Levitt v. Yelp! Inc.

Filing 10

MOTION to Relate Case filed by Yelp! Inc.. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B, #3 Exhibit Exhibit C, #4 Stipulation, #5 Proposed Order Proposed Order)(Brown, Matthew) (Filed on 6/2/2010)

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

COOLEY LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) BENJAMIN H. KLEINE (257225) ([e-mail]) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: [phone] Fax: [phone] Attorneys for Defendant YELP! INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BORIS Y. LEVITT, on behalf of himself and all others similarly situated, Plaintiff, v. YELP! INC.; and DOES 1 through 100, inclusive, Defendants.

No. CV 10-01321 MHP YELP! INC.'S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (CIVIL L.R. 3-12(b) AND 7-11) Courtroom: 15 Judge: Honorable Marilyn Hall Patel Trial Date: None Set

Defendant Yelp! Inc. ("Yelp"), by and through its undersigned counsel of record, hereby files this Administrative Motion to Consider Whether Cases Should be Related pursuant to Civil Local Rules 3-12(b) and 7-11, to consider whether the action entitled Boris Y. Levitt v. Yelp! Inc., Case No. CV 10-01321 MHP ("Levitt"), and the action entitled Cats and Dogs Animal Hospital, Inc, et al. v. Yelp! Inc., Case No. CV 10-02351 MEJ ("Cats and Dogs") should be related. This motion is supported by the stipulation, filed herewith, of all parties to the two cases. The Levitt action was filed on March 12, 2010 in the Superior Court of the State of California, County of San Francisco, and was entitled Boris Y. Levitt, on behalf of himself and all other similarly situated v. Yelp! Inc.; and Does 1 through 100, inclusive, Case No. CGC-10497777. Yelp removed the action to this Court pursuant to 28 U.S.C. § 1453(b) on March 29,

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-01321 MHP

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

2010. A true and correct copy of the Complaint in the Levitt action is attached hereto as Exhibit A. The Cats and Dogs action was filed in the United States District Court for the Central District of California on February 24, 2010. It was assigned to the Honorable Valerie Baker Fairbank. A true and correct copy of the First Amended Complaint in the Cats and Dogs action is attached hereto as Exhibit B. On May 4, 2010, on Yelp's motion to transfer venue pursuant to 28 U.S.C. § 1404(a), Judge Fairbank ordered Cats and Dogs transferred to this Court. A true and correct copy of the Order transferring the case is attached as Exhibit C. On May 28, 2010, the case was opened on this Court's docket. On April 7, 2010, Yelp filed a Notice of Pendency of Other Actions or Proceedings pursuant to Northern District Civil Local Rule 3-13 in the Levitt action1 and a Notice of Pendency of Other Actions or Proceedings pursuant to Central District Local Rule 83-1.4 in the Cats and Dogs action. The Cats and Dogs and Levitt Actions Are Related The Cats and Dogs and Levitt actions are related under Civil Local Rule 3-12(a), since the actions concern substantially the same parties, property, transaction, or event and would result in an unduly burdensome duplication of labor and expense and increase the likelihood of conflicting results if the cases are conducted before different judges. Yelp operates a website (www.yelp.com) that allows consumers to find local businesses, and to read and write reviews about them. The website features information on and reviews of businesses throughout the United States and is visited by approximately 30 million people per month. Yelp makes money by, inter alia, selling ads to local businesses, which appear as "Sponsored Results" on Yelp's website.

Yelp's Notice of Pendency included notice of a second related case pending in the Central District entitled LaPausky v. Yelp! Inc., Case No. CV 10-01578 VBF (SSx). Plaintiff LaPausky had originally been represented by separate counsel. On April 16, 2010, counsel for plaintiffs in the Cats and Dogs action filed a Notice of Substitution of Counsel notifying the court and parties that such counsel was substituting in for LaPausky's previous counsel. On April 29, 2010, LaPausky's new counsel filed a Notice of Voluntary Dismissal dismissing the LaPausky action. 2.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-01321 MHP

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COOLEY LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

Plaintiffs in both actions seek to represent nearly identically defined putative classes in lawsuits against the same defendant, Yelp. (Compare Ex. A ¶ 36 with Ex. B ¶ 171.) Plaintiffs in both actions are businesses that allege that, based on whether a business chooses to advertise with Yelp or not, the display of reviews of such business on www.yelp.com is either positively or negatively affected. (Compare, e.g., Ex. A ¶¶ 6-13 with Ex. B ¶¶ 91-93.) Plaintiffs in both actions assert claims for violation of California's Unfair Competition Law, Business and Professions Code Section 17200 et seq. Plaintiff in Levitt includes additional claims for (a)

violation of California Business and Professions Code Section 17500, (b) negligent misrepresentation, and (c) intentional misrepresentation. Plaintiffs in Cats and Dogs include additional claims for (a) violation of Cal. Penal Code §§ 518-19 (extortion), (b) violation of Cal. Penal Code § 524 (attempted extortion), and (c) intentional interference with prospective economic advantage. Thus, the factors specified in Local Civil Rule 3-12(a) are met. The actions concern substantially the same parties, and they concern substantially overlapping subject matter, namely Yelp's advertising and review display policies and practices. If the cases were not related and conducted before the same judge, there would be an unduly burdensome duplication of labor and expense by Yelp, eventual class counsel, and the Court. There would also be a risk of conflicting results. Conclusion For the foregoing reasons, Yelp, supported by the stipulation of the plaintiffs in each action, respectfully submits that the Levitt and Cats and Dogs actions are related and should be conducted before the same judge. Dated: June 2, 2010 COOLEY LLP /s/ Matthew D. Brown Matthew D. Brown (196972) Attorneys for Defendant YELP! INC.

1179787/SF

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. CV 10-01321 MHP