CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.

COUNSELLORS AT LAW

_____________ 

CHARLES C. CARELLA 

BRENDAN T. BYRNE 

PETER G. STEWART 

ELLIOT M. OLSTEIN 

ARTHUR T. VANDERBILT, II 

JAN ALAN BRODY 

JOHN M. AGNELLO 

CHARLES M. CARELLA 

JAMES E. CECCHI 

JAMES D. CECCHI (1933-1995) 

JOHN G. GILFILLAN III (1936-2008)

JAMES T. BYERS 

DONALD F. MICELI 

A. RICHARD ROSS 

KENNETH L. WINTERS 

JEFFREY A. COOPER 

CARL R. WOODWARD, III 

MELISSA E. FLAX 

DENNIS F. GLEASON 

DAVID G. GILFILLAN 

G. GLENNON TROUBLEFIELD 

BRIAN H. FENLON 

LINDSEY H. TAYLOR 

CAROLINE F. BARTLETT 

5 BECKER FARM ROAD 

ROSELAND, N.J. 07068-1739 

PHONE (973) 994-1700 

FAX (973) 994-1744 

www.carellabyrne.com

 RICHARD K. MATANLE, II 

 FRANCIS C. HAND 

 AVRAM S. EULE 

 RAYMOND W. FISHER 

 ______ 

 OF COUNSEL 

RAYMOND J. LILLIE 

WILLIAM SQUIRE 

ALAN J. GRANT°

STEPHEN R. DANEK 

ERIC MAGNELLI 

DONALD A. ECKLUND 

AUDRA E. PETROLLE 

MEGAN A. NATALE 

AMANDA J. BARISICH 

ZACHARY S. BOWER+ 

°MEMBER NY BAR ONLY 

+MEMBER FL BAR ONLY 

 

April 2, 2012 

VIA ECF

Honorable Dennis M. Cavanaugh 

United States District Court 

Martin Luther King, Jr. Federal Building & Courthouse 

50 Walnut Street 

Newark, New Jersey 07101 

Re: In Re Medco/Express Scripts Merger Litgation, No. 11-cv-4211(DMC)(MF)

 

Dear Judge Cavanaugh: 

 

 This firm, along with Bernstein Litowitz Berger & Grossmann LLP and Grant & 

Eisenhofer P.A., are court-appointed Interim Lead Counsel for the plaintiffs (“Lead Counsel”) in 

the above-captioned class action, which challenged the acquisition of Medco Health Solutions 

Inc. (“Medco”) by Express Scripts, Inc. (“Express Scripts”) (“Merger”). On March 16, 2012, 

counsel for plaintiffs in the New Jersey state court actions challenging the Merger (“New Jersey 

State Counsel”) filed a motion to intervene and for an award of attorneys’ fees (“Motion to 

Intervene”). Please accept this letter brief in lieu of a more formal response to the Motion to 

Intervene. 

As explained below, the Motion to Intervene should be denied for at least three reasons. 

First, New Jersey State Counsel lacks the requisite standing to intervene. Second, even 

assuming arguendo they had standing to intervene, New Jersey State Counsel failed to submit 

the required pleading under Rule 24(c). Third, the Motion to Intervene is premature. The Court 

has yet to rule on Lead Counsel’s pending fee petition. After the Court renders a decision, Lead 

Counsel will allocate any fees awarded pursuant to its duties as court-appointed class counsel, 

and commensurate with the work performed, and results obtained, on behalf of Medco’s 

shareholders. 

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 A PROFESSIONAL CORPORATION

A. Procedural Background Of The New Jersey State Court Actions1

Between July 22, 2011 and August 8, 2011, five complaints were filed in New Jersey 

Superior Court on behalf of Medco shareholders. Those actions were subsequently consolidated 

by agreement (“New Jersey State Action”). On August 11, 2011, Defendants in the New Jersey 

State Action moved to dismiss or stay those actions in favor of the actions then pending before 

the Delaware Court of Chancery (the “Delaware Action”). In response to the Defendants’ 

Motion to Dismiss or Stay, New Jersey State Counsel entered into a stipulation with Defendants 

in which they agreed to a stay of the New Jersey State Action in favor of the Delaware Action. 

Since that Stipulation was entered on September 2, 2011, there has been no further activity on 

the docket of the New Jersey State Action. 

At no time either before or after they consented to the voluntary stay of the New Jersey 

State Action have the New Jersey State Counsel made any effort to coordinate their litigation 

efforts with Lead Counsel or to assist with the prosecution of the New Jersey Federal Action.2

 

B. The Motion To Intervene Should Be Denied 

1. The Motion To Intervene Fails To Meet The Requirements Of Rule 24

New Jersey State Counsel lack standing to intervene under Rule 24. Rule 24(a) provides 

that the court must permit anyone to intervene who: “(1) is given an unconditional right to 

intervene by a federal statute; or (2) claims an interest relating to the property or transaction that 

is the subject of the action, and is so situated that disposing of the action may as a practical 

matter impair or impede the movant’s ability to protect its interest, unless existing parties 

adequately represent that interest.” Here, there is no federal statute that gives New Jersey State 

Counsel an unconditional right to intervene, so Rule 24(a)(1) is inapplicable. 

