Levitt v. Yelp! Inc.

Filing 85

RESPONSE (re #77 MOTION to Dismiss Third Amended Class Action Complaint and to Dismiss or Strike Class Action Allegations; Memorandum of Points and Authorities ) filed byBoris Y. Levitt. (Attachments: #1 Declaration, #2 Evidentiary Objections)(Ongaro, David) (Filed on 9/2/2011)

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LAWRENCE D. MURRAY, State Bar No. 77536
NOAH W. KANTER, State Bar No. 224580
MURRAY & ASSOCIATES
1781 Union Street
San Francisco, CA 94123
Telephone: [phone]
Facsimile: [phone]
DAVID R. ONGARO, State Bar No. 154698
AMELIA D. WINCHESTER, State Bar No. 257928
ONGARO BURTT & LOUDERBACK LLP
595 Market St., Suite 610
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs
BORIS Y. LEVITT et al.
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BORIS Y. LEVITT, on behalf of himself and all
others similarly situated,
Plaintiffs,

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v.
YELP! INC.; and DOES 1 through 100, inclusive,
Defendants.

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Case No. CV 10-01321 EMC
Consolidated with CV 10-02351 EMC
PLAINTIFF LEVITT’S
EVIDENTIARY OBJECTIONS IN
SUPPORT OF ITS OPPOSITION TO
MOTION TO DISMISS THIRD
AMENDED CLASS ACTION
COMPLAINT AND TO DISMISS OR
STRIKE CLASS ACTION
ALLEGATIONS

Date: October 14, 2011
Time: 1:30 p.m.
Place: Courtroom 15
Judge: Hon. Edward M. Chen

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

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I.

INTRODUCTION

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Plaintiffs Boris Y. Levitt, d/b/a Renaissance Restoration, a/k/a Renaissance Furniture

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Restoration (“Levitt”), Cats and Dogs Animal Hospital, Inc. (“Cats and Dogs”), Tracy Chan,

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d/b/a Marina Dental Care, a/k/a Marina Dental Care (“Chan”), Professional Construction Group,

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Inc. d/b/a Paver Pro (“Paver Pro”), and John Mercurio d/b/a Wheel Techniques (“Wheel

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Techniques”) on behalf of themselves and all others similarly situated, hereby submit evidentiary

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objections to the evidence submitted by defendant Yelp! Inc. (“Yelp”) in support of Defendant

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Yelp! Inc.’s Motion to Dismiss Third Amended Class Action Complaint and to Dismiss or Strike

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Class Action Allegations. Plaintiffs specifically object to the declarations of Ashlie Beringer

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(Dkt. No. 79) and Ian MacBean (Dkt. No. 80), as set forth below:
II.

OBJECTIONS TO THE DECLARATION OF ASHLIE BERINGER

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Declaration of Ashlie Beringer

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Cite

Material Objected To:

Grounds for Objection:

Ex. 1

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Exhibit 1

Exhibit 1 is not properly authenticated. Fed.
R. Evid. (“FRE”) 901. The only attempt at
authentication is a statement that it is a “true
and correct copy” and a reference to an
internet website. Beringer Decl., ¶2. There
is no information as to how, why, when, or
what basis there is for the assertion that the
exhibit is a true and correct copy. Id.
Authentication is a “condition precedent to
admissibility,” and this condition is satisfied
by “evidence sufficient to support a finding
that the matter in question is what its
proponent claims.” FRE 901(a). The
declaration also provides no factual basis to
establish that the declarant has personal
knowledge of the document or its contents.
FRE 602.

¶2

Attached as Exhibit 1 is a true
and correct copy of the “About
Us” page from Yelp’s website,
http://www.yelp.com/about, which
is referenced in Plaintiffs’ Third
Amended Complaint at
paragraphs 2, 3, 5 and footnote
1.

Exhibit 1 is not authenticated and thus is
inadmissible. The statement that Exhibit 1 is
“referenced in Plaintiffs’ Third Amended
Complaint at paragraphs 2, 3, 5 and footnote
1” lacks foundation, is not based on personal
knowledge and is inaccurate. FRE 602. The
Third Amended Complaint never references
the “About Us” page from Yelp’s website.
See generally Third Amended Complaint

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ashlie Beringer

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Material Objected To:

Grounds for Objection:
(“TAC”). The TAC has no exhibits, let alone
the “About Us” page from Yelp’s website.
Id. Paragraphs 3, 5 and footnote 1 (but not
paragraph 2) do provide short quotes of
information taken from Yelp’s website – as
do previously filed complaints, including the
initial complaint filed on March 12, 2010 in
San Francisco Superior Court (“Complaint”).
Neither the Complaint nor the TAC could
have referenced Exhibit 1 because the print
and access date on the face of Exhibit 1 is
July 22, 2011 – long after these complaints
were filed. See Ex. 1. Equally implausible
and objectionable for similar reasons is
declarant’s contention that Exhibit 1 as well
as Exhibit 2 is referenced in paragraphs 3 and
5 of the TAC (Beringer Decl., ¶¶2-3) and that
Exhibit 1 as well as Exhibit 3 is referenced in
paragraph 5 of the TAC. Beringer Decl., ¶¶2,
4. Exhibit 1 therefore is irrelevant and
should not be considered. FRE 401, 402.

Ex. 2

Exhibit 2

Exhibit 2 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
Beringer Decl. ¶3. There is no information
as to how, why, when, or what basis there is
for the assertion that the exhibit is a true and
correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

¶3

Attached as Exhibit 2 is a true
and correct copy of the “FAQ”
page from Yelp’s website,
http://www.yelp.com/faq, which is
referenced in Plaintiffs’ Third
Amended Complaint at
paragraphs 3 and 5.

Exhibit 2 is not authenticated and thus is
inadmissible. The statement that Exhibit 2 is
“referenced in Plaintiffs’ Third Amended
Complaint at paragraphs 3 and 5” lacks
foundation, is not based on personal
knowledge and is inaccurate. FRE 602. The
TAC never references the “FAQ” page from
Yelp’s website. See generally TAC. The
TAC has no exhibits, let alone the “FAQ”
page from Yelp’s website. Id. Furthermore,
the document submitted as Exhibit 2 is 6
pages long, and the declaration does not
identify what information, if any, purportedly
is referenced in the TAC. Paragraphs 3 and 5
do provide short quotes of information taken
from Yelp’s website – as do previously filed
complaints, including the Complaint. The

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ashlie Beringer

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Material Objected To:

Grounds for Objection:
Complaint could not have referenced Exhibit
2 because the print and access date on the
face of Exhibit 2 is October 10, 2010 – 7
months after the Complaint was filed. See
Ex. 2. Equally implausible and objectionable
for similar reasons is declarant’s contention
that Exhibit 1 as well as Exhibit 2 is
referenced in paragraphs 3 and 5 of the TAC
(Beringer Decl., ¶¶2-3) and that Exhibit 2 as
well as Exhibit 3 is referenced in paragraph 5
of the TAC. Beringer Decl., ¶¶3-4. Exhibit 2
therefore is irrelevant and should not be
considered. FRE 401, 402.

Ex. 3

Exhibit 3

Exhibit 3 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
Beringer Decl. ¶4. There is no information
as to how, why, when, or what basis there is
for the assertion that the exhibit is a true and
correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

¶4

Attached as Exhibit 3 is a true
and correct copy of the
“Advertising on Yelp” page from
Yelp’s website,
http://www.yelp.com/business/ad
vertising, which is referenced in
Plaintiffs’ Third Amended
Complaint at paragraph 5.

Exhibit 3 is not authenticated and thus is
inadmissible. The statement that Exhibit 3 is
“referenced in Plaintiffs’ Third Amended
Complaint at paragraph 5” lacks foundation,
is not based on personal knowledge and is
inaccurate. FRE 602. The TAC never
references the “Advertising on Yelp” page
from Yelp’s website. See generally TAC.
The TAC has no exhibits, let alone the
“Advertising on Yelp” page from Yelp’s
website. Id. Paragraph 5 does provide short
quotes of information taken from Yelp’s
website – as do previously filed complaints,
including the Complaint. There is no print or
access date on the face of Exhibit 3, nor is
that information provided in the declaration.
Beringer Decl., ¶4. Therefore, because there
is no known date of the document, there is no
factual basis to support the assertion that
Exhibit 3 was referenced in the TAC or any
other complaint filed by Plaintiff in this
matter. Equally implausible and
objectionable for similar reasons is
declarant’s contention that Exhibit 3 as well
as Exhibit 1 and Exhibit 2 are referenced in

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ashlie Beringer

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Cite

Material Objected To:

Grounds for Objection:
paragraph 5 of the TAC. Beringer Decl.,
¶¶2-4. Exhibit 3 therefore is irrelevant and
should not be considered. FRE 401, 402.

Ex. 4

Exhibit 4

Exhibit 4 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
Beringer Decl. ¶5. There is no information
as to how, why, when, or what basis there is
for the assertion that the exhibit is a true and
correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

¶5

Attached as Exhibit 4 is a true
and correct copy of the “Terms of
Service” from Yelp’s website,
http://www.yelp.com/static?p=tos
&country=US, which is
referenced in Plaintiffs’ Third
Amended Complaint at
paragraphs 6, 34, 40, and
footnote 5. The “Terms of
Service” are also incorporated by
Plaintiffs into their definition of
“Review Terms,” (see TAC ¶ 6)
which is referenced throughout
the Third Amended Complaint,
including at paragraphs 7, 10, 66,
67, 95, 96, 98, 101, 105, 113,
117, 134, and 142.

Exhibit 4 is not authenticated and thus is
inadmissible. The statement that Exhibit 4 is
“referenced in Plaintiffs’ Third Amended
Complaint at paragraphs 6, 34, 40, and
footnote 5” lacks foundation, is not based on
personal knowledge and is inaccurate. FRE
602. The TAC never references the “Terms
of Service” page from Yelp’s website. See
generally TAC. The TAC has no exhibits, let
alone the “Terms of Service” page from
Yelp’s website. Id. The TAC contains no
quoted information from Yelp’s website that
is defined as “Terms of Service.”
Furthermore, although the TAC defines the
term “Review Terms,” that definition does
not specifically incorporate Exhibit 4 or
separately define the phrase “terms of
service.” Finally, neither the Complaint nor
the TAC could have referenced Exhibit 4
because the print and access date on the face
of Exhibit 4 is July 22, 2011 – long after
these complaints were filed. See Ex. 4.
Furthermore, the references in the TAC to the
defined term “Review Terms” is based only
on the quoted information in the TAC and
thus could not be based or incorporate the 4
page document submitted as Exhibit 4.
Equally implausible and objectionable for
similar reasons is declarant’s contention that
Exhibit 4 as well as Exhibit 5 is referenced in
paragraph 6 and footnote 5 of the TAC.
Beringer Decl., ¶¶5-6. Exhibit 4 therefore is
irrelevant and should not be considered. FRE
401, 402.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ashlie Beringer

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Material Objected To:
Exhibit 5

Grounds for Objection:

¶6

Attached as Exhibit 5 is a true
and correct copy of the. “Content
Guidelines” page from Yelp’s
website,
http://www.yelp.com/guidelines,
which is referenced in Plaintiffs’
Third Amended Complaint at
paragraphs 6 and footnote 5. The
“Content Guidelines” are also
incorporated by Plaintiffs into
their definition of “Review
Terms,” (see TAC ¶ 6) which is
referenced throughout the Third
Amended Complaint, including at
paragraphs 7, 10, 66, 67, 95, 96,
98, 101, 105, 113, 117, 134 and
142.

Exhibit 5 is not authenticated and thus is
inadmissible. The statement that Exhibit 5 is
“referenced in Plaintiffs’ Third Amended
Complaint at paragraphs 6 and footnote 5”
lacks foundation, is not based on personal
knowledge and is inaccurate. FRE 602. The
TAC never references the “Content
Guidelines” page from Yelp’s website. See
generally TAC. The TAC has no exhibits, let
alone the “Content Guidelines” page from
Yelp’s website. Id. The TAC contains no
quoted information from Yelp’s website that
is defined as “Content Guidelines.”
Furthermore, although the TAC defines the
term “Review Terms,” that definition does
not specifically incorporate Exhibit 5 or
separately define the phrase “content
guidelines.” Finally, neither the Complaint
nor the TAC could have referenced Exhibit 4
because the print and access date on the face
of Exhibit 5 is July 22, 2011 – long after
these complaints were filed. See Ex. 5.
Furthermore, the references in the TAC to the
defined term “Review Terms” is based only
on the quoted information in the TAC and
thus could not be based or incorporate the 2
page document submitted as Exhibit 5.
Equally implausible and objectionable for
similar reasons is declarant’s contention that
Exhibit 5 as well as Exhibit 4 is referenced in
paragraph 6 and footnote 5 of the TAC.
Beringer Decl., ¶¶5-6. Exhibit 4 therefore is
irrelevant and should not be considered. FRE
401, 402.

Ex. 6

Exhibit 6

Exhibit 6 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”

Ex. 5

Exhibit 5 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
Beringer Decl. ¶6. There is no information
as to how, why, when, or what basis there is
for the assertion that the exhibit is a true and
correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ashlie Beringer

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Cite

Material Objected To:

Grounds for Objection:
and a reference to red-lined comparison.
Beringer Decl. ¶6. There is no information
as to who, how, why, when, where or what
basis there is for the assertion that the exhibit
is a true and correct copy. Id. The
declaration also provides no factual basis to
establish that the declarant has personal
knowledge of the document or its contents.
FRE 602.

¶7

Attached as Exhibit 6 is a true
and correct copy of a red-lined
comparison of the Third
Amended Complaint to the
Second Amended [sic]
Compliant.

Exhibit 6 is not authenticated and thus is
inadmissible. FRE 901.

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III.

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OBJECTIONS TO THE DECLARATION OF IAN MACBEAN
Declaration of Ian Macbean

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Material Objected To:

Grounds for Objection:

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¶2

I personally reviewed the user
accounts and related
administrative records associated
with each user who has posted a
review about any of the named
Plaintiffs’ businesses on
Yelp.com at any point in time. I
then took several steps to
determine whether any of these
users was a current or former
employee of Yelp. First, I
determined whether the user’s
Yelp profile was flagged in the
administrative database as being
associated with one of Yelp’s
current or former employees.
Yelp’s practice is to flag user
accounts that are associated with
any current or former employee,
in part to enforce its policy that
certain employees (including
sales employees) are prohibited
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Declarant’s assertions that “Yelp’s practice is
to flag user accounts that are associated
with any current or former employee” and
that Yelp’s has a policy and “enforce[s]
its policy that certain employees
(including sales employees) are
prohibited from contributing any written
content, including reviews, to Yelp.com”
(MacBean Decl., ¶2) lack foundation
because declarant provides no foundation
or factual basis to support his speculation and
declarant lacks personal knowledge. FRE
602. For similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provided only his
position as a “Manager” in “User
Operations” and a general description of
what appears to be a few of his
responsibilities (MacBean Decl., ¶1) but
provides no information on his tenure with
Yelp, how he would be qualified to provide
such information, whether it is part of his job,
whether he knows what Yelp’s policies are,
whether he developed or created policies for
Yelp, whether he is authorized to provide

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
from contributing any written
content, including reviews, to
Yelp.com. I confirmed that none
of the users who posted reviews
relating to the named Plaintiffs
are identified as current or former
employees of Yelp in Yelp’s
administrative database.

