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

Filing 93

Brief re 86 Supplemental MOTION to Appoint Lead Plaintiff and Lead Counsel and Proposed Six-Month Discovery Plan Supplimental Statement by The Weston Firm RE: Appointment of Interim Lead Counsel filed byCalifornia Furnishings, Inc., Cats and Dogs Animal Hospital, Inc., Wag My Tail, Inc.. (Attachments: # 1 Exhibit A, # 2 Proposed Order Consolidating Cases and Appointing Weston Firm and Ongaro Burtt Interim Lead Counsel)(Related document(s) 86 ) (Weston, Gregory) (Filed on 8/16/2010)

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] 8 Attorneys for Plaintiffs Cats and 9 Dogs Animal Hospital, Inc., California Furnishings, Inc., 10 Wag My Tail, Inc., and the Proposed Classes 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 CATS AND DOGS ANIMAL HOSPITAL, INC.; 13 ASTRO APPLIANCE SERVICE; BLEEDING 14 HEART, LLC; CALIFORNIA FURNISHINGS, INC.; CELIBRÉ, INC.; J.L. FERRI 15 ENTERTAINMENT, INC.; LE PETITE RETREAT DAY SPA, LLC; SAN FRANCISCO 16 BAY BOAT CRUISES, LLC; WAG MY TAIL, INC.; and ZODIAC RESTAURANT GROUP, 17 INC., on behalf of themselves and all others 18 similarly situated, 19 20 21 22 Plaintiffs, v. YELP! INC., Defendant. Case No. 10-CV-01321 MHP Judge: Hon. Marilyn Hall Patel

CASE NO. 10-CV-02351 MHP Pleading Type: Class Action Action Filed: February 23, 2010 SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF INTERIM LEAD COUNSEL

23 BORIS Y. LEVITT, on behalf of himself and all others similarly situated, 24 Plaintiff, 25 v. 26 27 28 YELP! INC.; and DOES 1 through 100, inclusive, Defendants.

Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. 3:10-CV-02351 MHP SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF LEAD COUNSEL

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With apologies to the Court and the parties, The Weston Firm regrets having to, but is

2 nevertheless compelled, to advise the Court of an issue substantially bearing on the pending 3 matter of appointment of interim class counsel. In sum, named Plaintiffs represented by The 4 Weston Firm--including Cats and Dogs Animal Hospital, the first Plaintiff to bring a class 5 action action against Yelp--last week terminated their relationship with the Beck & Lee firm of 6 Miami after irreconcilable differences arose between the firms, and today filed notices to the 7 Court of this. (See Dkt. Nos. 90 ­ 92.) The dispute between The Weston Firm and Beck & Lee 8 has culminated in a lawsuit between the firms now pending in the Southern District of California, 9 and arose in part because of the unprofessional behavior of the Beck & Lee attorneys toward co10 and opposing counsel, recently witnessed by Mr. Weston and Mr. Fitzgerald in this and other 11 actions, and to which both Mr. Levitt's and Yelp's counsel have accurately attested.1 12 By contrast, The Weston Firm would have little trouble sharing lead counsel duties with

13 Mr. Levitt's counsel, Ongaro Burtt, a situation the Court at the last hearing seemed inclined 14 toward, particularly because The Weston Firm has one attorney in this District and another in 15 San Diego, an hour's plane ride away. The Weston Firm is also located near the majority of the 16 named Plaintiffs in Southern California, while Beck & Lee's attorneys are in Miami. And, since 17 18 At the July 19 hearing, the Court ordered counsel to meet and confer and produce a discovery 19 plan, but the parties returned without one. Mr. Ongaro then explained: 20 21 22 23 [W]hen we went to sit down, Ms. Beck Lee became agitated, was screaming at me, pointing her finger at me. Literally, her finger was this close (indicating). I asked her to please sit down and stop pointing her finger. It was a scene I have never seen in 19 years of practicing law. . . . Again, they yelled at me, saying I'm in cahoots with them and I shouldn't be on this case. Every single item we went to became very contentious. . . . And Mr. Brown can certainly attest to what happened.
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24 To which Matt Brown, counsel for Yelp, replied: 25 26 [...] I have not had a conference quite like the one I experienced, in my years of practice here either. It was not productive.

27 See Transcript of July 19, 2010 Hearing, pp. 22-24, attached hereto as Exhibit A. 28 1 Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., No. 3:10-CV-02351 MHP SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF LEAD COUNSEL

1 the July 19 hearing, The Weston Firm and Mr. Ongaro have had cordial and productive 2 telephone conversations. 3 As a result of disputes Beck & Lee has had with both Ongaro Burtt and The Weston

4 Firm, the Court's options in choosing interim lead counsel now seem relatively limited: the 5 Court could appoint any one the three firms as sole interim lead counsel, or it could appoint both 6 The Weston Firm and Ongaro Burtt co-lead counsel. 7 To the extent the Court is inclined to appoint one firm interim lead counsel, The Weston

8 Firm respectfully believes it should be so appointed. Cats and Dogs Animal Hospital retained 9 The Weston Firm after its owner, Dr. Gregory Perrault, received a settlement as a class member 10 in an unrelated class action in which The Weston Firm was appointed sole lead counsel and 11 negotiated a $1.35 million all-cash settlement. Cats and Dogs then filed the first putative class 12 action lawsuit against Yelp for its unlawful business practices. Since then, as described in 13 previous filings, The Weston Firm has dedicated a substantial amount of time and resources to 14 prosecuting this action. The Weston Firm has primarily drafted nearly all filings on behalf of 15 Plaintiffs, including the original and amended complaints, and has primarily conducted discovery 16 to date running in both directions (for example, The Weston Firm exclusively interviewed the 17 named plaintiffs in order to draft and serve interrogatory responses on their behalves). 18 There are several other reasons to appoint The Weston Firm interim class counsel

19 (whether alone or together with Ongaro Burtt). Jack Fitzgerald works and resides in Santa Clara 20 in this District, making attendance at hearings and depositions, and any necessary in-person 21 meetings with co- or opposing counsel, efficient and economical. And, to the extent Mr. 22 Weston's presence may also be required, several airlines run frequent and inexpensive one-hour 23 commuter flights from San Diego to the San Francisco and Oakland airports, and such trips do 24 not require an overnight stay.2 25 26 On a normal weekday there are 39 non-stop flights from San Diego to San Francisco and 12 27 non-stop flights from San Diego to Oakland. These flights frequently cost as little as $49 each way before taxes and fees. 28 2 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. 3:10-CV-02351 MHP SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF LEAD COUNSEL
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Both Mr. Fitzgerald and Mr. Weston are familiar with the rules and procedures of this

2 Court. Mr. Fitzgerald formerly was a litigation associate at Mayer Brown's Palo Alto office, and 3 Mr. Weston was associated with the firm now known as Robbins Geller Rudman & