ago and. has received.:much attentionJ Societies and the counsel who practice exclusively as attorneys [for] health professionals most likely were aware of this litigation in the past four years, could have moved to intervene at some point if they're truly concerned about the course of the Clearly the being represented by the plaintiff firm litigation. doctors involved could certainly have found out the status of the litigation or found out in discovery what was going on. now add the societies as new parties, they will only However, if the court will serve to cause delay and increase the probability of subsequent litigation. l9 intervene, the [lbid; (emphasis added).] Just as in the Sutter case, Movants have not acted in pursuing permissive intervention. The present litigation began more than 11) years ago. The parties invested countless hours and resources in reaching the proposed settlement. To allow a non?party to intervene at this late juncture of an already case would ?render worthless all of the parties? painstaking negotiations? and would only further delay resolution of this already drawn?out litigation. To the extent Movants assert that the ?necessity? for intervention just surfaced with the publication of the Proposed Consent Judgment, this argument should be rejected. In essence, Movants do :not dispute the adequacy' of .representation lax the State j11 this matter, they just dispute one (Hf the decisions made by' the Inore than. adequate representatives that have the benefit of particularized experience, legislatively?assigned broad discretion, as well as superior knowledge of the legal and factual circumstances of the case. CL Granting Permissive Intervention will Not Eliminate the Probability of Subsequent Litigation Movants have failed to show that allowing them to intervene in the current litigation. will eliminate the probability of subsequent litigation. This is not like the case of an uninsured ?motorist, where it is :necessary' for that party ?to 20 intervene in its insured?s action against the third?party tortfeasor in order to avoid relitigation of plaintiffs? claims for damages. See, Ziger v. Gen. Accident Ins. Co., 144 N.J. 327, 340?41 (1996). The NRD claims brought under the Spill Act at issue in the Proposed Consent Judgment may' only be brought by the trustee; thus, there is no risk that Movants will bring subsequent litigation for any related or unresolved claims. Cf. Monsanto Co. v. Alden Leeds Inc., 130 N.J. Super. 245 (Law Div. 1974) (finding that denying intervention. would cause risk of subsequent litigation where the claims between the existing parties would not adjudicate what would potentially be the largest portion of damages at issue). EL Granting' Permissive Intervention.'Would. Further' Complicate the Litigation, Which is Already Complex If granted intervention, Movants would not provide any meaningful assistance to the parties in the case or to the Court. Rather, Movants? intervention would only delay any recovery in the matter and cause procedural complications, while failing to provide any special expertise or background that would be any' more pertinent to the Court?s decision as to whether it should approve the Proposed Consent Judgment than the comments and objections they already have submitted. When an intervenor ?merely underlines issues already raised by the pmimary parties,? intervention shouhi be denied. Great 21 Atl. Pac. Tea Co., supra, 1998 ?g 97826 (denying the permissive intervention. motion because the movants sought to insert collateral issues while further providing no help in resolving the central issue). Here, Movants assert that they will be able to provide ?adversarial sharpness? to the Court in showing? that ?Exxon?s principal legal arguments are weak or wrong." Motion i1) Intervene km? Environmental lntervenors, p. 15-16. The State has previously raised all of the weaknesses in ExxonMobil?s arguments throughout ll years of litigation, including a 66wday trial. There is nothing that Movants could add that has not been previously briefed or argued before this Court. Thus, to permit intervention would only serve to unnecessarily complicate this case. CONCLUSION For these reasons, the State respectfully requests that this Court deny Movants? requests for both intervention as of right and jpermissive intervention. However, in EH1 effort to further satisfy the Movants? desire to participate in the settlement approval process, the State does not object to the Court accepting the papers previously filed by the Nbvants as amicus briefs and permitting Movants oral arguments should the Court find that it is necessary. 22 Dated: July 6, 2015. Respectfully Submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street, PO Box 093 Trenton, NJ 08625?0093 Tel 609?984?4863; fax 609?984?9315 Attorney for Plaintiff By: MGKM Richard F. Engelf Deputy Attorney General Allan Kanner, Esq. Elizabeth B. Petersen, Esq. Allison M. Shipp, Esq. KANNER WHITELEY, L.L.C. 701 Camp Street New Orleans, LA 70130 Tel 504~524~5777; fax 504?524?5763 Special Counsel to the Attorney General By: Elizabeth B. Petersen, Esq. 23 Dated: July 6, 2015. Respectfully Submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street, PO Box 093 Trenton, NJ Tel 609?984~4863; fax 609?984?9315 Attorney for Plaintiff By: Richard F. Engel, Deputy Attorney General Allan Kanner, Esq. Elizabeth B. Petersen, Esq. Allison M. Shipp, Esq. KANNER WHITELEY, L.L.C. 701 Camp Street New Orleans, LA 70130 Tel 504?524?5777; fax 504?524?5763 Spec' ounsel to the Attorney General By: Elizabeth etersen,/Esq. 23 CERTIFICATE OF