With respect to Rule 24(a)(2) in the class-action context, a party may intervene as of right 

only where the intervenor demonstrates that the existing class representative does not adequately 

represent the intervenor’s interest. In re Community Bank of Northern Virginia, 418 F.3d 277, 

314 (3d Cir. 2005); In re Domestic Air Transportation Antitrust Litigation, 148 F.R.D. 297, 336 

(N.D.Ga. 1993); Christy v. Hammel, 87 F.R.D. 381, 394 (M.D.Pa. 1980). Further, it is presumed 

that the existing class representative adequately represents the interests of the class. See

Community Bank, id. at 315; Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); Domestic 

Air Transportation, id. New Jersey State Counsel does not claim that the rights of the Class are 

not being adequately represented, nor do they object to the settlement that Lead Counsel was 

able to negotiate on behalf of the Class. Instead, the only concern raised in the Motion to 

 

1

 As this Court is, by now, familiar with the background of this Action, for purposes of this Letter Brief, a 

review of the procedural background is limited to the issues relevant to the Motion to Intervene. 

2

 The notion the New Jersey State Counsel was working with Lead Counsel is wrong. Lead Counsel had 

no interaction with New Jersey State Counsel since their action was voluntarily stayed in favor of the 

Delaware Action. 

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 A PROFESSIONAL CORPORATION

Intervene relates to attorneys’ fees. Such an interest is not the type of protection envisioned by 

Federal Rule 24(a). 

New Jersey State Counsel fare no better under Rule 24(b), which provides, in pertinent 

part, that the court may permit anyone to intervene who: “(A) is given a conditional right to 

intervene by a federal statute; or (B) has a claim or defense that shares with the main action a 

common question of law or fact.” Here, the interests in the underlying litigation are the rights of 

the class, i.e. Medco’s shareholders. The only claim raised by the Motion to Intervene is one for 

New Jersey State Counsel’s attorneys’ fees. Such a claim for fees does not share a common 

question of law or fact with the claims presented by the Class of whether Medco’s board of 

directors breached their fiduciary duties to Medco’s shareholders by agreeing to the Merger, 

along with its preclusive deal protection terms. Accordingly, Rule 24(b) does not support the 

Motion to Intervene. 

Finally, New Jersey State Counsel fail to satisfy the procedural requirements of Rule 

24(c) which requires that a motion to intervene must “be accompanied by a pleading that sets out 

the claim or defense for which intervention is sought.” The Motion to Intervene fails to include 

any such pleading, further showing why it must be denied. 

2. The Motion To Intervene Is Premature And Misrepresents Any 

Coordination Between Lead Counsel And New Jersey State Counsel

The Motion to Intervene is premature. The Court has yet to rule on Lead Counsel’s fee 

petition. After the Court renders a decision, Lead Counsel will allocate any fees awarded 

pursuant to its duties as court-appointed class counsel, and commensurate with the work 

performed, and results obtained, on behalf of Medco’s shareholders. Until that future allocation 

is made, any guess as to the fairness of that unknown amount is premature. 

Additionally, the Motion to Intervene misrepresents the nature and intent of Plaintiffs’ 

Motion for Attorneys’ Fees. By way of this motion, Lead Counsel does not intend to exclude 

New Jersey State Counsel from any fee award. Instead, their time was not included in the 

loadstar amount submitted in conjunction with the Motion for Attorneys’ Fees because the New 

Jersey State Counsel never communicated with Lead Counsel regarding this case, or any work 

the New Jersey State Counsel allegedly performed on behalf of the Class. Moreover, the 

decisions and rulings in the Delaware Action are binding on the New Jersey State Action only by 

virtue of New Jersey State Counsel’s stipulation with Defendants to stay the New Jersey State 

Action in favor of the Delaware Action. Here, Lead Counsel had no role in negotiating that 

stipulation. 

In addition, New Jersey State Counsel acknowledges that any work they performed was 

of their own accord, and was not the result of coordination with Lead Counsel. For example, as 

they admit on page two of their Motion to Intervene, “New Jersey Counsel also maintained an 

open dialogue with Defendants, acquiring the document production and notices of depositions 

directly from Defendants.” Accordingly, prior to the filing of the Motion to Intervene, Lead 

Counsel was unaware that New Jersey State Counsel had even received a copy of Defendants’ 

document production. 

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 A PROFESSIONAL CORPORATION

Accordingly, for all these reasons the Motion to Intervene should be denied. 

Thank you for your attention to this matter. We are available at the Court’s convenience 

to discuss this matter further. 

Respectfully Submitted, 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

/s/ Lindsey H. Taylor 

LINDSEY H. TAYLOR 

cc: All Counsel (via ECF) 

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