Grounds for Objection:
information about Yelp’s policies on its
behalf and whether he has access to
information about Yelp’s policies that would
have been in effect at the times relevant to
the conduct alleged in the Complaint and
TAC. FRE 602, 801, 802. To the extent that
any of Yelp’s policies and practices are in
writing, declarant’s attempt to speculate
about the content or to recount the contents
of those documents violates the Best
Evidence Rule. FRE 1002.
Similarly, declarant’s statement that he
“confirmed that none of the users . . . are
identified as current or former employees of
Yelp in Yelp’s administrative database”
lacks foundation because declarant
provides no foundation or factual basis to
support his speculation and declarant lacks
personal knowledge. FRE 602. The
statement is also untrustworthy and
inadmissible hearsay. FRE 801, 802.
Declarant provided no foundation or factual
basis on how he would be qualified to
provide such information, whether it is part
of his job, what the source and extent of
information is in Yelp’s “administrative
database,” how any search was performed,
who performed it, when it was performed, or
whether declarant is qualified or authorized
to undertake any such searches. FRE 602,
801, 802. Moreover, declarant’s contention
that he confirmed no current or former Yelp
employees were “users” on Yelp that posted
reviews about plaintiffs is based upon
inadmissible hearsay information purportedly
from a third party – the information provided
by users to Yelp during the registration
process. FRE 801, 802, 805. Any such
information is also untrustworthy because
declarant provides no information that Yelp
in any way verifies or requires verification of
any name that a user provides to register at
Yelp. Id. Declarant lacks personal
knowledge as to each user’s true name and
identity. FRE 602.

¶3

Second, I reviewed each email
address provided by the users
who posted these reviews when

Declarant’s statement that he “confirmed that
none of the users . . . provided a Yelp email
address when creating their user account, or
otherwise have a Yelp email address

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
creating their account at
Yelp.com to determine whether
any user provided a Yelp email
address – i.e. an address with an
“@yelp.com” domain. I confirmed
that none of the users who
posted reviews about the named
Plaintiffs provided a Yelp email
address when creating their user
account, or otherwise have a
Yelp email address associated
with their user account.

Grounds for Objection:
associated with their user account” lacks
foundation because declarant provides no
foundation or factual basis to support his
speculation and declarant lacks personal
knowledge. FRE 602. The statement is also
untrustworthy and inadmissible hearsay.
FRE 801, 802. Declarant provided no
foundation or factual basis on how he would
be qualified to perform such a review,
whether it is part of his job, how the review
was performed, what steps he took to
determine whether an @yelp.com email
address was “otherwise associated” with a
user account, when the review was
performed, or whether declarant is qualified
or authorized to undertake any such searches.
FRE 602, 801, 802. Moreover, declarant’s
contention that he confirmed none of the
users provided an @yelp.com email address
is based upon inadmissible hearsay, because
declarant admits the information was
provided by third parties – it was “provided
[by users] . . . when creating their user
account.” FRE 801, 802, 805. Any such
information is also untrustworthy because
declarant provides no information that Yelp
in any way can verify, does verify or requires
verification of any email address that a user
provides to register at Yelp. Id. Declarant
lacks personal knowledge as to each user’s
email address and whether any such email
address is associated with a current or former
Yelp employee. FRE 602.

¶4

Third, I ran a search for each
user’s first and last name (which
are required to create a user
account and post reviews on
Yelp) in a database of all current
and former Yelp employees. I
confirmed that none of the users
who posted reviews about the
named Plaintiffs appeared in the
list of all current and former Yelp
employees.

Declarant’s statement that he “confirmed that
none of the users . . . appeared in the list of
all current or former Yelp employees” lacks
foundation because declarant provides no
foundation or factual basis to support his
speculation and declarant lacks personal
knowledge. FRE 602. The statement is also
untrustworthy and inadmissible hearsay.
FRE 801, 802. Declarant provided no
foundation or factual basis on how he would
be qualified to provide such information,
whether it is part of his job, what is the
source and extent of information in “the list
of all current and former Yelp employees,”
how any review was performed, when it was
performed, or whether declarant is qualified

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:

Grounds for Objection:
or authorized to undertake any such reviews.
FRE 602, 801, 802. Moreover, declarant’s
contention that he confirmed none of the
users provided a name that appeared on a list
of Yelp employees is based upon
inadmissible hearsay, because declarant
admits the first and last name information
was provided by third parties – the users
from whom it is “required to create a user
account.” FRE 801, 802, 805. Any such
information is also untrustworthy because
declarant provides no information that Yelp
in any way can verify, does verify or requires
verification of any name that a user provides
to create a user account at Yelp. Id.
Declarant lacks personal knowledge as to
each user’s true name and identity. FRE 602.

¶5

Finally, I reviewed each IP
address (i.e. the unique identifier
associated with a particular
computer) associated with each
review posted about the named
Plaintiffs and confirmed that none
of these IP addresses are
associated with any Yelp
computer or device.

Declarant’s statement that he “confirmed
none of these IP addresses are associated
with any Yelp computer or device” lacks
foundation because declarant provides no
foundation or factual basis to support his
speculation and declarant lacks personal
knowledge. FRE 602. The statement is also
untrustworthy and inadmissible hearsay.
FRE 801, 802. Declarant provided no
foundation or factual basis on how he would
be qualified to provide such information,
whether it is part of his job, the source of
information for the IP address associated
with each review, what the source and extent
of information is for “any Yelp computer or
device,” how any review was performed,
when it was performed, or whether declarant
is qualified or authorized to undertake any
such reviews. FRE 602, 801, 802.
Moreover, declarant’s contention that he
confirmed none of the IP addresses is
associated with a Yelp computer or device is
based upon inadmissible hearsay, because the
IP address can be changed by the user of a
computer or device. FRE 801, 802, 805.
Any such information is also untrustworthy
because declarant provides no information
that Yelp in any way can verify, does verify
or requires verification of any IP address that
a computer or device provides via its user
creating a review on Yelp. Id. Declarant
lacks personal knowledge as to each user’s

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:

Grounds for Objection:
true IP address. FRE 602.

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¶6

Neither Yelp’s sales employees
nor its User Operations
employees have the technical
ability to modify the content of
third-party reviews that appear
on Yelp’s site.

Declarant’s statement that “[n]either Yelp’s
sales employees nor its User Operations
employees have the technical ability to
modify the content of third-party reviews
that appear on Yelp’s site” lacks
foundation because declarant provides no
foundation or factual basis to support his
speculation and declarant lacks personal
knowledge. FRE 602. The statement is also
untrustworthy and inadmissible hearsay.
FRE 801, 802. Declarant provided no
foundation or factual basis on how he would
be qualified to provide such information (he
purports to have information about sales
employees yet is not even a sales employee),
how he knows the “technical ability” of each
sales and User Operations employee, whether
making such determinations is part of his job,
what it means to modify the content of
reviews, the timeframe to which this
statement pertains, or whether declarant is
qualified or authorized to provide this
statement. FRE 602, 801, 802. Declarant
lacks personal knowledge as to each member
of the sales and User Operation’s technical
ability to modify reviews. FRE 602. The
statement is also irrelevant because sales and
Users Operations employees are only two
groups of Yelp employees – there are other
Yelp employees who could be modifying
reviews and declarant does not eliminate this
possibility. FRE 401, 402.

