Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 65

NOTICE by Cats and Dogs Animal Hospital, Inc. re 64 MOTION to Consolidate Cases Plaintiffs' Notice of Opposition to Yelp's Motion to Consolidate Cases and Cross-Motion (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiffs' Opposition to Yelp's Motion to Consolidate and Cross-Motion, # 2 Declaration of Gregory S. Weston in Support of Plaintiffs' Opposition and Cross-Motion, # 3 Declaration of Jack Fitzgerald in Support of Plaintiffs' Opposition and Cross-Motion, # 4 Declaration of Jared H. Beck in Support of Plaintiffs' Opposition and Cross-Motion, # 5 Declaration of Elizabeth Lee Beck in Support of Plaintiffs' Opposition and Cross-Motion, # 6 Proposed Order Denying Yelp's Motion to Consolidate and Granting Plaintiffs' Cross-Motion, # 7 Certificate of Service)(Fitzgerald, John) (Filed on 6/14/2010)

1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 888 Turquoise Street San Diego, CA 92109 3 Telephone: [phone] Facsimile: [phone] [e-mail] 5 JACK FITZGERALD (257370) 6 2811 Sykes Court Santa Clara, CA 95051 7 Telephone: [phone] [e-mail] 9 BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK (233743) 10 ELIZABETH LEE BECK (233742) Courthouse Plaza Building 11 28 West Flagler Street, Suite 555 12 Miami, FL 33130 Telephone: [phone] Facsimile: [phone] [e-mail] 14 [e-mail] 15 16 17 Attorneys for Plaintiffs and the Proposed Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 3:10-cv-02351 MHP Pleading Type: Class Action Action Filed: February 23, 2010 DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION Judge: The Hon. Marilyn Hall Patel Date: July 19, 2010 Time: 2:00 p.m.

18 CATS AND DOGS ANIMAL HOSPITAL, INC.; ASTRO APPLIANCE SERVICE; 19 BLEEDING HEART, LLC; CALIFORNIA FURNISHINGS, INC.; CELIBRÉ, INC.; J.L. 20 FERRI ENTERTAINMENT, INC.; LE PETITE RETREAT DAY SPA, LLC; SAN 21 FRANCISCO BAY BOAT CRUISES, LLC; 22 WAG MY TAIL, INC.; and ZODIAC RESTAURANT GROUP, INC., on behalf of 23 themselves and all others similarly situated, 24 25 26 27 v. YELP! INC., Defendant. Plaintiffs,

Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION

1 I, Gregory S. Weston, declare: 2 1. I am a member of good standing in the State Bars of California and Florida, and

3 the United States District Courts for the Northern, Central, and Southern Districts of California. I 4 make this declaration in support of Plaintiffs' Opposition to Yelp's Motion for Consolidation 5 (Dkt. No. 64) and Cross-Motion for: 6 7 8 9 10 11 12 (a1) Designation of Cats and Dogs as lead action and stay of Levitt action or, in the

alternative, (a2) Consolidation of Cats and Dogs and Levitt actions, deeming the Cats and Dogs First Amended Complaint as the operative complaint; (b) Appointment of The Weston Firm and Beck & Lee Business Trial Lawyers as

interim class counsel; and (c) 2. Submission of fully-briefed Motion to Dismiss for hearing. My firm was appointed the sole Class Counsel by the Hon. Margaret M. Morrow

13 to represent purchasers of approximately 145 condominiums in Adachi et al. v. Carlyle/Galaxy 14 San Pedro L.P. et al., No. 09-793 (C.D. Cal.), which settled in 2009 on a class-wide all-cash 15 basis for approximately $1.35 million. 16 3. I am attorney of record for the indirect purchaser class in In re Korean Airlines

17 Co. Ltd. Antitrust Litigation, MDL No. 1891, a class action pending in the Central District of 18 California. 19 4. My firm is counsel for the proposed class of condominium purchasers in

20 Kenneally v. Bank of Nova Scotia et al., No. 3:09-cv-02039-WQH-JMA (S.D. Cal.) a class 21 action involving fraud in the sale of approximately 250 condominiums in San Diego, and at least 22 nine other consumer class actions brought under California's Unfair Competition Law, False 23 Advertising Law and Consumer Legal Remedies Act.. 24 5. I am a graduate of the Ohio State University and Harvard Law School and have

25 devoted substantially all of my practice to representing plaintiffs in class actions. 26 6. Before founding The Weston Firm, as an attorney at the firm now called Robbins,

27 Geller, Rudman & Dowd ("RGR&D"), I represented plaintiffs in the following class actions: 1 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION

1 2 3 4 5 6 7 8 9 10 11

· · · · · · · · ·

The Apple iPod iTunes Antitrust Litigation (N.D. Cal.) (nationwide consumer class certified and RGR&D appointed class counsel) Bruce v. Crompton Corp. (Los Angeles Co. Sup. Ct.) In re Carbon Black Antitrust Litigation (D. Mass.) In re Digital Music Antitrust Litigation (S.D.N.Y.) (RGR&D appointed interim class counsel) In re Graphics Processing Units Antitrust Litigation (N.D. Cal.) In re International Air Transportation Surcharge Antitrust Litigation (N.D. Cal.) In re Medical Waste Services Antitrust Litigation (D. Utah) (RGR&D appointed interim class counsel) Ross et al. v. Metropolitan Life Insurance Company (W.D. Pa.) Williams v. Interinsurance Exchange of the Automobile Club (San Diego Co. Sup. Ct.) (California consumer class certified, RGR&D appointed class counsel) 7. On January 12, 2010, Dr. Gregory Perrault, the owner of Cats and Dogs Animal

12 Hospital, contacted me and informed me that he felt the sales employees of the website 13 Yelp.com were attempting to extort him into purchasing an advertising package that would 14 require him to spend $3600 a year. 15 8. Dr. Perrault knew of me because he was a member of the class described above in

16 ¶ 2. Together with co-counsel, Beck & Lee Business Trial Lawyers, The Weston Firm spent the 17 next six weeks investigating Dr. Perrault's claims and preparing the first Complaint, which was 18 filed February 23, 2010, and served on Defendant Yelp! Inc. the next day. 19 9. Subsequently, more than 200 other small business owners contacted The Weston

20 firm and Beck & Lee with stories similar to Dr. Perrault's, and our firms continue to receive 21 numerous inquiries each day. Of these small businesses, 60 have retained The Weston Firm and 22 Beck & Lee to pursue claims against Yelp and serve as class representatives alongside Cats and 23 Dogs Animal Hospital, Inc. 24 10. Our firm, along with Beck & Lee, spent substantial further time interviewing

25 these small business owners and preparing the First Amended Class Action Complaint 26 ("Amended Complaint"), which was filed on March 16, 2010. The Amended Complaint added a 27 great amount of detail concerning Yelp's unlawful business practices, included several more 2 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION

1 claims for relief, and named nine additional small businesses as representative plaintiffs. 2 11. Since February when the first Complaint was filed, The Weston Firm and Beck &

3 Lee have, among other things: 4 5 6 7 8 9 10 11 12 13 14 15 16 12.
· · · · · · · · ·

Filed a detailed 39-page Amended Complaint; Conferred with defendant's counsel, including in person in San Francisco on March 18, 2010, on case management issues; Held our action's 26(f) discovery conference on April 8, 2010; Conferred with defendant's counsel on class certification, proposed injunctive relief, and electronic discovery; Served Rule 26 disclosures; Fully briefed Yelp's Motion to Dismiss, which was on calendar for hearing before Judge Fairbank, in the Central District of California, before the action was transferred to this Court (Judge Fairbank declined to consider the motion upon ordering the action transferred); Served and obtained first sets of interrogatories and requests for production, including serving 120 and 510 responses and objections, respectfully; Begun collecting and reviewing documents for production to Yelp; and Scheduled a deposition.

As a result of our efforts in prosecuting the Cats and Dogs lawsuit, Yelp has

17 already made substantial policy changes. Yelp now allows its users and business owners to 18 access "filtered" reviews--reviews that were previously completely hidden. Moreover, Yelp no 19 longer allows businesses to pay a monthly fee in order to keep a favorite review listed at the top 20 of their Yelp pages. 21 13. Yelp announced these changes on March 1, 2010--nearly two weeks before

22 Levitt filed his copycat Complaint (see Exhibit A). 23 14. Attached hereto as Exhibit B is a true and correct copy of the Deposition Notice

24 that Plaintiffs served on Yelp on May 5, 2010. 25 26 27 3 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION [continued]

1

I declare under penalty of perjury under the laws of the state of California and the United

2 States that the foregoing is true and correct. 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 4 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION s/ Gregory S. Weston Gregory S. Weston Executed on June 10, 2010 in San Diego, California.