SERVICE I hereby' certify? that on 'this 6th. day' of July, 2015, I caused to be served a copy of the above and foregoing upon all counsel of record by electronic transmission and Overnight Delivery, properly addressed and postage pre?paid. ?w?a Elizab?th/B. Petersen, Esq. 24 JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: Richard F. Engel, DAG (N.J. Bar No. 009401981) Richard J. Hughes Justice Complex 25 Market Street; PO BOX 093 Trenton, NJ 08625~0093 Tel: (609) 984m4863 KANNER WHITELEY, L.L.C. Special Counsel to the Attorney General By: Allan Kanner (N.J. Bar No. 033981980) Elizabeth B. Petersen (Pro Hac Vice) 701 Camp Street New Orleans, LA 70130 Tel: (800) 331?1546, (504) 524m5777 Attorneys for Plaintiff SUPERIOR COURT OF NEW JERSEY LAW DIVISION UNION COUNTY NEW JERSEY DEPARTMENT OF DOCKET NO ENVIRONMENTAL PROTECTION, Plaintiff? consolidated with V. DOCKET NO. EXXON MOBIL CORPORATION, DGfendant~ CERTIFICATION OF ELIZABETH B. PETERSEN IN SUPPORT OF OPPOSITION TO MOTIONS FOR INTERVENTION I, E1izabeth B. Petersen, Of full age do hereby certify as follows: 1. I am an attorney at law Of the State of Louisiana, and in the law firm. of Kanner' Whiteley, L.L.C., counsel for Plaintiff in the above?captioned matter. 2. I applied for and was granted pro hac vice status in this litigation. on July 8, 2005, under my former name: Elizabeth B. Cowen. 3. I make this Certification. in connection. with Plaintiff?s Opposition to Motions to Intervene, and I am fully familiar with the facts as certified herein. 4. Attached hereto as Exhibit A is a true and correct copy of Local Banking Products, Inc. v. Westfield Rental Mart No. 2014 WL 2807536 (N.J. Super. Ct. App. Div. June 23, 2014). I certify that the foregoing statements made by me are true. I understand that if the foregoing statements made by me are willfully false, I am subject to punishment. Elizabeth B. Petersen Dated: July 6, 2015. EXHIBIT Local Baking Products, Inc. v. Westfieid Rental Mart, Inc., Not Reported in A.3d (2014) 2014 WL 280?536 2014 WL 2807536 Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of New Jersey, Appellate Division. LOCAL BAKING PRODUCTS, INC, individually and as the representative of a class of similarly situated persons, Plaintiff?Appellant, v. WESTFIELD RENTAL MART, INC., d/ a Party Stop Costume Corner, a a, West?eld Rental Mart, Inc, Defendant, and Farmers Insurance Company of Flemington, Argued Jan. 23, 2014. Decided June 23, 2014. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. Attorneys and Law Firms Andrew T. Fede argued the cause for appellant (Archer Greiner, P.C., attorneys; Mr. Fede, on the briefs). Paul Piantino, argued the cause for respondent (White and Williams, LLP, attorneys; Mr. Piantino, of counsel and on the brief; Geoffrey F. Sasso and Theo Tsakalis, on the brief). Before Judges and LIHOTZ. Opinion PER CURIAM. *1 Plaintiff Local Baking Products, Inc. (Local Baking) ?led a class action complaint on its behalf and all others who received unsolicited facsimile transmissions from defendant West?eld Rental Mart (Rental Mart), in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. 227 (the underlying class action litigation). Following the entry of a consent judgment between Local Baking and Rental Mart, Farmers Insurance Company of Flemington (Farmers), Rental Mart's insurer under a Business Owner's Policy, moved to intervene in the underlying class action litigation. The trial court granted Farmers' motion allowing permissive intervention and also decertified the class of plaintiffs relying on this court?s opinion in Local Baking Products, Inc. v. Kosher Bagel Munch, Inc, 421 NlSuper. 268 (App.Div.), certif denied,209 NJ. 96 (2011). Thereafter, the judge dismissed Local Baking's complaint. Local Baking appeals from that order, arguing Farmers' request to intervene was erroneously granted as it was untimely and the ?nal judgment was unjusti?ably vacated. Local Baking also challenges the application of the Kosher Bagel holding. After analyzing the unique facts of this matter, we reject Local Baking's arguments and af?rm the order granting permissive intervention and decertification of the class. However, we reverse the order dismissing Local Baking?s complaint with prejudice. Before addressing the merits of the issues presented on appeal, we recite the undisputed facts and procedural history surrounding the underlying class action litigation and a related declaratory judgment action initiated by Farmers against its insured, Rental Mart. We will also briefly review Local Baking's claims under the TCPA and our holding in Kosher Bagel. On June 5, 2009, Local Baking, individually and on behalf of others similarly situated, filed a complaint in the underlying class action litigation in Essex County. Local Baking alleged Rental Mart violated the TCPA and committed conversion when it faxed two unsolicited advertisements on December 20 and 27, 2005 (junk faxes). The TCPA provides a private right of action to recover damages of $500 per violation when junk faxes are sent. Local Baking's complaint alleged junk faxes were sent to more than thirty-nine others and maintained it was the representative of the putative class of plaintiffs. Rental Mart requested its insurer Farmers to provide a defense under the terms of a Business Owner?s Policy in effect from May 22, 2005 to May 22, 2006. By letter dated June 29, 2009, Farmers disclaimed coverage, asserting the policy excluded coverage for the claim, and it was ?taking no action to protect [Rental Mart] in this legal matter.? Local Baking?s out-of?state counsel submitted a November 