¶7

The default order in which
reviews appear on a particular
business page is governed by an
automated software algorithm
called “Yelp Sort,” which orders
reviews based on a number of
factors including recency, user
voting, and other review quality
factors. As stated on Yelp’s
website, Yelp Sort does not
consider whether or not a
business advertises on Yelp. No
Yelp sales or User Operations
employee has the technical
10

Declarant’s assertions that a “Yelp Sort”
algorithm, which “orders reviews based
on a number of factors including recency,
user voting, and other review quality
factors” lack foundation because
declarant provides no foundation or factual
basis to support his speculation and declarant
lacks personal knowledge. FRE 602. For
similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, how he
would be qualified to provide such
information, whether the algorithm is part of
his job, whether he knows about Yelp’s
algorithm, what all the factors are – not just

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
ability to alter or impact the
default order in which reviews
appear on Yelp.com. Users,
however, are able to revise the
defaults established by “Yelp
Sort” so as to change the manner
in which reviews are sorted when
they are viewing Yelp.com,
including by sorting reviews
chronologically (with most recent
review first or last), by star rating
(from highest to lowest (or vice
versa)), or by showing reviews
from their friends on Yelp first.

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Grounds for Objection:
some of the factors, whether he developed or
created algorithms for Yelp, whether he is
qualified or authorized to provide
information about Yelp’s algorithm on its
behalf and whether he has access to
information about Yelp’s algorithm that
would have been in effect at the times
relevant to the conduct alleged in the
Complaint and TAC. FRE 602, 801, 802. To
the extent that Yelp’s algorithm is written
and its effect or function is documented in
writing, declarant’s attempt to speculate
about the content or to recount the contents
of those writings violates the Best Evidence
Rule. FRE 1002.
Declarant’s assertion that “[a]s stated on
Yelp’s website, Yelp Sort does not
consider whether or not a business
advertises on Yelp” lacks foundation
because declarant provides no foundation
or factual basis to support his speculation and
declarant lacks personal knowledge. FRE
602. For similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, how he
would be qualified to provide such
information, whether it is part of his job,
whether he knows what Yelp’s policies are,
whether he developed or created policies for
Yelp, whether he is authorized to provide
information about Yelp’s policies on its
behalf and whether he has access to
information about Yelp’s policies that would
have been in effect at the times relevant to
the conduct alleged in the Complaint and
TAC. FRE 602, 801, 802. To the extent
Yelp’s policies are set forth on its website,
declarant’s attempt to speculate about the
content or to recount the contents of those
writings violates the Best Evidence Rule.
FRE 1002.
Declarant’s statement that “[n]either Yelp’s
sales employees nor its User Operations
employees have the technical ability to
alter or impact the default order in which
reviews appear on Yelp.com” lacks
foundation because declarant provides no
foundation or factual basis to support his

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:

Grounds for Objection:
speculation and declarant lacks personal
knowledge. FRE 602. The statement is also
untrustworthy and inadmissible hearsay.
FRE 801, 802. Declarant provided no
foundation or factual basis on how he would
be qualified to provide such information (he
purports to have information about sales
employees yet is not even a sales employee),
how he knows the “technical ability” of each
sales and User Operations employee, whether
making such determinations is part of his job,
what it means to alter or impact the order of
reviews, the timeframe to which this
statement pertains, or whether declarant is
qualified or authorized to provide this
statement. FRE 602, 801, 802. Declarant
lacks personal knowledge as to each member
of the sales and User Operation’s technical
ability to modify sort orders. FRE 602. The
statement is also irrelevant because sales and
Users Operations employees are only two
groups of Yelp employees – there are other
Yelp employees who could be modifying the
order of reviews and declarant does not
eliminate this possibility. FRE 401, 402.
The remainder of declarant’s statements
regarding a user’s ability to manipulate the
sort order of reviews is irrelevant to the
issues presented in the motion to dismiss.
FRE 401, 402.

¶8

As described on Yelp’s website,
Yelp employs an automated
review filter for the purpose of
identifying and filtering reviews
that may be unreliable and/or
violate Yelp’s Terms of Service.
This software filter applies a
number of factors to identify
reviews that are less reliable, and
it affects both positive and
negative reviews. As stated on
Yelp’s website, the filter does not
take into account whether a
business advertises with Yelp or
not. Reviews that are filtered by
Yelp’s automated filter are not

Declarant’s assertions that “[a]s described on
Yelp’s website, Yelp employs an
automated review filter for the purpose of
identifying and filtering reviews that may
be unreliable and/or violate Yelp’s Terms
of Service” and “[a]s stated on Yelp’s
website, the filter does not take into
account whether a business advertises
with Yelp or not” lack foundation because
declarant provides no foundation or factual
basis to support his speculation and declarant
lacks personal knowledge. FRE 602. For
similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, how he
would be qualified to provide such
information about the filter, whether it is part
of his job, whether he knows how Yelp’s

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
displayed on a business’s main
profile page, and do not factor
into a business’s overall Yelp star
rating. Filtered reviews may be
viewed on a separate page by
clicking on the link at the bottom
of any business profile page that
has received filtered reviews.
The filter is running continuously
across all reviews on Yelp and
operates based on up to date
information. Accordingly, reviews
that were filtered by the
automated filter in the past may
reappear on a business’s main
profile page if applicable factors
change (such as the reviewer
gaining trust over time).

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Grounds for Objection:
filter functions, whether he developed or
created the filter for Yelp, whether he is
authorized or qualified to provide
information about Yelp’s filter on its behalf
and whether he has access to information
about Yelp’s filter that would have been in
effect at the times relevant to the conduct
alleged in the Complaint and TAC. FRE
602, 801, 802. To the extent information
about the function of Yelp’s filter is set forth
on its website, declarant’s attempt to
speculate about the content or to recount the
contents of those writings violates the Best
Evidence Rule. FRE 1002.
Declarant’s assertions about the filter
“running continuously” and that “reviews
that were filtered by the automated filter in
the past may reappear on a business’s main
profile page if applicable factors change
(such as the reviewer gaining trust over
time)” lack foundation because declarant
provides no foundation or factual basis to
support his speculation and declarant lacks
personal knowledge. FRE 602. For similar
reasons, the statements are untrustworthy and
are inadmissible hearsay. FRE 801, 802.
Declarant provides no information on his
tenure with Yelp, how he would be qualified
to provide such information about the filter,
whether it is part of his job, whether he
knows how Yelp’s filter functions, whether
he developed or created the filter for Yelp,
whether he is authorized or qualified to
provide information about Yelp’s filter on its
behalf and whether he has access to
information about Yelp’s filter that would
have been in effect at the times relevant to
the conduct alleged in the Complaint and
TAC. FRE 602, 801, 802. The information
is also of questionable reliability because it
refers to the reappearance of a filtered review
“if applicable factors change” but only
purports to provide one such factor. Id. To
the extent information about the function of
Yelp’s filter is set forth in writing or on its
website, declarant’s attempt to speculate
about the content or to recount the contents
of those writings violates the Best Evidence
Rule. FRE 1002.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:

Grounds for Objection:

¶9

2

When the automated filter
identifies and filters a review, that
review is automatically “shaded”
in Yelp’s internal administrative
database, and is flagged with the
notation “Untrustworthy
(Filtered).”

Declarant’s assertion about the filter shading
a review and flagging it in “Yelp’s internal
administrative database” lacks foundation
because declarant provides no foundation
or factual basis to support his speculation and
declarant lacks personal knowledge. FRE
602. For similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, how he
would be qualified to provide such
information about the filter and
administrative database, whether it is part of
his job, whether he knows how Yelp’s filter
and the administrative database functions,
whether he developed or created the filter or
administrative database for Yelp, whether he
is authorized or qualified to provide
information about Yelp’s filter and
administrative database on its behalf and
whether he has access to information about
Yelp’s filter and administrative database that
would have been in effect at the times
relevant to the conduct alleged in the
Complaint and TAC. FRE 602, 801, 802. To
the extent information about the function of
Yelp’s filter and administrative database is
set forth in writing or on its website,
declarant’s attempt to speculate about the
content or to recount the contents of those
writings violates the Best Evidence Rule.
FRE 1002.

