Levitt v. Yelp! Inc.

Filing 16

PRETRIAL MEMORANDUM PRETRIAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S OPPOSITION TO CATS AND DOGS CROSS-MOTION FOR DESIGNATION AS LEAD ACTION AND APPOINTMENT OF WESTON FIRM AND BECK & LEE AS INTERIM CLASS COUNSEL by Boris Y. Levitt. (Ongaro, David) (Filed on 6/28/2010)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAWRENCE D. MURRAY, State Bar No. 77536 NOAH W. KANTER, State Bar No. 224580 MURRAY & ASSOCIATES 1781 Union Street San Francisco, CA 94123 Telephone: (415) 673-0555 Facsimile: (415) 928-4084 DAVID R. ONGARO, State Bar No. 154698 AMELIA D. WINCHESTER, State Bar No. 257928 ONGARO BURTT LLP 595 Market St., Suite 610 San Francisco, CA 94105 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 Attorneys for Plaintiff BORIS Y. LEVITT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BORIS Y. LEVITT, on behalf of himself and all others similarly situated, Plaintiffs, v. YELP! INC.; and DOES 1 through 100, inclusive, Defendants. 5 3 Case No. CV 10-01321 MHP PLAINTIFF LEVITT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS OPPOSITION TO CATS AND DOGS CROSS-MOTION FOR: (A1) DESIGNATION OF CATS AND DOGS AS LEAD ACTION AND STAY OF LEVITT ACTION, OR IN THE ALTERNATIVE, (A2) CONSOLIDATION OF THE ACTIONS, DEEMING CATS AND DOGS FIRST AMENDED COMPLAINT AS THE OPERATIVE PLEADING; AND (B) APPOINTMENT OF THE WESTON FIRM AND BECK & LEE AS INTERIM CLASS COUNSEL Judge: Hon. Marilyn Hall Patel Date: July 19, 2010 Time: 2:00 p.m. PLAINTIFF'S MPA ISO OPP'N TO CROSS-MOTION Case No. CV 10-01321 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Case No. CV 10-01321 MHP TABLE OF CONTENTS I. II. III. A. B. C. IV. INTRODUCTION................................................................................... 1 BACKGROUND..................................................................................... 1 ARGUMENT ........................................................................................ 2 Levitt Should Not be Stayed . ................................................................................ ......... 2 The Cats and Dogs Complaint Should Not be Designated as the Operative Pleading......6 Ongaro Burtt and Murray & Associates are Qualified to Act as Interim Class Counsel. ... 7 CONCLUSION .................................................................................... 12 -i- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Case No. CV 10-01321 MHP TABLE OF AUTHORITIES Cases Cats and Dogs v. Yelp! Inc., Case No. CV 10-1340-VBF (SSx) (C.D. Cal. May 3, 2010) .............. 4 Four In One Company, Inc. v. Sk Foods, L.P., No. 2:08-cv-03017-MCE-EFB, 2009 WL 747160 (E.D. Cal. March 20, 2009) ..................................................................................................... 8, 11 In Re Cathode Ray Tube (CRT) Antitrust Litigation, No. 07-5944 SC, 2008 WL 2024957 (N.D. Cal. May 9, 2008)................................................................................................................ 8 Johnson v. Manhatten Ry. Co., 289 U.S. 479, 496-97 (1933) .......................................................... 3 Katz et al. v. Fifield Realty Corp., et al., No. 07-61626-CIV, S.D. Fla. ......................................... 10 Lac Anh Le v. Pricewaterhousecoopers LLP, No. C-07-5476 MMC, 2008 WL 618938 (N.D. Cal. March 4, 2008) ........................................................................................................ 5, 6 Landis v. North Am. Co., 299 U.S. 248 (1936) ................................................................................. 3 Medlock v. Taco Bell Corp., No. CV-F-07-1314 OWW/DLB, 2009 WL 1444343 (E.D. Cal. May 19, 2009) .............................................................................................................. 8 Parkinson v. Hyundai Motor America, No. CV06-345AHS (MSGX) 2006 WL 2289801 (C.D. Cal. Aug. 7, 2006) ......................................................................................................... 8, 11 Single Chip Sys. Corp., v. Intermec IP Corp., 495 F.Supp.2d 1052 (2007) ..................................... 3 Southwest Marine, Inc., v. Triple A Machine Shop, Inc., 720 F.Supp. 805 (N.D. Cal. 1980) .......... 6 Rivers v. Walt Disney Co., 980 F.Supp. 1358 (C.D.Cal.1997). ........................................................ 3 Takeda v. Turbodyne Technologies, Inc., 67 F.Supp.2d 1129 (C.D.Cal.1999) ................................ 3 Teamsters Local Nos. 175 & 505 Pension Trust Fund v. IBP Inc., 123 F.Supp.2d 514 (S.S.D. 2000) ................................................................................................................................. 5 Statutes Federal Rules of Civil Procedure ...................................................................................................... 5 California Business and Professions Code 17200 ...................................................................... 