9, 2009 demand letter directly to Farmers, seeking tender of the two million dollar policy limits to satisfy the putative plaintiffs? claims. Farmers? counsel responded to the demand letter, advising all written and oral communication must be directed to him, not the client. Emails between the i e, ?w satlaglvNext' 2015 Thomson Reuters. No claim to original US. Government Works. Local Baking Products, Inc. v. West?eld Rental Mart, Not Reported in A.3d (2014) 2014 WL 2807536 attorneys were exchanged in November 2009, wherein Farmers reaf?rmed its prior decision to disclaim coverage. No further communication occurred. *2 On January 7, 2010, Local Baking and Rental Mart entered into a written agreement settling the underlying class action litigation. Rental Mart stipulated it had hired a fax broadcaster, which sent 30,434 unsolicited advertisements to 16,983 persons. The parties agreed to compromise their claims and defenses by consenting to entry of a $14,999,999 judgment against Rental Mart. 1 The terms of settlement also included Local Baking?s agreement ?not to attach, lien or execute against Rental Mart?s existing or after-acquired property or assets to satisfy the judgment, except for and other than proceeds from [Rental Mart]?s insurance policies.? Accordingly, Rental Mart assigned, ?to the Class (represented all of [Rental Mart]'s claims and rights to payments from insurers, including by [Local Baking] and its attorneys), Farmers, under any and all insurance policies issued by Farmers or issued by any other insurers that may cover [Rental Mart] The settlement agreement also contained terms enjoining the rights and binding all members of the putative class. Speci?cally, the agreement stated Local Baking and all members of the class, ?and their successors and assigns have covenanted with [Rental Mart] not to execute on the [j]udgrnent against [Rental Mart], any of its of?cers, directors, employers, successors, assigns or legal representatives? but to pursue collection only against Rental Mart's insurers. On or about January 20, 2010, Local Baking moved for preliminary approval of the underlying class action settlement agreement. A February 5, 2010 order granted preliminary approval of the settlement under the terms set forth in the settlement agreement. That order certi?ed the class, appointed Local Baking as the representative of the settlement class, and designated Local Baking?s attorney as class counsel. The order also set the deadline for class member objections and a ?nal hearing date. See R. 4:32?1 and 2. 2 Farmers was not sent notice of Local Baking's motion or given a copy of the entered order. Notice was thereafter faxed to putative class members. On April 19, 2010, Local Baking sought to amend the complaint by adding Rental Mart's legal name ?West?eld Rental Mart,? rather than simply the business's ?ctitious name as used in the complaint. Final approval of the settlement agreement was granted on April 23, 2010. Further, a ?nal judgment against Rental Mart was entered in the amount of $14,999,999 to be satis?ed only through an insurance recovery paid by Rental Mart?s insurers. The judgment also approved Rental Mart?s assignment of its rights under all insurance policies. Finally, the court retained ?continuing exclusive jurisdiction as to all matters relating to the administration, consummation, enforcement, and interpretation of the [settlement] [a]greement, [the ?nal 0]rder, and the ?nal judgment and any future recovery for the class against [Rental Mart's] insurers.? *3 On or about March 2, 2010, prior to the entry of the ?nal judgment in the underlying class action litigation, Farmers ?led a declaratory judgment action in Hunterdon County under Docket No. against Rental Mart, its of?cer Bruce Campbell, Local Baking, and the putative class members. The complaint acknowledged Rental Mart had submitted a demand for coverage and Farmers sought a judicial declaration that under the policy's terms, Farmers had no duty to defend or indemnify Rental Mart for liability resulting from the TCPA claims in the underlying class action litigation. Moreover, the complaint described and attached a copy of the February 5, 2010 preliminary notice for class action approval, which Farmers alleged contained an invalid assignment of Rental Mart?s rights under the policy. Finally, Farmers requested Local Baking and any putative class members be bound by the declaratory determination. Local Baking and Rental Mart moved to change venue of the declaratory judgment action to Essex County, the venue of the underlying class action litigation. Counsel?s supporting certi?cation attached pleadings ?led in the underlying class action litigation, including the April 23, 2010 ?nal approval of the settlement agreement and judgment. At that time, it was undisputed that class member claims were not processed, paid or resolved and all class members' claims remained pending ?nal determination in the declaratory judgment action. As the parties engaged in motion practice and discovery in the declaratory judgment action, this court rendered its opinion in Kosher Bagelln Kosher Bagel, the plaintiff ?led a class action suit under the TCPA, after the defendant ?had hired an entity known as Business to Business Solutions to transmit a ?blast fax,? advertising [the] defendant's food services to approximately 4649 fax machines.?1d. at 271 (footnote omitted). The trial judge granted the defendant's motion to dismiss the class action for failure to state a claim and entered judgment for the plaintiff for $500. Ibid. On appeal, this court 2015 Thomson Reuters. No claim to original US. Government Works. 