Ex. 1

Exhibit 1

Exhibit 1 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
MacBean Decl., ¶10. There is no
information as to how, why, or when to
support the assertion that the exhibit is a true
and correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

¶ 10

Attached as Exhibit 1 is a true
and correct copy of Yelp’s Terms
of Service, dated July 21, 2010,
and available at
http://www.yelp.com/static?p=tos
14

Exhibit 1 is not authenticated and thus is
inadmissible. Exhibit 1 is also irrelevant
because there is no foundation or factual
basis to establish whether the purported terms
of service would have been in effect at the

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
&country=US. Section 6.A.i. of
Yelp’s Terms of Service prohibits
violations of Yelp’s Content
Guidelines.

Grounds for Objection:
times relevant to the conduct alleged in the
TAC. FRE 401, 402.

Ex. 2

Exhibit 2

Exhibit 2 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that it is a “true and correct copy”
and a reference to an internet website.
MacBean Decl., ¶11. There is no
information as to how, why, or when to
support the assertion that the exhibit is a true
and correct copy. Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602.

¶ 11

Attached as Exhibit 2 is a true
and correct copy of Yelp’s
Content Guidelines, available at
http://www.yelp.com/guidelines.

Exhibit 2 is not authenticated and thus is
inadmissible. Exhibit 2 is also irrelevant
because there is no foundation or factual
basis to establish whether the purported terms
of service would have been in effect at the
times relevant to the conduct alleged in the
TAC, particularly since the access or print
date on Exhibit 2 is July 22, 2011, which is
well after the filing of the Complaint and the
TAC. FRE 401, 402.

¶ 14

As described previously, I
reviewed Yelp’s administrative
records pertaining to each review
posted about Plaintiff Wheel
Techniques, of Santa Clara,
California. As of July 21, 2011,
Wheel Techniques had 31 active,
unfiltered reviews (with a 2.5
average star rating), 51 reviews
that were filtered by Yelp’s
automated review filter, 7 reviews
or review updates that Yelp’s
User Operations team removed
for violations of Yelp’s Terms of
Service, and three reviews which
were removed by the users
themselves.

Declarant’s assertion about the results of his
review of Wheel Techniques’ reviews,
including which reviews were purportedly
filtered or removed by the User Operations
team or by reviewers lacks foundation
because declarant provides no foundation
or factual basis to support his assertions and
lacks personal knowledge. FRE 602. For
similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, he does
not describe any of the records he reviewed,
how the information was obtained, how he
would be qualified to provide such
information about the filter and how
particular reviews were removed, whether it
is part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Wheel Techniques.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:

Grounds for Objection:
FRE 602, 801, 802. The information is
particularly unreliable because declarant
states that whether a review is filtered or not
is moving target because “[t]he filter is
running continuously across all reviews
on Yelp and operates based on up to
date information” which means that
previously filtered reviews “may reappear
on a business’s main profile page.”
MacBean Decl., ¶8. Therefore,
declarant’s information is irrelevant
because it could only be accurate as to
the point in time it was examined– July
21, 2011 – and could not address the
relevant conduct and timeframes alleged
in the TAC. FRE 401, 402.
Declarant claims to have “reviewed Yelp’s
administrative records” but no such records
are provided. Thus, declarant’s attempt to
speculate about the content or to recount the
contents of those writings violates the Best
Evidence Rule. FRE 1002.

Ex. 3

Exhibit 3

Exhibit 3 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that “[c]opies of each of these
reviews and related information from
Yelp’s administrative records are
attached as Exhibit 3” and a reference to an
internet website. MacBean Decl., ¶15
(emphasis added). There is no information as
to how, why, when or where to support the
assertion that the exhibit is a copy of “related
information.” Id. The declaration also
provides no factual basis to establish that the
declarant has personal knowledge of the
document or its contents. FRE 602. The
document attached as Exhibit 3 on its face
gives rise to questions of reliability and
trustworthiness because much of the socalled “related information” declarant relies
upon from the administrative records for his
assertions, is not contained in the document.
For example, declarant states that 6 of the
reviews listed in Exhibit 3 were removed for
violations of the Terms of Service, but that
information appears nowhere in Exhibit 3.
Nor does Exhibit 3 contain the alleged
specific violation of the Terms of Service
which declarant asserts. See MacBean Decl.,

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:

Grounds for Objection:
¶¶14-15. Similarly, nowhere on Exhibit 3 is
there any information about when a review
was purportedly filtered as “Untrustworthy.”
Without proper authentication and
foundation, the document is inadmissible
hearsay. FRE 801, 802.

¶ 15

Of the 7 Wheel Techniques
reviews removed for violations of
Yelp’s Terms of Service, 6 were
5-star reviews or review updates
posted by the same user, Ellyn
M, between November 24, 2008
and April 22, 2010. Copies of
each of these reviews and
related information from Yelp’s
administrative records are
attached as Exhibit 3. Each of
Ellyn M.’s reviews of Wheel
Techniques was removed on
March 31, 2011 due to violations
of Yelp’s Terms of Service and
Content Guidelines, which
prohibit reviews that are “conflicts
of interest.” Exhibit 2 (“Conflicts
of interest: Your reviews should
be unbiased and objective. For
example, businesses and their
employees shouldn't write
reviews about themselves or
their competitors.”). Each of
these removed reviews was also
marked as “Untrustworthy
(Filtered)” by Yelp’s review filter,
meaning that even if they had not
been removed by Yelp’s User
Operations team, they would be
filtered by Yelp’s automated
software and would not show up
on Wheel Techniques’ main Yelp
profile page. A seventh review by
Ellyn M. posted to Yelp on May
2, 2011 (after the removal of this
user’s other reviews of Wheel
Techniques), is currently filtered,
17

Declarant’s assertion that reviews were
removed for “violations of Yelp’s Terms of
Service” and “Content Guidelines” lacks
foundation because declarant provides no
foundation or factual basis to support his
assertions and lacks personal knowledge.
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed which would possibly indicate the
reason a review was removed, he provides no
information on how the information was
obtained, how he would be qualified to
provide such information about the filter and
how particular reviews were removed,
whether it is part of his regular job, whether
he is authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Wheel Techniques.
FRE 602, 801, 802. The information is
particularly unreliable because declarant
states that whether a review is filtered or not
is moving target because “[t]he filter is
running continuously across all reviews
on Yelp and operates based on up to
date information” which means that
previously filtered reviews “may reappear
on a business’s main profile page.”
MacBean Decl., ¶8. It is also unreliable
because nowhere in the alleged
“administrative records” attached as
Exhibit 3 is there any information about
why any particular review was removed
and who removed it. Therefore,
declarant’s information is irrelevant
because it could only be accurate as to
the point in time it was examined– July
21, 2011 – and could not address the
relevant conduct and timeframes alleged

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
although it has not yet been
removed by Yelp’s User
Operations team.

Grounds for Objection:
in the TAC. FRE 401, 402.
Declarant claims to base his statements on his
“review[] [of] Yelp’s administrative records”
but the purported records do not contain the
information declarant is asserting – such as
why a particular review was removed and
who removed it and declarant lacks personal
knowledge. FRE 602. Declarant’s attempt to
speculate about the content or to recount the
contents of writings (particularly any records
not provided that would show why a review
was removed) violates the Best Evidence
Rule. FRE 1002.

Ex. 4

Exhibit 4

Exhibit 4 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that a “true and correct copy” of
a February 23, 2010 “message” is
attached as Exhibit 4. MacBean Decl.,
¶16. There is no information as to how, why,
when or where to support the assertion that
the exhibit is a copy of this message. Id. The
declaration also provides no factual basis to
establish that the declarant has personal
knowledge of the document or its contents,
without knowing facts establishing
declarant’s tenure at Yelp (was he even
employed in February 2010) and/or whether
reviewing or obtaining this message falls
within his job purview, there is no basis for
either authentication or personal knowledge,
and the exhibit is inadmissible. FRE 602,
901.
Furthermore, the February 2010 document is
not identified as a review posted on Yelp and
thus has no relevance to the claims asserted
in the TAC. FRE 401, 402.