4, 5 California Business and Professions Code 17500 .......................................................................... 4 Other Authorities Newburg on Class Actions 9.34 ..................................................................................................... 7 -ii- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Cats and Dogs' cross-motion to oppose consolidation, stay the Levitt action, deem its own complaint as the operative pleading, and its counsel as interim class counsel should be denied in all aspects. It is undisputed based on the admissions of all parties that Levitt and Cats and Dogs would be appropriately consolidated because of the existence of common questions of law and fact. Cats and Dogs' motion to stay Levitt should be denied because it is unsupported by legal authority, would prejudice Levitt and potential class representatives, and would not serve to further judicial economy. In addition, Defendant has raised multiple pleading flaws with the Cats and Dogs First Amended Complaint ("FAC"), and the FAC contains different claims than the claims alleged in Levitt's complaint. As a result, the Cats and Dogs FAC should not be deemed the "operative pleading." Finally, Cats and Dogs counsel Beck & Lee Business Trial Lawyers ("Beck & Lee") of Miami, Florida and the Weston Firm consist of attorneys who have, at most, less than 6 years of legal experience each. While Beck & Lee and the Weston firm might have "won" the race to the Courthouse, they simply do not have the trial, class action experience and resources necessary to best represent the class. Cats and Dogs' cross-motion to appoint Beck & Lee and the Weston Firm as interim class counsel should be denied and the Court should appoint as interim class counsel the San Francisco law firms of Murray & Associates and Ongaro Burtt LLP, whose two lead attorneys alone possess (collectively) more than 50 years of class action and trial experience. II. BACKGROUND Plaintiff Boris Levitt ("Plaintiff" or "Levitt") was contacted by Yelp! Inc. ("Yelp" or "Defendant") for advertising in July 2009. See Levitt Complaint ("Complaint"), 29. After declining advertising from Yelp, 6 out of 7 of Levitt's positive Yelp reviews were immediately removed from his Yelp business webpage, leaving Levitt with an overall star review of 3.5 stars instead of the 4.5 stars his business had previously held. See Complaint 31. Thereafter, and in response to the corresponding decline in his business, Levitt began tracking his star reviews and the number of Yelp page views his business received. Levitt also began discussing and comparing his experiences with Yelp with other small business owners. In January 2010, Levitt contacted -1PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV-09-5133 JF PVT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Murray & Associates about his issues with Yelp. See Declaration of Lawrence D. Murray [hereafter "Murray Decl."] attached hereto as Ex. 1, 2. On January 15, 2010, Levitt met with Larry Murray of Murray & Associates to discuss his experiences with Yelp and the possibility of filing a lawsuit. Murray Decl. 3. Thereafter, Mr. Murray began an investigation into Levitt's allegations. On February 10, 2010, Levitt and Larry Murray met with David Ongaro, of Ongaro Burtt LLP ("Ongaro Burtt") to discuss his claims. Thereafter, Murray & Associates and Ongaro Burtt began a joint-investigation into Levitt's claims. On February 23, 2010, Murray & Associates organized a meeting for other business owners that had contacted Levitt regarding their concerns about Yelp. Murray Decl., 5. That same day, Cats and Dogs filed its complaint in the United States District Court for the Central District of California. A little over two weeks later, Murray & Associates and Ongaro Burtt, having obtained enough information, filed a complaint on behalf of Boris Levitt in the San Francisco County Superior Court. See Levitt Complaint ("Complaint"). In his complaint, Levitt alleged that Yelp violated California Business & Professions Code sections 17200 and 17500, and engaged in intentional and negligent misrepresentations. See Complaint. The Cats and Dogs complaint filed in the Central District -- originally alleged that Yelp violated California Business & Professions Code section 17200 for unfair competition, however, Cats and Dogs has since amended its complaint to include claims for extortion, attempted extortion, and intentional interference with prospective business advantage. See Cats and Dogs, First Amended Complaint. On March 29, 2010 Levitt's complaint was removed to the United States District Court for the Northern District of California. On May 3, 2010 Cats and Dogs was transferred from the United States District Court for the Central District of California to the United States District Court for the Northern District of California. On