2 Local Baking Products, Inc. v. Westfield Rental Mart, lnc., Not Reported in A.3d (2014) 2014 WL 2807536 considered the legal issue presented: whether class actions can be ?led to prosecute private causes of action under the TCPA. Ibid. After expressing ?doubts as to whether [Local Baking] could meet the commonality and typicality requirements of Rule we concluded it could not ?meet ?the more demanding criteria? of predominance and superiority.?lcl. at 280 (quoting Wal?Mart Stores, Inc. v. Dukes, 564 US. 131 SCI. 2541, 2565, 180 L. Ed.2d 374, 405 (2011) (Ginsburg, 1., dissenting)). In doing so, we reasoned ?rst, the statutory award under the TCPA was ?considerably in excess of any real or sustained damages,? as well as ?[t]he cost of litigating for an individual.?ld. at 280~81.Second, we concluded the design and New Jersey's procedures were very conducive to bringing such claims on an individual basis. lbz'd. Highlighting the ease of such litigation, we noted ?the same facts required to prevail on an individual TCPA claim?man unsolicited fax was received from a sender with whom the recipient had no prior business relationshipmare identical to the facts that would have to be proven to merely identify a single class member.?ld. at 281.According1y, we held a class action could not be maintained for claims under the TCPA. 1d. at 271. *4 On February 15, 2012, armed with the Kosher Bagel opinion, counsel for Farmers moved to intervene in the underlying class action litigation and requested an order decertifying the class and dismissing Local Baking?s case. Local Baking opposed the motion, arguing ?nal judgment had been entered nearly two years earlier, which Farmers was well aware of but chose not to challenge. Accordingly, it urged denial of the motion as untimely. On March 16, 2012, without bene?t of oral argument, the trial judge issued an order denying Farmers' motion to intervene as of right, but he granted permissive intervention. Farmers' substantive application was also granted. The judge decerti?ed the class and dismissed the complaint, with prejudice. Local Baking appealed from that order. We summarily reversed as the trial judge's order contained no statement of reasons supporting his conclusionsLocal Baking Prods, Inc. v. West?eld Rental?Mart, Inc, No. A?4494m11 (February 28, 2013) (slip op. at R. 1:741 (mandating the trial judge ?shall by an opinion or written memorandum decision, either written or oral, ?nd the facts and state its conclusions of law? on every motion it has decided by a written order appealable as of right). Remanding the matter to the trial court ?to reconsider Farmer[s?] motion and make ?ndings and conclusions as required by Rule we stated: We also have concerns about the parties? strategies and actions in this case, including [Local Baking] not formally placing [Farmers] on notice of the January 20, 2010 motion to preliminarily approve the settlement, Farmers ?ling a separate declaratory judgment action in another county in March 2010 rather than moving to intervene in the class action litigation, and Farrners? signi?cant delay in ?ling the motion for intervention and class decerti?cation. The trial court had to consider these issues and make speci?c factual ?ndings in order to analyze and balance the elements of permissive intervention, as well as analyze the law and policy considerations of decertifying the class and dismissing [Local Baking's] complaint in total. In the absence of oral argument or any explanation for the judge?s order, we have no idea what, if any, facts or law were considered by the judge in making his determination. [1d, at 14.} On remand and without further proceedings, the trial judge issued a written letter opinion, dated March 20, 2013, in which he stated: [T]he [c]ourt ?rst determined that Farmers had a right to permissive intervention pursuant to .. .Rule 4 33?2. Second, the original action and the declaratory judgment action had issues of both law and fact in question. Third, the Mom?: determined that the motion was timely because neither matter would be ultimately resolved until either the decerti?cation and/or declaratory judgment actions were resolved. Fourth, the [c]ourt determined that additional discovery was not necessary. *5 In light of the [c]ourt?s holding and reasoning in [Kosher Bagel it would be unjust to allow a class action to stand. Therefore, the class is decerti?ed. A review of the terms of the settlement makes it obvious that any recovery by [Local Baking] would not be from [Rental Mart], but would be from [Farmers]. Not allowing [Farmers] to intervene would be inequitable and would allow [Local Baking] to pursue [its] policy without giving [Farmers] an opportunity to defend such an outcome, which would be unjust. Therefore, [Farmers] is allowed to intervene and the claim for conversion is dismissed. 2015 Thomson Reuters. No claim to original LLS. Government Works. 3 Local Baking Products, Inc. v. Westfield Rental Mart, lnc., Not Reported in A.3d (2014) 2014 WL 2807536 Following the motion judge's retirement, a different Law Division judge entered an order on May 6, 2013, memorializing the conclusions reached by the motion judge in his opinion. This appeal ensued. Local Baking seeks reversal of the order allowing Farmers to intervene in the underlying class action litigation, arguing the decision was erroneous. Local Baking maintains Fanners' request was not timely and argues our holding in Kosher Bagel cannot be imposed retroactively. Alternatively, Local Baking seeks reversal of the order of dismissal, arguing the analysis in Kosher Bagel was wrong. Farmers maintains the motion judge's reasoned exercise of discretion must be upheld, contending intervention was warranted because all requirements for permissive intervention were met. Farmers also asserts Kosher Bagel did not change any rule of law, it merely applied the law as it exists. 