¶ 16

On February 23, 2010, Yelp
received a complaint from a user
about communications he had
received from Ellyn M. through
Yelp’s messaging systems. A
true and correct copy of the
user’s complaint to Yelp, which
includes the communication from
Ellyn M. that prompted the user’s
complaint, is attached as Exhibit

Declarant’s assertion that Yelp received a
complaint about a user in February 2010
lacks foundation because declarant
provides no foundation or factual basis to
support his assertions and lacks personal
knowledge. FRE 602. For similar reasons,
the statements are untrustworthy and are
inadmissible hearsay. FRE 801, 802.
Declarant provides no information on his
tenure with Yelp (whether he was even
employed by Yelp at the time), whether
reviewing complaints of this sort was part of

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
4 (an internal Yelp administrative
email address has been redacted
from this document). Ellyn M.’s
communication to the user states
in part: “Dear Vincent, We here
at Wheel Tech really feel put
down by your recent review and
want to let you know that legally
you cannot put such input out on
the net. If you read your invoice
we can legally sue you for any
positive OR negative reviews . . .
Please remove your negative
comments or we have no choice
to seek legal actions against you
. . . Hope to hear from you soon.
John Mercurio owner.”

Grounds for Objection:
his job responsibilities in 2010 (if he was
even employed by Yelp then), he does not
describe how the information was obtained
other than a vague reference to unidentified
Yelp “messaging systems,” how he would be
qualified to provide such information about a
complaint and whether he is authorized or
qualified to provide this information on
Yelp’s behalf. FRE 602, 801, 802.
Declarant’s assertions of the purported
content of the complaint (apparently from a
third party) as a true statement is
inadmissible hearsay. FRE 801, 802.
Declarant’s excerpts of the complaint omit
the purported comment or response to the
complaint which asks “[i]s Yelp going to
allow this?” Based on Exhibit 4 and
declarant’s statements, Yelp made no
response to this request from early 2010
which further calls into question the
reliability or trustworthiness of the hearsay
document. FRE 801, 802.
Finally, the document attached as Exhibit 4
relates to a message or conversation on Yelp
and not a posted review. Accordingly, it is
not relevant to any of the claims asserted in
the TAC. FRE 401, 402.

Ex. 5

Exhibit 5

Exhibit 5 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that a “true and correct copy” of
the profile of Ellyn M is attached as
Exhibit 5. MacBean Decl., ¶17. A review of
the document attached as Exhibit 5
demonstrates on its face that is not a true and
correct copy because there are pages which
are not included in Exhibit 5. In particular,
the profile references 34 reviews by the user
but only 11 reviews are contained in Exhibit
5. Likewise, the last page of the document
has the text “More<<” at the bottom of the
page.

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To the extent declarant relies upon or asserts
any statements from Exhibit 5 as true, they
are inadmissible hearsay. FRE 801, 802.

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¶ 17

Exhibit 4 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant

A true and correct copy of the
publicly available Yelp profile
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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
page for Ellyn M., available at
http://www.yelp.com/user_details
?userid=dcuTyUmp5K4WuQma3
fkNZQ, is attached as Exhibit 5.
On this page, Ellyn M. states that
users can “find me on facebook
under ellyn mercurio.”

Grounds for Objection:
relies upon and asserts that a statement
contained in Exhibit 4 (from a third party)
that Ellyn M. can be found “on facebook
under ellyn mercurio” is inadmissible
hearsay. FRE 801, 802.

Ex. 6

Exhibit 6

Exhibit 6 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant
provides no factual basis for the exhibit other
than asserting it is a “true and correct copy”
and provides an internet address. Id.
Moreover, a document from the Facebook
website – which has nothing to do with Yelp
or Yelp reviews – is irrelevant to Plaintiffs’
claims in the TAC. FRE 410, 402.

¶ 18

A true and correct copy of the
Facebook page for “Ellen
Mercurio,” available
athttps://www.facebook.com/peo
ple/EllenMercurio/100000163710129, is
attached as Exhibit 6. On this
page, Ms. Mercurio identifies
herself as an owner of Wheel
Techniques.

Exhibit 6 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant
relies upon and asserts as true that a
statement contained in Exhibit 6 (pages from
the Facebook website) that the person’s
Facebook page identifies them as “an owner
of Wheel Techniques” is inadmissible
hearsay and is not based on declarant’s
personal knowledge. FRE 602, 801, 802.
Declarant appears to be relying in part on
inadmissible hearsay contained in Exhibit 5
as well as inadmissible hearsay contained in
Exhibit 6. Id. Declarant takes as true the
statement (in Exhibit 5) that “ellyn m” can be
found on Facebook as “ellyn mercurio.” This
information is untrustworthy and unreliable
because as Exhibit 6 makes plain, the
Facebook page submitted is not “ellyn
mercurio” but instead is “Ellen Mercurio
(Ellen Millet Mercurio).” There is no
correlation between the information in
Exhibit 5 and Exhibit 6. This confirms that
the inadmissible hearsay statements in both
exhibits are untrustworthy and unreliable.
FRE 801, 802.

¶ 19

The seventh Wheel Techniques
review removed for violations of
Yelp’s Terms of Service was a 5star review from a user that
identified itself as Axiom Auto

Declarant’s assertion that a Wheel
Techniques review from a user known as
Axiom Auto Group was removed when the
user’s account was closed because it
“violated Yelp’s Terms of Service” lacks
foundation because declarant provides no

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Material Objected To:
Group. This review (along with all
other reviews posted by that
user) was removed by Yelp’s
User Operations team when the
user’s account was closed on
October 7, 2009, due to
unauthorized promotional
conduct on Yelp’s website that
violated Yelp’s Terms of Service,
which provide that a user cannot
“[p]romote a business or other
commercial venture or event, or
otherwise use the Service for
commercial purposes, except in
connection with a Business
Account and as expressly
permitted by Yelp.” Exhibit 1 at
Section 6.A.iv. and Exhibit 2
(“Promotional content: Unless
you’re using your Business
Owners Account to add content
to your business’s profile page,
we generally frown upon
promotional content. Let’s keep
the site useful for consumers and
not overrun with commercial
noise from every user.”).

Grounds for Objection:
foundation or factual basis to support his
assertions and lacks personal knowledge.
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed which would possibly indicate the
reason a review was removed, he provides no
information on how the information was
obtained, how he would be qualified to
provide such information about why a
particular review was removed, whether it is
part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Wheel Techniques.
FRE 602, 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

¶ 20

I have reviewed Yelp’s records
pertaining to Plaintiff
Renaissance Furniture
Restoration, of San Francisco,
California. As of July 21, 2011,
Renaissance Furniture
Restoration had 14 active,
unfiltered reviews (with a 5 star
rating), 14 reviews that were
filtered by Yelp’s automated
review filter, three reviews that
Yelp’s User Operations team
removed for violations of Yelp’s
Terms of Service, and two
reviews which were removed by
the users themselves.

Declarant’s assertion about the results of his
review of Renaissance Furniture
Restoration’s reviews, including which
reviews were purportedly filtered or removed
by the User Operations team or by reviewers
lacks foundation because declarant
provides no foundation or factual basis to
support his assertions and lacks personal
knowledge. FRE 602. For similar reasons,
the statements are untrustworthy and are
inadmissible hearsay. FRE 801, 802.
Declarant provides no information on his
tenure with Yelp, he does not describe any of
the records he reviewed, how the information
was obtained, how he would be qualified to
provide such information about the filter and
how particular reviews were removed,
whether it is part of his regular job, whether

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:

Grounds for Objection:
he is authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Renaissance
Furniture Restoration. FRE 602, 801, 802.
The information is particularly unreliable
because declarant states that whether a
review is filtered or not is moving target
because “[t]he filter is running
continuously across all reviews on Yelp
and operates based on up to date
information” which means that previously
filtered reviews “may reappear on a
business’s main profile page.” MacBean
Decl., ¶8. Therefore, declarant’s
information is irrelevant because it could
only be accurate as to the point in time it
was examined– July 21, 2011 – and
could not address the relevant conduct
and timeframes alleged in the TAC. FRE
401, 402.
Declarant claims to have “reviewed Yelp’s
administrative records” but no such records
are provided. Thus, declarant’s attempt to
speculate about the content or to recount the
contents of those writings violates the Best
Evidence Rule. FRE 1002.