June 4, 2010 the actions were deemed to be related. III. ARGUMENT A. Levitt Should Not be Stayed. -2PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cats and Dogs while conceding that consolidation is appropriate argues that Levitt should be stayed because it "mimics" the allegations in the Cats and Dogs complaint and because Cats and Dogs have started discovery. Cats and Dogs' position as demonstrated by the contents of its brief is unsupported, misconstrues facts, and could only be interpreted as an attempt to prejudice Levitt. As a result, the Court should, in the interest of judicial economy and fairness, and pursuant to the stipulation agreed to between Yelp and Levitt, decline to stay Levitt and consolidate Levitt with Cats and Dogs. Pursuant to Federal Rule of Civil Procedure 42(a), If actions before the Court involve a common question of law or fact, the court may: (1) join for hearing or trial any and all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. "[I]n deciding whether to consolidate actions under Rule 42(a), a court must balance the savings of time and effort consolidation will produce against any inconvenience, delay, confusion, or prejudice that may result." Takeda v. Turbodyne Technologies, Inc., 67 F.Supp.2d 1129, 1132 (C.D.Cal.1999). Consolidation does not "merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhatten Ry. Co., 289 U.S. 479, 496-97 (1933). Similar to the discretionary nature of a decision to consolidate, a court may issue a stay "to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254 (1936). "In determining whether to stay proceedings, the Court considers the following factors: (1) judicial economy; (2) the moving party's hardship; and (3) potential prejudice to the non-moving party." Single Chip Sys. Corp., v. Intermec IP Corp., 495 F.Supp.2d 1052 , 1057 (2007) citing Rivers v. Walt Disney Co., 980 F.Supp. 1358, 1360 (C.D.Cal.1997). -3PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is undisputed by all parties that Levitt and Cats and Dogs are well-suited for consolidation because they involve common questions of law and fact.1 See Yelp! Inc.'s Motion to Consolidate, Cats and Dogs Opposition to Motion to Consolidate, 3 [hereafter "Cats and Dogs Opp'n"]. Both Levitt and Cats and Dogs assert that Yelp's manipulation of a business's reviews is linked to the business's decision to advertise with Yelp. In addition, Judge Fairbank specifically noted in her Order to Transfer Cats and Dogs from the United States District Court for the Central District of California that, in light of the potential for consolidation with Levitt as well as other factors that support venue in the Northern District, that a transfer "would serve the interest of justice by lowering the costs to the courts, facilitating expeditious pre-trial proceedings and discovery, and avoiding duplicative litigation and inconsistent results." See Cats and Dogs v. Yelp! Inc., Case No. CV 10-1340-VBF (SSx) (C.D. Cal. May 3, 2010). Despite Judge Fairbank's remarks, Cats and Dogs argue that the Court should stay Levitt, which was appropriately filed, upon the completion of his counsel's own investigation, in the San Francisco Superior Court2 only 2.5 weeks after Cats and Dogs. Ignoring the judicial standard courts use to determine whether to stay an action, Cats and Dogs assert that a stay is appropriate because Levitt's allegations "mimicked" the Cats and Dogs complaint. A quick comparison of the original complaint that Cats and Dogs filed with Levitt's complaint, however, demonstrates that Cats and Dogs asserted only a claim for violation of California Business and Professions Code section 17200 (unfair prong) whereas Levitt asserted claims of California Business and Professions Code section 17200 (unfair and unlawful prongs), section 17500 (false advertising), intentional misrepresentation and negligent misrepresentation. Cats and Dogs has since amended its complaint to include claims for extortion, attempted extortion, and intentional interference with prospective business advantage and California Business and Professions Code 17200 (unfair, unlawful, and fraudulent prongs). It is plain from the papers themselves that / Given the consensus among the parties, it is unclear why Cats and Dogs are generating unnecessary costs and fees to oppose consolidation. 