1 Respectfully Submitted, 2 3 4 5 6 7 8 /s/ Jack Fitzgerald Jack Fitzgerald THE WESTON FIRM GREGORY S. WESTON 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail]

9 JACK FITZGERALD 2811 Sykes Court 10 Santa Clara, CA 95051 Telephone: [phone] [e-mail] 12 BECK & LEE BUSINESS TRIAL LAWYERS 13 JARED H. BECK ELIZABETH LEE BECK 14 Courthouse Plaza Building 28 West Flagler Street, Suite 555 15 Miami, FL 33130 16 Telephone: [phone] Facsimile: [phone] 17 [e-mail] [e-mail] 18 Attorneys for Plaintiffs and the Proposed Classes 19 20 21 22 23 24 25 26 27 5 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION

Exhibit A

Yelp Official Blog: We're Increasing Transparency and Eliminating 'Favorite Review'

« Additional thoughts on last week's lawsuit, or How a Conspiracy Theory is Born | Main | More Updates to Yelp for Android (and a few for iPhone) » MARCH 01, 2010

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We're Increasing Transparency and Eliminating 'Favorite Review'
Posted by Jeremy, Yelp CEO User trust is the foundation on which Yelp is built and the reason 31 million consumers turned to the site last month to find a great local business. Today we're announcing two important product changes to reinforce that trust and make it even more clear that Yelp treats review content equally for all businesses, with no connection between advertising and reviews. Specifically, we're adding the ability to see reviews filtered by our review filter and we're discontinuing the "Favorite Review" feature that's part of our advertising package. Why? Because while Yelp has seen tremendous growth in just a few years, we're still new to a lot of people. Despite our best efforts to educate consumers and the small business community, myths about Yelp have persisted. We've said all along we believe these incorrect notions stem from the combination of the filter and this advertising feature -- and we're practicing what we preach. Lifting the veil on our review filter and doing away with "Favorite Review" will make it even clearer that displayed reviews on Yelp are completely independent of advertising -- or any sort of manipulation. We also hope it will demonstrate the importance of a safeguard such as our filter and the unique challenge we face daily to maintain the integrity of the review content on our site. Now you can take a look at any business listing on Yelp and see for yourself the work the review filter has done behind the scenes. Perhaps helping to protect one business from malicious reviews that might stem from a competitor.

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JUNE 07, 2010

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http://officialblog.yelp.com/2010/03/announcing-steps-to-avoid-confusion-increase-transparency.html[6/14/2010 1:45:31 PM]

Yelp Official Blog: We're Increasing Transparency and Eliminating 'Favorite Review'

March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 Or, conversely, protecting consumers from reviews that look like they could have come from an employee, not a customer. September 2009 More...

Looking for the Community Blog?
See what's going on in other Yelp Communities!

But most importantly, you can see that Yelp's review filter works just the same for advertisers and non-advertisers alike. There is not -- nor ever has been -- a bias. So will Yelp be easier to game now? No, our engineers remain hard at

http://officialblog.yelp.com/2010/03/announcing-steps-to-avoid-confusion-increase-transparency.html[6/14/2010 1:45:31 PM]

Yelp Official Blog: We're Increasing Transparency and Eliminating 'Favorite Review'

work to make sure that Yelp is the most useful and helpful online resource for everyone. Additionally, while the "Favorite Review" feature as part of our ad product was clearly labeled as such, it led some people to the wrong conclusions about whether businesses could control the review content on their page. (They can't.) So, to eliminate the opportunity for that misconception, we've eliminated the feature. These aren't the only changes we've made today. We've also announced that advertisers on Yelp will soon have the ability to add a video to the slide show on their business page -- a suggestion made most recently during Yelp's ongoing series of educational meetings with business owners across the country. Additionally, in an effort to more formally integrate feedback from the business community, we've created a Small Business Advisory Council whose members will provide Yelp management with guidance and perspective regarding the concerns of small business owners.

Most consumers probably won't notice the product changes announced here, but we hope this new ability to "look under the hood" will help everyone understand the lengths we've taken to ensure Yelp is the most trusted resource on the internet for connecting people with great local businesses.
Posted at 10:49 AM | Permalink

http://officialblog.yelp.com/2010/03/announcing-steps-to-avoid-confusion-increase-transparency.html[6/14/2010 1:45:31 PM]

Exhibit B

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4 5 o l 8 9 10 l1 t2
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THE WESTON F'IRM GREGORYS. WESTON(239944) JACK FTTZGERALD (2s7370) 888Turquoise Street San Diego, CA92109 Teiephone(858) 488-1 : 672 (480\247-4553 Facsimile: [e-mail] [e-mail] BECK & LEE BUSINESSTRIAL LAWYERS JAREDH. BECK (233743) ELTZABETH LEE BECK (2337 42) 2 8 WestFlagler Street, Suite555 M i a m i ,FL 33130 Telephon:e(305)789-007 2 Facsimile(786) 664-3334 : [e-mail] elizab eth@b ckandl com e ee. Counsefor Plaintiffsandthe Proposed l Classes UNITED STATESDISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA No C a s e : 2:70-cv-073 4}-VBF-SS Pleading Type:Class Action P L A I N T I F F S ' N O T I C E OF' TAKTNG RULE 30(BX6) DEPOSITION OF DEF'ENDANT Judge: TheHon. ValerieBaker Fairbank
YELP! Defendant.