¶ 21

Of the three Renaissance
Furniture Restoration reviews
removed for violations of Yelp’s
Terms of Service, one was a 5star review submitted by user
Boris L., one was a 5-star review
submitted by user Zhopik b., and
one was a 5-star review
submitted by user Dan H. Boris
L.’s 5-star review of Renaissance
Furniture Restoration was
removed on October 14, 2009 for
violating Yelp’s Terms of Service
and Content Guidelines which
prohibit reviews that are “conflicts
of interest.” Exhibit 2 (“Conflicts
of interest: Your reviews should
be unbiased and objective. For

Declarant’s assertion that Renaissance
Furniture Restoration reviews were removed
for “violating Yelp’s Terms of Service and
Content Guidelines” for a review submitted
by Boris L. lacks foundation because
declarant provides no foundation or factual
basis to support his assertions and lacks
personal knowledge. FRE 602. For similar
reasons, the statements are untrustworthy and
are inadmissible hearsay. FRE 801, 802.
Declarant provides no information on his
tenure with Yelp, he does not describe any of
the records he reviewed which would
possibly indicate the reason a review was
removed, he provides no information on how
the information was obtained, how he would
be qualified to provide such information
about why a particular review was removed,
whether it is part of his regular job, whether
he is authorized or qualified to provide this
information on Yelp’s behalf and whether

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Ex. 7

Material Objected To:
example, businesses and their
employees shouldn't write
reviews about themselves or
their competitors.”). Boris L. had
identified himself to Yelp during
his account creation as Boris
Levitt, who is the owner of
Renaissance Furniture
Restoration. This removed
review was also marked as
“Untrustworthy(Filtered)” by
Yelp’s review filter, meaning that
even if it had not been removed
by Yelp’s User Operations team,
it would be filtered by Yelp’s
automated software and would
not show up on Renaissance
Furniture Restoration’s main Yelp
profile page.

Grounds for Objection:
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Renaissance
Furniture Restoration. FRE 602, 801, 802.

Exhibit 7

Exhibit 7 is not properly authenticated. FRE
901. The only attempt at authentication is a
statement that a “true and correct copy” of
the Yelp profile of Boris L.” and an
internet address for the document
attached as Exhibit 7. MacBean Decl.,
¶22. A review of the document attached as
Exhibit 7 demonstrates on its face that is not
a true and correct copy because there are
pages which are not included in Exhibit 7. In
particular, the profile references 11 reviews
by the user but only 10 reviews are contained
in Exhibit 7. Likewise, the last page of the
document has the text “More<<” at the
bottom of the page.

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Declarant’s statements are based on
inadmissible hearsay because he takes as true
third party statements in Exhibits 7 and 8 that
Boris L. is in fact the owner of Renaissance
Furniture Restoration. FRE 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

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To the extent declarant relies upon or asserts
any statements from Exhibit 7 as true, they
are inadmissible hearsay. FRE 801, 802.

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¶ 22
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A true and correct copy of the
Yelp profile page for Boris L.
available at
http://www.yelp.com/user_details
?userid=EQ0Ln_QuAPKFXwFp6
TmgOw, is attached as Exhibit 7.

Exhibit 7 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant
relies upon and asserts as true that a
statement contained in Exhibit 7 that the
user’s profile page identifies the user’s “blog
or website” as www.renarest.com is
inadmissible hearsay and is not based on

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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2

Cite

Material Objected To:
On this page, Boris L. states that
his blog or website is
http://www.renarest.com.

Grounds for Objection:
declarant’s personal knowledge. FRE 602,
801, 802. A reference in a user profile to an
external (non-Yelp) website is irrelevant to
Plaintiffs’ claims regarding conduct on
Yelp’s site. FRE 401, 402.

Ex. 8

Exhibit 8

Exhibit 8 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant
provides no factual basis for the exhibit other
than asserting it is a “true and correct copy”
and provides an internet address. Id.
Moreover, a document from an external ,
non-Yelp website is irrelevant to Plaintiffs’
claims in the TAC. FRE 410, 402.

¶ 23

A true and correct copy of the
webpage available at
http://www.renarest.com is
attached as Exhibit 8. This
webpage is the website for
Renaissance Furniture
Restoration.

Exhibit 8 is not properly authenticated and
thus is inadmissible. FRE 901. Declarant
relies upon and asserts as true that a
statement contained in Exhibit 7 that the
user’s profile page identifies the user’s “blog
or website” as www.renarest.com and that
the specific internet address in fact is “the
website for Renaissance Furniture
Restoration” is inadmissible hearsay and is
not based on declarant’s personal knowledge.
FRE 602, 801, 802. A reference in a user
profile to an external (non-Yelp) website is
irrelevant to Plaintiffs’ claims regarding
conduct on Yelp’s site. FRE 401, 402.

¶ 24

Zhopik b.’s 5-star review of
Renaissance Furniture
Restoration was removed on
October 8, 2009 for violating
Yelp’s Terms of Service and
Content Guidelines, which
prohibit reviews that do not
reflect “firsthand consumer
experience.” Exhibit 2 (“Personal
experience: We want to hear
about your firsthand consumer
experience, not what you heard
from your co-worker or significant
other.”). Zhopik b.’s review
violated these prohibitions.

Declarant’s assertion that a Renaissance
Furniture Restoration review from a user
known as Zhopik b. was removed for
“violating Yelp’s Terms of Service” lacks
foundation because declarant provides no
foundation or factual basis to support his
assertions and lacks personal knowledge.
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed which would possibly indicate the
reason a review was removed, he provides no
information on how the information was
obtained, how he would be qualified to
provide such information about why a
particular review was removed, whether it is
part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:

Grounds for Objection:
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Renaissance
Furniture Restoration. FRE 602, 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

¶ 25

Dan H.’s 5-star review of
Renaissance Furniture
Restoration was removed (along
with all other reviews posted by
that user) by Yelp’s User
Operations team when the user’s
account was closed on March 23,
2010 due to his posting of
inappropriate content on Yelp.
Exhibit 2 (“Inappropriate content:
Colorful language and imagery is
fine, but there's no need for
threats, harassment, lewdness,
hate speech, and other displays
of bigotry.”).

Declarant’s assertion that a Renaissance
Furniture Restoration review from a user
known as Dan H. was removed when the
user’s account was closed “due to his posting
of inappropriate content” lacks foundation
because declarant provides no foundation
or factual basis to support his assertions and
lacks personal knowledge. FRE 602. For
similar reasons, the statements are
untrustworthy and are inadmissible hearsay.
FRE 801, 802. Declarant provides no
information on his tenure with Yelp, he does
not describe any of the records he reviewed
which would possibly indicate the reason a
review was removed, he provides no
information on how the information was
obtained, how he would be qualified to
provide such information about why a
particular review was removed, whether it is
part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Renaissance
Furniture Restoration. FRE 602, 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

¶ 26

I have reviewed Yelp’s records
pertaining to Cats and Dogs
Animal Hospital of Long Beach,
California. As of July 21, 2011,
Cats and Dogs Animal Hospital

Declarant’s assertion about the results of his
review of Cats and Dogs’ reviews, including
which reviews were purportedly filtered or
removed by the User Operations team lacks
foundation because declarant provides no
foundation or factual basis to support his

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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2

Cite

Material Objected To:
had 49 active, unfiltered reviews
(with a 4 star average rating), 24
reviews that were filtered by
Yelp’s automated review filter,
five reviews or review updates
that Yelp’s User Operations team
removed for violations of Yelp’s
Terms of Service, and 4 reviews
which were removed by the
users themselves.