2 / Judge Fairbank, in her Order dated May 3, 2010, specifically noted the existence of Yelp's forum selection clause (which specifies San Francisco County). -4PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 while Levitt asserts similar factual allegations due to the nature of his own experiences with Yelp, he did not copy the Cats and Dogs complaint or its allegations. With regard to Cats and Dogs' assertion that Levitt should be stayed because Cats and Dogs is already "well-along in discovery" which again, is not a factor that is directly relevant to whether a stay should be granted Levitt did not serve discovery requests earlier on in this litigation because Levitt's case management conference is not scheduled to take place until July 19, 2010. See FRCP 26(f). To stay Levitt's case due to his compliance with the federal rules would be prejudicial.3 Moreover, it is unclear how Cats and Dogs' service of a total of 42 interrogatories and requests for production of documents on Yelp due its earlier-scheduled case management conference could possibly result in a hardship to Cats and Dogs, or why it would serve to weaken judicial economy. Murray Decl. 7. With respect to the factors courts consider when determining whether a case should be stayed, they weigh against staying Levitt's case. Indeed, judicial economy will be furthered if two actions that are currently before the same judge in the same federal district court both of which are in the early stages of litigation proceed as one consolidated action. It will not prejudice Cats and Dogs if the actions are consolidated. Indeed, the only real hardship Cats and Dogs points to is that "counsel for Cats and Dogs do not wish to work with Counsel for Mr. Levitt." This complaint is hardly within the realm of issues that normally warrant the issuance of stays such as the existence of concurrent state and federal actions (or even concurrent federal court actions in different districts) where the risk of inconsistent judgments (without consolidation) is real. See e.g., Teamsters Local Nos. 175 & 505 Pension Trust Fund v. IBP Inc., 123 F.Supp.2d 514, 518 (S.S.D. 2000) (in case of pending state and federal actions, staying federal action and noting concern for inconsistent federal and state results); Lac Anh Le v. / Given that Cats and Dogs knew that there was a pending action in the Northern District where discovery could not begin, and with which it would likely be consolidated, it is unclear why it has been aggressively pursuing discovery and the scheduling of deposition dates. See Cats and Dogs Emergency Motion to Shorten Time Relating to Motion to Compel Rule 30(b)(6) Deposition. -5PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pricewaterhousecoopers LLP, No. C-07-5476 MMC, 2008 WL 618938 at *1 (N.D. Cal. March 4, 2008) ("A district court has discretion to stay an action where `a complaint involving the same parties and issues has already been filed in another district.'"). Finally, staying the action would plainly prejudice Levitt, whose business has and is being adversely impacted by Yelp's business practices, who has dedicated countless hours to investigating Yelp, and who is in the process of adding other named class representatives with distinct Yelp experiences to his complaint. Notably absent from Cats and Dogs brief are any legal citations that would support an order granting a stay against Levitt, which makes sense given that the relevant factors weigh against it.4 Levitt should not be stayed; it should be consolidated with Cats and Dogs. B. The Cats and Dogs Complaint Should Not be Designated as the Operative Pleading. Cats and Dogs maintain that its FAC should be deemed the operative pleading because 1) a motion to dismiss was briefed in the Central District prior to the transfer; 2) it seeks no further plaintiffs; 3) it does not want to add claims of intentional and negligent misrepresentation to its complaint; and 4) because Levitt does not allege that he paid funds to Yelp. The Cats and Dogs FAC as it stands, however, will likely require amendment. Moreover, Levitt's complaint currently alleges different claims than Cats and Dogs and seeks to add class representatives with different Yelp experiences. As a result, it is not appropriate for the Court to designate the Cats and Dogs FAC as the operative pleading. Given that the cases are ripe for consolidation, there is no reason why the Cats and Dogs and Levitt complaints should not be amended and consolidated in the interest of judicial economy. / Indeed, Cats and Dogs cites to Southwest Marine, Inc., v. Triple A Machine Shop, Inc., 720 F.Supp. 805, 807 (N.D. Cal. 1980) in support of its proposition that the Court should stay, rather than consolidate Levitt and Cats and Dogs, however, Southwest Marine is obviously distinguishable in that it did not involve common facts or causes of action. In Southwest Marine, the court stated that, "[t]his action and Service Engineering do not state the same causes of action, nor do they involve the same alleged fraudulent scheme. The facts necessary to prove the claims in the respective actions are not in common, nor do the actions necessarily concern the same Navy contracts. Allowing plaintiff to pursue its claims against defendants in this separate action will not involve a substantial duplication of effort. Consolidation of the two actions would likely delay the trial of Service Engineering set for September 25, 