3 The fact sensitive nature of a decision to grant or deny permissive intervention pursuant to Rule 4:33e2 ?vests considerable discretion in the trial court.?Evesham wp. Zoning Ba?. ofAch?ustment v. Evesham Twp. Council, 86 NJ. 295, 299 (1981). Accordingly, a trial court's determination of the appropriateness of permissive intervention and whether the requirements of the rule are met lies within the sound discretion of the trial judge and will not be disturbed absent a clear abuse of discretion. City of Asbury Park v. Asbury Park Towers, 388 NlSuper. 1, 3?4, 12 (App.Div.2006) (upholding the trial court's denial of a redeveloper?s request for permissive intervention in a condenmation proceeding where the ?potential for undue delay or prejudice to the rights? of the plaintiff would result were intervention permitted). In de?ning judicial discretion we have said: ?[J]udicial discretion? is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the Spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. [Smith v. Smith, 17 NlSuper. 128, 132 (App.Div.1951), (citations omitted), certif. denied,9 NJ. 178 (1952).] CC An abuse of discretion occurs when the determination could not reasonably have been reached on suf?cient credible evidence present in the or the judge ?failed to consider all of the controlling legal principles Clark v. Clark, 429 N.J.Super. 61, 72 (App.Div.2012) (quoting Gonzalez?Posse v. Ricciardulli, 410 NlSuper. 340, 354 (App.DiV.2009)). *6 Here, the motion judge recognized an application for permissive intervention must be Viewed liberally. Zirger v. Gen. Accident Ins. Co., 144 NJ. 327, 341 (1996); State by Bonrempo v. Lanza, 39 NJ. 595, 600 (l963), cert. deniea?,375 US. 451, 84 SCI. 525, 11 L. Ed.2d 477 (1964). He also considered the requirements of Rule 4:3 3?2, which states in pertinent part: Upon timely application anyone may be permitted to intervene in an action if the claim or defense and the main action have a question of law or fact in In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Under the rule, permissive intervention should be allowed when a movant demonstrates a common issue of law or fact is presented and that granting the request will not unduly delay the action. Consideration must evaluate the promptness of the application, the prejudice to the responding parties, and whether granting the request will eliminate the possibility of further litigation or the extent to which granting the motion may further complicate litigation which is already complex. See State Farm v. Zurich Am. Ins. Co., 62 NJ. 155, 165 (1973); Grober v. Kahn, 88 NJSuper. 343, 361?62 (App.Div.1965), rev?d on other grds,47 NJ. 135 (1966). Local Baking maintains Farmers' request was untimely. It asserts that even if Farmers has a valid interest in the underlying class action litigation its decision to wait nearly two years to assert that interest, despite actual notice of the final judgment and ample opportunity to act, requires Farmers' motion be denied. In this light, Local Baking argues the trial judge's decision to allow intervention represented an abuse of discretion. Rule 4:33?2 starts with the words, ?[u]pon timely application,? making promptness in asserting the request to intervene essential. See Twp. of Hanover v. Town of Morristown, 118 NlSuper. 136, 143 (Ch. Div.) (?An 2015 Thomson Reuters. No claim to original US. Government Works. 4 Local Baking Products, inc. v. West?old Rental Mart, lnc., Not Reported in A.3d (2014) 2014 WL 2807536 essential prerequisite to intervention is timeliness, which should be equated with diligence and 121 NJSuper. 536 (App.Div.l972), certif. denied,62 NJ. 427 (1973). Whether a motion to intervene is timely is not exclusively a question of the amount of time that has elapsed since the action began. When examining the application, a court should consider the conduct of the proposed intervener along with ?the purpose for which intervention is Co. v. Sutton, 270 NJSuper. 658, 663 (App.Div.i994) (internal quotation marks and citation omitted). Also important is any resultant prejudice to the parties involved in the iitigation. See Zirger, supra, 144 NJ. at 341 (holding permissive intervention requires a trial court to determine ?whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties?). *7 Local Baking argues the motion judge abused his discretion in granting Farrners' application to intervene two years after entry of ?nal judgment, which it contends cannot be permitted. This argument draws on the fundamental principle [t]he settlement of litigation ranks high in our public policy.? Brundage v. Estate of Carambio, 195 NJ. 575, 601 (2008) (quoting Jannarone v. WT. Co., 65 N.J.Super. 