14 15 16 17

CATS AND DOGS ANIMAL 1 8 H O S P I T A L , INC., et a1., behalfof on themselves and all otherssimilarly 19 situated,

20 21 22
L3 .A

Plaintiffs,

25 26 27 28

C a t s and Dogs Animal Hospital, Inc. et al. v Yelp! Inc., CaseNo. 2:10-cv-7340VBF SS P I - e m r m r s ' NorrcE oF TAKTNc RULE 30(BX6)DEposrrroN DEFENDANT oF

1
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Pursuanto the Federal t Rule of Civil Procedure 30(bX6),Plaintiffswill take beforea notarypublic or officer duly authorized administer to oathsin the State of Califomia,the deposition Defendant of Yelp!, Inc. ("Yelp") by the person(s) with 1. Issues relatedto classcertification, includingall elements underFed. Thenumberandlocationof businesses listedon Yelp.com; Yelp's practices policiesregarding solicitation Sponsors and the of or Yelp's practices and policiesregardingcontacting businesses sell to Yelp's practices and policies regarding contacting businesses The divisionbetween sales content and management Yelp; at Any manipulation removalof contenton Yelp.comin exchange or for

4 mostknowledge regarding: 5

6 R . C i v .P . 2 3 ; 7 8 2. 3.

9 advertiseron its website; s 10 4.

l l advertising subscriptions; I2
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conceming hostingYelp "Sponsored Events"; 6. 7.

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1 6 payment; 17 18 l9 8. 9. 10. The Yelp algorithm reviewfilter; or Yelp'sTerms Service Review of and Guidelines; practices Yelp's processes, and procedures concerning review of the

2 0 user-generatereviews claimed to have violated Yelp's Terms of Service or d 2 l ReviewGuidelines; 22
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il.

The number and location of businesses which contractor have The role of the "Yelp Elite Squad" in promoting or soliciting or The role of Yelp "Scouts" or "Ambassadors," other persons

contracted become to sponsors Yelp; with 12.

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2 5 businesses become to Yelp sponsors; zo 13. to 2 7 compensated Yelp, in promoting or soliciting businesses becomeYelp by 28
VBF SS C a tsandDogsAnimalHospital, Inc. et al. v. Yelp!Inc., Case 2:10-cv-1340 No. NorrcE oFTAKTNG 30(B)(6) RULE DEposrrroN DEFENDANT oF Pr-.Arrrrnrs'

1 sponsors; 2
4 14. A11documents produced any party or non-partyrelevantto class by Yelp's financial information,including revenuefrom the sale of

3 certification issues; and
i5. 5 advertising subscriptions. 6 Plaintiffs will take the depositionof the following, at the date and time

7 indicated below or a comparabledate and time agreedto by the parties: 8 9 Name D a t e& Time
Location

h ; m e 2 l , 2 0 1 0 9:00am at representative(s) 6 5 0 Mission St.,2od Floor 1 0 Corporate andcontinuingfrom dayto o f Yelp!,Inc. S a nFrancisco, 94103 CA dayasnecessary 11 D a t e d May 5,2070 :

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GregoryS. Weston THE WESTON FIRM GREGORYS. WESTON JACKFITZGERALD 888Turquoise Street S a nDiego,CA92l09 Telephone: [phone] F a c s i m i l e : 480247 4553 BECK & LEE BUSINESSTRIAL LAWYERS JAREDH. BECK ELIZABETH LEE BECK Courthouse PlazaBuilding 28 WestFlaglerStreet, Suite555 M i a m i ,FL 33130 Telephone:[phone] F a c s i m i l e : 7 86643334 6 Counsefor Plaintiffsandthe l P r o p o s eClasses d
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ai

25 26 27 28

Ca tsandDogsAnimalHospital, Inc. et al. v. Yelp!Inc., Case 2:10-cv-7340 No. VBF SS Pr-arNrrnrs' NorrcE oFTAKTNG 30(BX6) RULE DEposrrroN DEFENDANT oF