1989." -6PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While Cats and Dogs maintain that the earlier briefing on a motion to dismiss in the Central District weighs in favor deeming its complaint the "operative pleading," the papers currently on file have demonstrate that Defendant has challenged the Cats and Dogs FAC as having numerous pleading flaws. See Yelp's Motion to Dismiss. As a result, even if those briefs were before the Court now, it would likely result in Cats and Dogs filing another amended complaint (and a subsequent motion to dismiss briefing schedule that would undoubtedly "delay" the case just as long if not longer than permitting Levitt and Cats and Dogs to consolidate their complaints now). More certainly, Levitt has spent the last several months investigating the claims of new and potential clients many of whom paid Yelp for advertising and had different experiences than the Cats and Dogs class representatives, yet are typical of those in the putative class. Levitt has been in conjunction with discussions with new and potential clients already developing an amended complaint. Even further, Levitt has claims for California Business and Professions Code section 17500, which is not in the Cats and Dogs FAC, and claims for negligent and intentional misrepresentation.5 Finally, any delays in the case that Cats and Dogs attributes to Levitt such as stipulating to allow Yelp extra time to file a response given the pendency of the three actions were simply permitted as a matter of professional courtesy and due to the date of Levitt's case management conference, something which Levitt and other clients of Levitt's counsel should not now be faulted for. Given the above, Cats and Dogs should not -- on its papers and alreadychallenged claims alone be permitted to have its FAC deemed the operative pleading. C. Ongaro Burtt and Murray & Associates are Qualified to Act as Interim Class Counsel. Pursuant to Rule 23(g)(1), in appointing class counsel, a federal court must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; / Assuming he has the opportunity, Levitt will likely amend and/or remove at least one of these claims in his amended complaint. -7PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (ii) (iii) (iv) counsel's experience handling class actions, other complex litigation, and the types of claims asserted in the action; counsel's knowledge of the applicable law; and the resources that counsel will commit to representing the class. In addition, the court "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." FRCP 23(g)(B). Courts will also apply the Rule 23(g)(1) criteria to the appointment of interim class counsel. See In Re Cathode Ray Tube (CRT) Antitrust Litigation, No. 07-5944 SC, 2008 WL 2024957 at *1 (N.D. Cal. May 9, 2008). In making a determination on the appointment of class counsel, courts will often examine the experience of the proposed class counsel. See e.g., Four In One Company, Inc. v. Sk Foods, L.P., No. 2:08-cv-03017-MCE-EFB, 2009 WL 747160 at *3 (E.D. Cal. March 20, 2009); Parkinson v. Hyundai Motor America, No. CV06-345AHS (MSGX) 2006 WL 2289801 at*3 (C.D. Cal. Aug. 7, 2006). In addition to its request that its complaint become the "operative pleading" against Yelp, Cats and Dogs also argues that its counsel, The Weston Law Firm and Beck and Lee, should become interim class counsel. Cats and Dogs primarily argues that its counsel is best-suited for this role because it filed a complaint and was able to start discovery before Levitt. It is wellsettled, however, that "the first attorney to file is not entitled to special consideration for appointment as lead counsel simply by winning the race to the courthouse." Medlock v. Taco Bell Corp., No. CV-F-07-1314 OWW/DLB, 2009 WL 1444343 at *6 (E.D. Cal. May 19, 2009) citing Newburg on Class Actions 9.34. Instead, the court must evaluate counsel based on the Rule 23(g)(1) factors. Given that Murray & Associates and Ongaro Burtt LLP have diligently investigated the claims in this case, dedicated resources, and collectively, have many more years of trial and class action experience (in California) than Cats and Dogs counsel, they are bettersuited to be interim class counsel. Cats and Dogs attempt to portray Levitt's counsel as being insufficient, stating that counsel filed "a copycat complaint in March, and then stipulate[d] to a stay of all activity until August," however, this characterization is unfair and blatantly misconstrues the facts. Levitt and his counsel began investigating Levitt's claims long before Cats and Dogs filed their complaint. -8PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Levitt having noticed the relationship between his Yelp reviews and his choice to decline advertising began tracking his experiences with Yelp in July 2009. In January and February 2010 prior to the filing of the Cats and Dogs complaint -- attorneys from Murray & Associates and Ongaro Burtt met with Mr. Levitt, investigated his claims, and began working on a complaint. See Murray Decl.3, Declaration of David R. Ongaro [hereafter "Ongaro Decl."], 2. As described above, and as evidenced by the noticeably absent details in Cats and Dogs's cross-motion, Levitt's complaint did not copy the Cats and Dogs complaint. Since meeting with Levitt, Murray & Associates and Ongaro Burtt LLP have met and spoken with dozens of business owners, even organizing large meetings of those who were interested in a Yelp investigation. See Murray Decl. 5. Attorneys from Murray & Associates and Ongaro Burtt LLP have spent over 200 hours on the investigation, however, they are also cognizant of not racking up needless attorneys' fees, which can themselves be detrimental to the interests of class members.6 See Murray Decl.9, Ongaro Decl.3. Murray & Associates and Ongaro Burtt LLP have been in the process of drafting an amended complaint (although they have delayed filing pending the outcome of Yelp's request and motion to consolidate the complaints). Moreover, the two firms together have investigated each business closely, weeding out businesses whose owners have issues with various Yelp practices, but who are not putative class members. As stated above, Murray & Associates and Ongaro Burtt LLP have not completed discovery because of the scheduling of the case management conference in the Northern District for late July. / Counsel for Cats and Dogs purport to have spent 1,000 attorney hours and 1,000 law firm hours investigating, preparing, and prosecuting the case, however, they also claim to be content with the 10-named class representatives (added to their complaint on March 16, only weeks after their original complaint was filed). As a result, it appears that the majority of these hours have been dedicated to opposing a motion to transfer and two motions to consolidate with other cases and conferring with opposing counsel including an in person meeting in San Francisco regarding case management issues -- hours and costs which have not been spent identifying or investigating potential claims. Moreover, they are also pursuing based on an objective reading of the court's docket a frivolous Emergency Motion to Shorten Time Relating to Motion to Compel Rule 30(b)(6) deposition. -9PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to the time they spent almost exclusively on investigating claims and developing the case, the attorneys from Murray & Associates and Ongaro Burtt LLP have extensive class action, jury trial, and consumer class action experience. See Murray Decl.10-11, Ongaro Decl. 5-6. Larry Murray, of Murray & Associates, and David Ongaro, of Ongaro Burtt, have been and will be acting as lead counsel on the case. Murray Decl. 12, Ongaro Decl.8. Mr. Murray, a former assistant district attorney for the City of San Francisco, has over thirty years of trial experience and has completed over 100 trials to verdict. Mr. Murray has prosecuted class actions and has been certified as class counsel. Murray Decl. 10. Mr. Ongaro, listed in Law and Politics Magazine as a "Northern California Super Lawyer" has been practicing law for almost 20 years and has prosecuted and defended as lead counsel -- a total of 24 multi-million dollar class action lawsuits across the country. Ongaro Decl. 6. In addition, Mr. Ongaro has substantial trial experience and has successfully tried cases to verdict in California, Iowa, and Massachusetts. Ongaro Decl. 9. Murray & Associates and Ongaro Burtt LLP are both located in San Francisco, California, the principal place of business of Defendant Yelp. See Murray Decl. 13, Ongaro Decl.10. Both Mr. Murray and Mr. Ongaro, as well as their associates, are extremely knowledgeable about the primary California statute at issue in this case, having (collectively) prosecuted and defended a total of nine class action lawsuits this year alone involving California's unfair competition laws. See Murray Decl. 11, Ongaro Decl.7. Murray & Associates' and Ongaro Burtt's local presence, their attorneys' ability to work together, ability to meet in-person, and knowledge of California law make the firms better-suited than a Florida-based law firm (who appears to be primarily handling Cats and Dogs) to take on Yelp's wrongdoing in California under California law. In addition, Murray & Associates and Ongaro Burtt LLP routinely take on contingency and plaintiffs' class action cases. As a result, they are willing to dedicate resources, in the form of attorney and firm hours, as well as costs, to prosecute Levitt's class action against Yelp. See Murray Decl. 14, Ongaro Decl.11. Moreover, both Murray & Associates and Ongaro Burtt LLP - 10 PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employ several associates, paralegals, and contract attorneys. As a result, they will be able to staff the Levitt case as necessary, and