472, 476 (App.Div.), certz'f denied,35 NJ. 61 (1961)) (alteration in original). Further, Local Baking asserts allowing intervention after a proposed settlement has been reached would render worthless all of the parties' painstaking ?6 negotiations. Protecting the integrity of final judgments is a compelling consideration supporting Local Baking?s position for reversal. Rule 4:50~l requires a court to scrutinize applications to set aside judgments, enumerating very discrete instances permitting such extraordinary relief. Only subpart applies to these facts. . That provision permits entry of an order to set aside a judgment for ?any other reason justifying relief from the operation of the judgment or For the reasons we will outline, we conclude the totality of the unique facts presented here warrant the relief granted. Initially, we reject the proposition that permissive intervention may not be granted following entry of ?nal judgment. Although the post-judgment setting, motions for intervention have received mixed treatment by our courts intervention after judgment is allowed if necessary ?to preserve some right which cannot otherwise be protected.? Warner Ca, supra, 270 NlSuper. at 662 (quoting Chesterbrooke Ltd. P?ship v. Planning Bd. of Twp. of Chester, 237 N.J.Super. 118, 123 (App.DiV.), certif deniedliS NJ. 234 (1989)). In such instances, timeliness is an essential prerequisite to intervention be ?equated with diligence and promptnessmust interested in pending litigation should not be permitted to stand on the sidelines, watch the proceedings and express disagreement only when the results of the battle are Id . at 663 (quoting Twp. of Hanover, supra, 237 N.J.Super. at 143). Farmers defends the timing of its challenge, arguing the delay was caused by other events. We have considered the respective arguments and the applicabie law. We conclude under the circumstances presented, Farmers' application to intervene was not untimely. First, after Farmers disciaimed coverage it had no justifiable interest in the underlying class action litigation. So long as Rental Mart defended the suit, Farmers could not intervene merely to assert there was no coverage as the result of intentional conduct by Rental Mart, its insured. Rental Mart did not file a declaratory judgment action. Rather, it determined it was in its best interests to accept the proposed settlement of the underlying class litigation without regard to its obligations under the insurance contract with Farmers. Essentially, by agreeing to assign its insurance coverage in exchange for protection of its existing and future income and assets, Rental Mart could forego the need to defend the class action without financial penalty. Rental Mart had no risks: it did not need to challenge Farmers' denial of coverage or defend Local Baking?s claim in the litigation because it would owe nothing, even if there was no insurance coverage or if coverage was voided by its assignment. Once the settlement employing the Farmers policy as the vehicie to fund class recovery was approved, Farmers? interest in whether the claims under the policy were valid solidi?ed. *8 Second, Local Baking and Rental Mart chose not to notice Farmers of the motion, which resulted in the February 5, 2010 order granting preliminary approval of the settlement under the terms set forth in the settlement agreement. This was done even though the Farmers policy was the for class member recovery. Importantiy, as noted above, Rental Matt's decision to rely on the insurance recovery was made without any concern for whether the policy in fact covered the asserted conduct or whether its planned assignment to Local Baking, without Farmers? consent, was permissible or valid based upon the policy terms. 2015 Thomson Reuters. No claim to original US. Government Works. 5 Local Baking Products, inc. v. Westfield Rental Mart, Inc., Not Reported in A.3d (2014) 2014 WL 2807536 We cannot conclude Farmers stood on the sidelines awaiting the results of the underlying class action. When Farmers became aware of the proposed settlement agreement, it ?led its declaratory judgment action. In that matter, Local Baking moved for a change of venue in October 2010 and produced the April 23, 2010 ?nal approval of the settlement agreement and judgment in the underlying class action litigation. This was the ?rst time Farmers was provided with the judgment and, therefore, was on notice its insured implicated the policy by assigning it to Local Baking. This represents the ?rst date Farmers? had a colorable basis to intervene. Strategically, Farmers believed the declaratory judgment action would be concluded swiftly. Local Baking certainly understood the determination of the scope of the policy?s coverage was a prerequisite for implementation of the terms of the proposed settlement agreement. However, neither Rental Mart nor Local Baking diligently participated in that matter. Orders were entered compelling Local Baking and Rental Mart to comply with discovery and at one point an order was entered striking Rental Mart and Local Baking?s answer for non?compliance with the court?s orders. In this regard, we cannot criticize Farmers for separately seeking the coverage determination and do not consider Farmers? actions dilatory or obfuscating. Yet, Farmers could have informed the judge overseeing the underlying class action matter that the intertwined coverage question was being addressed in the separate litigation. Third, Farmers maintains the pending decision in Kosher Bagel was necessary prior to seeking intervention. Because Local Baking was aware of the pending Kosher Bagel matter and understood its signi?cance in respect of this matter, we agree the case?s ?nalization was an important consideration. We are persuaded Farmers? request to intervene, made prior to appellate review of Kosher Bagel, would have been considered premature. Local Baking was the plaintiff-putative class representative in Kosher Bagel, Docket No. and was represented by the same trial attorneys who appeared in the underlying class action litigation. Kosher Bagel, supra, 421 NJ. Super. at 269. Also, the trial judge inKosher Bagel was