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 JACK FITZGERALD 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 21 PETITE RETREAT DAY SPA, LLC; SAN 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 YELP! INC., 27 Defendant. v. Plaintiffs,

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

1 I, Jack Fitzgerald, declare: 2 1. I am a member in good standing of the State Bars of California and New York

3 and the United States District Courts for the Northern, Central and Southern Districts of 4 California, the Southern and Eastern Districts of New York, and of the United States Court of 5 Appeals for the Ninth Circuit. I make this declaration in support of Plaintiffs' Opposition to 6 Yelp's Motion for Consolidation (Dkt. No. 64) and Cross-Motion for: 7 8 9 10 11 12 13 (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. Before joining The Weston Firm, I was associated with the law firms of Baker &

14 Hostetler, LLP, in New York, New York, and Mayer Brown LLP in Palo Alto, California. While 15 at Mayer Brown, I defended the class action, In Re: Openwave Securities Systems, Inc. Securities 16 Litigation, No. 07-cv-1309 (S.D.N.Y.). While at both Baker & Hostetler and Mayer Brown, my 17 practice was always focused on large-scale, complex litigation including, for example, 18 representing plaintiffs asserting antitrust and false advertising claims against various telephone 19 calling card manufacturers. My representation of plaintiffs in class action lawsuits includes 20 Kenneally v. Bank of Nova Scotia et al., Case 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 3. I am a graduate of Cornell University and New York University School of Law,

25 where I was editor of the New York University Law Review. 26 4. Following our filing on February 23, 2010 of the first Complaint against Yelp, my

27 firm and Beck & Lee Business Trial Lawyers have been contacted by more than 200 other small 1 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF JACK FITZGERALD IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION

1 business owners with stories similar to Dr. Perrault's, of Plaintiff Cats and Dogs Animal 2 Hospital, Inc. The firms continue to receive numerous inquiries each day. Of these small 3 businesses, 60 have retained The Weston Firm and Beck & Lee to pursue claims against Yelp 4 and serve as class representatives alongside Cats and Dogs Animal Hospital, Inc. 5 5. Our firm and Beck & Lee spent substantial time interviewing these small business

6 owners, and preparing the First Amended Class Action Complaint ("Amended Complaint"), 7 which was filed on March 16. The Amended Complaint added a great amount of detail 8 concerning Yelp's unlawful business practices, included several more claims for relief, and 9 named nine additional small business representative plaintiffs. 10 6. Since February, when The Weston Firm and Beck & Lee filed the first Complaint,

11 counsel have, among other things: 12 13 14 15 16 17 18 19 20 21 22 23 7.
· · · · · · · · ·

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.

On Friday, June 4, 2010, I met and conferred with counsel for Yelp, Matthew

24 Brown, concerning the substance of the instant Motion. Mr. Brown indicated he did not agree to 25 this request, instead indicating his client's position that Plaintiffs should file, along with Mr. 26 Levitt, an amended consolidated complaint, giving Yelp an additional 30 days time to respond, 27 and mooting the fully-briefed Motion to Dismiss the Cats and Dogs Amended Complaint. 2 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF JACK FITZGERALD IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION

1

8.

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

2 already made substantial policy changes. Yelp now allows its users and business owners to 3 access "filtered" reviews--reviews that were previously completely hidden. Moreover, Yelp no 4 longer allows businesses to pay a monthly fee in order to keep a favorite review listed at the top 5 of their Yelp pages. 6 9. Yelp announced these changes on March 1, 2010--nearly two weeks before

7 Levitt filed his copycat Complaint. 8 I declare under penalty of perjury under the laws of the State of California and the United

9 States that the foregoing is true and correct. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF JACK FITZGERALD IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION s/ Jack Fitzgerald Jack Fitzgerald Executed on June 14, 2010 in Santa Clara, California.

1 Respectfully Submitted, 2 3 4 /s/ Jack Fitzgerald Jack Fitzgerald

THE WESTON FIRM 5 GREGORY S. WESTON 888 Turquoise Street 6 San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] 8 [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 4 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP DECLARATION OF JACK FITZGERALD IN SUPPORT OF PLAINTIFFS' OPPOSITION AND CROSS-MOTION