are not limited to the resources of two two-person law firms. Unlike Murray & Associates and Ongaro Burtt LLP, whose lead attorneys each have over 19 and 30 years of litigation and class action experience in California, counsel for Cats and Dogs have far less trial and litigation experience. For example, Jared Beck and Elizabeth Lee Beck of Beck and Lee were each admitted to practice law in California and Florida in 2004 and 2006, respectively. See Murray Decl. 15, Ex 1. Gregory Weston was admitted to practice law in California in 2005, and Jack Fitzgerald was admitted to the California bar in 2008. See Murray Decl. 16, Ex. 2. Beck & Lee highlight that they were appointed interim class counsel in Katz et al. v. Fifield Realty Corp., et al., No. 07-61626-CIV (S.D. Fla.), however, the docket reflects that their motion to become class counsel was unopposed. Similarly, with regard to Judge Morrow's finding that the "Weston Firm is qualified to serve as Class Counsel," referenced in the Cats and Dogs Cross-Motion, that quotation appears to have been lifted out of a proposed order that was submitted to the court for a proposed settlement. The appointment of the Weston Firm in that case like Beck & Lee in Katz -- similarly appears to be unopposed. While the attorneys at both firms appear to possess some litigation experience, they simply do not possess the decades of trial experience and resources that both Mr. Ongaro and Mr. Murray can bring to the table. See e.g., Four In One Company, Inc. v. Sk Foods, L.P., No. 2:08-cv-03017-MCE-EFB, 2009 WL 747160 at *3 (E.D. Cal. March 20, 2009) (appointing firm as class counsel "with far-reaching experience and expertise as well as trial experience necessary to litigate a case of this magnitude." ); Parkinson v. Hyundai Motor America, No. CV06-345AHS (MSGX) 2006 WL 2289801 at*3 (C.D. Cal. Aug. 7, 2006) (appointing firm as class counsel whose attorneys had "more experience" and "greater resources").7 / In addition to Cats and Dogs counsel's lack of experience, Cats and Dogs incorrectly takes credit for relief its counsel allegedly already obtained from Yelp. Specifically, Cats and Dogs leads off its brief with the statement that "Cats and Dogs has already brought about substantial changes to Yelp's business practices changes which Yelp made in direct response to Cats and Dogs action, but almost two weeks before Mr. Levitt filed his third-filed copycat complaint." Cats and Dogs goes on to explain that Yelp now permits business owners and users to - 11 PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In sum, Murray & Associates and Ongaro Burtt are best qualified and well suited to become interim class counsel. The trial and class action experience of both of the lead attorneys will ensure that the interests of the class members are protected. In the event, however, the Court determines that The Weston Law Firm and Beck and Lee, are also qualified, Levitt respectfully requests that Murray & Associates and Ongaro Burtt be deemed co-interim class counsel. IV. CONCLUSION For the reasons set forth herein, Levitt respectfully requests that the Court appoint Murray & Associates and Ongaro Burtt as interim class counsel and that the Court deny: Cats and Dogs' Cross-Motion to Designate Cats and Dogs as Lead Action and Stay Levitt action; Cats and Dogs' Cross-Motion to Deem the First Amended Complaint as the Operative Pleading; and Cats and Dogs' Cross-Motion for appointment of the Weston Firm and Beck and Lee as Interim Class Counsel. DATED: June 28, 2010 ONGARO BURTT LLP By: /s/ David R. Ongaro Attorneys for Plaintiff BORIS Y. LEVITT see "filtered" reviews on its website and no longer allows businesses to pay to designate a "favorite" monthly review to be featured at the top of its page, which Cats and Dogs claims occurred in direct response to its lawsuit. While Cats and Dogs blindly takes credit for these changes, it misleads the reader both through the text of its brief and in its declarations into believing that Yelp made the described changes on March 1, 2010, in direct response to its complaint and prior to the filing of Levitt's complaint. However, as all parties' in this lawsuit should be (and are likely) aware, Yelp did not make the aforementioned changes until April 5, 2010. See Murray Decl. 17, Ex. 3. The incorrectly dated "blog" post, attached as Exhibit A to the Declaration of Gregory S.Weston, which is dated March 1, 2010, is plainly "doctored" as it includes a snapshot of a video (on a Yelp review page) that was posted on Yelp's Blog almost three weeks later on March 18, 2010. In any event, the newspaper articles Levitt submits in support of this Opposition demonstrate that the change did not occur until April 5, after the Levitt action was filed. - 12 PLAINTIFF'S MPA ISO OPP'N TO CATS AND DOGS CROSS-MOTION Case No. CV 10-01321 MHP

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