in the same vicinage of the Law Division as the instant matter. *9 in Kosher Bagel, the judge examined Local Bagel?s identical class action, alleging the very same legal theory to vindicate junk fax claims arising under the TCPA against a different defendant. Id. at 270.He concluded Local Baking could not bring a class action to enforce private causes of action under the TCPA. Id. at 271.3udgment of dismissal of the class action in Kosher Bagel was entered on March 16, 2010, before ?nal judgment was entered in this case. Nevertheless, Local Baking forged ahead with certi?cation of the class and sought approval of the settlement in this matter, without disclosing the Kosher Bagel decision speci?cally rejected the viability of such a class action as a matter of law. 4 Local Baking appealed from the adverse trial determination. Id . at 271.This court af?rmed the trial judge?s holding that a class action could not be ?led to address individual claims under the TCPA. Ibid. Local Baking sought certi?cation. Once the Supreme Court denied the application for certi?cation, the Kosher Bagel analysis conclusively determined a plaintiffs use of a class action to advance TCPA claims was not permitted. Id. at 281. In the underlying class action litigation, the judge conducting the hearing on the fairness of the proposed settlement was not advised of the pending challenge to the legal suf?ciency of the class action vehicle he was being asked to approve. Certainly, this information bears on a determination of whether the proposed settlement was ?fair and reasonable? and would counterbalance the value often accorded to the resolution of disputes. Were the judge inclined to approve the class, despite the contrary decision in Kosher Bagel, he would have examined whether fairness and full disclosure required members of the class be informed of this event prior to ?nalizing a decision to opt in or out. In reaching our conclusion we also consider the questions of whether prejudice to the participating parties existed and whether Farmers shares an interest in the matter and a need to protect its rights regarding that interest. After all, ?if intervention will neither prejudice the rights of existing parties to the litigation nor substantially interfere with the orderly processes of the court, ?the mere fact that judgment has already been entered should not by itself require an application for intervention to be denied.? Vicendese v. Fad, Inc, 160 MlSuper. 373, 380 (Ch. Div .1978) (quoting 7A Wright Miller, Federal Practice and Procedure 1916 at 582). 5 Local Baking suggests Farmers has ?at best a contingent interest? in the enforcement of the underlying class action litigation judgment and argues Farmers? principal interest is 2015 Thomson Reuters. No claim to original US. Government Works. 6 Local Baking Products, Inc. v. West?eld Rental Mart, Not Reported in A.3d (2014) 2014 WL 2807536 whether there is a coverage obligation, which is a concern absolutely protected in the declaratory judgment action. Local Baking's attempt to minimize the extent of Farmers' interest ignores the signi?cant legal question presented in the underlying class action litigation: whether TCPA claims can be legally sustainable in a class action. *10 We also cannot ignore Local Baking was the plaintiff in Kosher Bagel and was fully aware the use of a class action to seek recovery of personal TCPA claims was rejected as a I matter of law by the trial court. The holding in Kosher Bagel, therefore, raises a concern of whether the proposed settlement in the underlying class action litigation is illusory because the class action vehicle is legally invalid, making the judgment providing for payment unenforceable. Because Farmers is the party from whom actual payment is sought, we agree with the trial judge that Farmers has demonstrated a common legal interest in the underlying class action litigation, which may not necessarily be protected in the declaratory judgment litigation. Farmers moved to intervene soon after the legal issue in Kosher Bagel was ?nalized. Based on the nature of the legal issue presented in that matter, fully known to Local Baking, and considering class members were unaware of the Kosher Bagel decision and the unresolved coverage question arising from the assignment provision of the settlement, we conclude the legal interest was not ripe until certi?cation was denied in the Kosher Bagel matter. We cannot agree the putative class was prejudiced by the order. First, claims were never determined. Second, whether the class action was legally sustainable was not disclosed and Local Baking was not diligently pursuing the coverage case, both of which directly impacted class members. Finally, we determine putative members were actually protected by the order under review because each claimant retains the right to pursue an individual TCPA claim against Rental Mart. See Chaftin v. Cape May Greene, 216 NlSuper. 618, 627?28 (App.DiV.) (?The evident purpose of these requirements is to protect class members from a settlement which is not in their best interests?), certif. denied 107 NJ. 148 (1987). We distinguish the authorities relied upon by Local Baking to challenge Farmers? action as untimely. Both Surfer v. Horizon Blue Cross Shield of NJ, 406 NlSuper. 86, 107 (App.DiV.2009) (upholding the denial of intervention ?led after settlement of four?year old litigation involving numerous parties) and Twp. of Hanover v. Township of Morristown, 121 NJSuper. 