Grounds for Objection:
assertions and lacks personal knowledge.
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed, how the information was obtained,
how he would be qualified to provide such
information about the filter and how
particular reviews were removed, whether it
is part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Cats and Dogs.
FRE 602, 801, 802. The information is
particularly unreliable because declarant
states that whether a review is filtered or not
is moving target because “[t]he filter is
running continuously across all reviews
on Yelp and operates based on up to
date information” which means that
previously filtered reviews “may reappear
on a business’s main profile page.”
MacBean Decl., ¶8. Therefore,
declarant’s information is irrelevant
because it could only be accurate as to
the point in time it was examined– July
21, 2011 – and could not address the
relevant conduct and timeframes alleged
in the TAC. FRE 401, 402.
Declarant claims to have “reviewed Yelp’s
administrative records” but no such records
are provided. Thus, declarant’s attempt to
speculate about the content or to recount the
contents of those writings violates the Best
Evidence Rule. FRE 1002.

¶ 27

Of the five Cats and Dogs Animal
Hospital reviews or review
updates removed for violations of
Yelp’s Terms of Service (three of
which were 1-star reviews), three
(one 5-star review, one 3-star
review and one 1-star review)
were removed on Feburary 26,
2010, March 4, 2010, and March

Declarant’s assertions that Cats and Dogs
reviews or review updates were removed
because the reviews were “violations of
Yelp’s Terms of Service” in that “they did
not reflect ‘firsthand consumer experience’”
or they also violated “Content Guidelines”
for private information or the review “did not
reflect any new consumer experience” lack
foundation because declarant provides no
foundation or factual basis to support his
assertions and lacks personal knowledge.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:
19, 2010 because they did not
reflect “firsthand consumer
experience.” Exhibit 2 (“Personal
experience: We want to hear
about your firsthand consumer
experience, not what you heard
from your co-worker or significant
other.”). The fourth review (a 1star review) was removed on
May 13, 2009 because it
revealed the license plate of a
veterinarian at Cats and Dogs
Animal Hospital, and therefore
violated Yelp’s Terms of Service
and Content Guidelines, which
provide “[d]on’t publicize other
people’s private information” and
prohibit users from disclosing
others’ private information in
reviews. Exhibit 2. Finally, a 1star review update was removed
on January 13, 2010 because it
did not reflect any new consumer
experience. Exhibit 2 (“Review
updates: Review updates should
reflect a new experience or
interaction with the business.
Don't tell the same old story
you've already told.”).

Grounds for Objection:
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed which would possibly indicate the
reason a review was removed, he provides no
information on how the information was
obtained, how he would be qualified to
provide such information about why a
particular review was removed, whether it is
part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Cats and Dogs.
FRE 602, 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

¶ 28

I have reviewed Yelp’s records
pertaining to Marina Dental,
formerly Marina Dental Care, of
San Francisco, California. As of
July 21, 2011, Marina Dental had
16 active, unfiltered reviews (with
a 3.5 star average rating), 86
reviews that were filtered by
Yelp’s automated review filter,
nine reviews or review updates
that Yelp’s User Operations team
removed for violations of Yelp’s
Terms of Service, three reviews
that Yelp’s User Operations team
27

Declarant’s assertion about the results of his
review of Marina Dental’s reviews, including
which reviews were purportedly filtered,
removed by users or removed by the User
Operations team lacks foundation because
declarant provides no foundation or factual
basis to support his assertions and lacks
personal knowledge. FRE 602. For similar
reasons, the statements are untrustworthy and
are inadmissible hearsay. FRE 801, 802.
Declarant provides no information on his
tenure with Yelp, he does not describe any of
the records he reviewed, how the information
was obtained, how he would be qualified to
provide such information about the filter and
how particular reviews were removed,

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

Material Objected To:
removed (along with all other
reviews of the users) when the
users accounts were closed at
their request, and two reviews
which were removed by the
users themselves.

Grounds for Objection:
whether it is part of his regular job, whether
he is authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Marina Dental.
FRE 602, 801, 802. The information is
particularly unreliable because declarant
states that whether a review is filtered or not
is moving target because “[t]he filter is
running continuously across all reviews
on Yelp and operates based on up to
date information” which means that
previously filtered reviews “may reappear
on a business’s main profile page.”
MacBean Decl., ¶8. Therefore,
declarant’s information is irrelevant
because it could only be accurate as to
the point in time it was examined– July
21, 2011 – and could not address the
relevant conduct and timeframes alleged
in the TAC. FRE 401, 402.
Declarant claims to have “reviewed Yelp’s
administrative records” but no such records
are provided. Thus, declarant’s attempt to
speculate about the content or to recount the
contents of those writings violates the Best
Evidence Rule. FRE 1002.

¶ 29

Of the nine Marina Dental
reviews removed for violations of
Yelp’s Terms of Service, eight
were removed on November 30,
2010 (along with all other reviews
by the users) because the users’
accounts were closed by Yelp for
creating multiple accounts in
violation of Yelp’s Terms of
Service and Content Guidelines,
which state that “[y]ou may not . .
. create multiple Personal
Accounts.” Exhibit 1 at 4.D.1.
The ninth review, a one star
review, was removed on
December 23, 2010 because it
was a review update which
violated Yelp’s Terms of Service

Declarant’s assertions that Marina Dental’s
reviews or review updates were removed “for
violations of Yelp’s Terms of Service”
because “the users’ accounts were closed for
. . . violat[ing] Yelp’s Terms of Service and
Content Guidelines” or that a review update
“violated Yelp’s Terms of Service and
Content Guidelines” because it did not reflect
“a new experience or interaction” lack
foundation because declarant provides no
foundation or factual basis to support his
assertions and lacks personal knowledge.
FRE 602. For similar reasons, the statements
are untrustworthy and are inadmissible
hearsay. FRE 801, 802. Declarant provides
no information on his tenure with Yelp, he
does not describe any of the records he
reviewed which would possibly indicate the
reason a review was removed, he provides no
information on how the information was
obtained, how he would be qualified to

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP

Declaration of Ian Macbean

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Cite

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Material Objected To:
and Content Guidelines, which
state “[r]eview updates should
reflect a new experience or
interaction with the business.
Don’t tell the same old story
you’ve already told.” Exhibit 2.

Grounds for Objection:
provide such information about why a
particular review was removed, whether it is
part of his regular job, whether he is
authorized or qualified to provide this
information on Yelp’s behalf and whether
this information would be accurate or
applicable at the times relevant to the conduct
alleged in the TAC as to Marina Dental.
FRE 602, 801, 802.
Declarant claims to base his statements on his
review of Yelp’s administrative records, none
of which are provided. Therefore,
declarant’s attempt to speculate about the
content or to recount the contents of writings
violates the Best Evidence Rule. FRE 1002.

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IV.

CONCLUSION

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For the foregoing reasons, Plaintiffs respectfully request that their evidentiary objections
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be sustained, the evidence be stricken from the record and not be considered.
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DATED: September 2, 2011

ONGARO BURTT & LOUDERBACK LLP
By: /s/ David R. Ongaro
David R. Ongaro
Attorneys for Plaintiffs
BORIS Y. LEVITT et al.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS ISO OPP’N TO MOTION TO DISMISS THIRD AMENDED
CLASS ACTION COMPLAINT AND TO DISMISS OR STRIKE CLASS ALLEGATIONS
Case No. CV 10-01321 MHP