536, 538 (App.Div.1972) (considering a request for intervention ?led over one year after the conclusion of a twelve-day trial), involved litigation. The denial of intervention in these matters focused on a consideration that ?intervention after a proposed Settlement has been reached, would render worthless all of the parties' painstaking negotiations.?Suz?ter, supra, 406 NlSaper. at 107. However, in this matter, consideration is abSent. The complaint was ?led on June 5, 2009 and proposed settlement was submitted on January 20, 2010. Further, Rental Mart's agreement to settle did not result after discovery or heavy expenditures in conducting the litigation. Rather, Rental Mart jumped on the opportunity to rid itself of the burden of litigation accepting a ?nancial result that essentially caused it to experience no ?nancial impact. The fast pace at which this class action proceeded, without objection from Rental Mart to entry of an almost $15,000,000 settlement against it, suggests an ahnost collusive result. Moreover, Local Baking's desire to quickly enter ?nal judgment certainly appears prompted by its speci?c knowledge that use of a class action was found impermissible in Kosher Bagel. I 1 We reject Local Baking's claim the judge impermissibly opened the judgment by relying on a newly announced legal standard. Here, Local Baking was intimately involved in the Kosher Bagel matter, which had initially been decided by a trial court before the ?nal judgment in this case was entered. As the plaintiff in Kosher Bagel, Local Baking knew its use of a class action was found legally unsustainable. These facts differ from an attempt to set aside a judgment based on the results in a new unrelated court decision. See e. Hartford Ins. Co. v. All State Ins. Co., 68 NJ. 430, 435 (I997) (denying request for rehearing when law was altered by holding in an unrelated case). That this court upheld the legal suf?ciency of the trial court's opinion in Kosher Bagel cannot accord Local Baking a claim of surprise or prejudice resulting from a new development in the law. Had Local Baking revealed the result in the companion Kosher Bagel class action and were the parties and the trial judge given the opportunity to make an informed decision, the outcome may have differed. Here, the strategy to remain mute hoping for a different result on appeal cannot be overlooked, especially when the legal issue was pivotal to a class member's consideration to stay in the class or opt out. 2015 Thomson Reuters. No claim to original US. Government Works. 7' Local Baking Products, lnc. v. Westfield Rental Mart, lnc., Not Reported in A.3d (2014) 2014 WL 2807536 Finally, we reject Local Baking?s position that Kosher Bagel was incorrectly decided. The Supreme Court's denial of certi?cation suggests otherwise. In summary, we emphasize the decision we have reached results from the unique facts presented in this matter. We conclude the trial judge did not abuse his discretion in granting Farmers? motion for permissive intervention. Further, the accompanying decerti?cation of the class action was appropriate in light of Kosher BageZ.See In re GMC Pick?Up Truck Fuel Tank Prods. Liab. Litig, 55 F.3d 768, 800 (3d Cir.l995) class action?whether certi?ed for settlement or litigation purposes?must meet the class requisites enunciated in [Fed R. Civ. Pro] also Delgozzo v. Kenny, 266 N.J.Super. 169, 188 (App.DiV.l993) New Jersey courts, in construing our class action Footnotes rule, are not bound by the interpretations given the federal rule, our courts have consistently looked to the interpretations given the federal counterpart for guidance?). We do agree, however, that Local Baking?s individual claims against Rental Mart should not have been dismissed with prejudice. The judge's opinion failed to analyze the suf?ciency of these claims, and that portion of the order must be reversed. Affirmed in part, reversed in part and remanded for further proceedings. All Citations Not Reported in A.3d, 2014 WL 2807536 1 Deducted from any award orjudgment were: counsel fees, stipulated as one?third of any recovery; $9500 paid to Local Baking as an incentive award for representing the class; $15,000 for Local Baking's expert; and $1,018.98 representing the cost to disseminate notice of settlement to the class. The record contains only the notice of motion and order; no supporting pleadings or transcript have been provided. We do not consider Farmers' additional contention that it satisfied the requisites for intervention as of right pursuant to (JON Rule 4:33?1, because it has not filed a cross appeal. R. 2:3?4. In the absence of a cross-appeal, relief from that portion of the order may not be considered. Walrond v. Cnty. of Somerset, 382 N.J.Super. 227, 231 n. 2 (App.Div.2006). 4 Rule the Rules of Professional Conduct requires a lawyer act with candor to the tribunai. This ethical obligation is "not limited to affirmative misstatements of fact or law by an attorney.?Brundage v. Estate of Carambio, 195 N.J. 575, 591 (2008). However, our courts have recognized that the decision of one trial court is not binding on another, such that the ethical obligation as defined by the rule is not triggered. Id. at 593.The Court in Brundage did not find the failure to disclose an adverse decision by a trial judge on the same issue pending before a different judge to be an ethical lapse, but found the practice was disfavored. Id. at 605?06. 5 We observe Rule 4233?2 mirrors Federal Rule of Civil Procedure 24(b), allowing consideration of federal authority to aid our review. End of Document 2015 Thomson Reuters. No claim to original Government Works. 2015 Thomson Reuters. No claim to original US. Government Works. 8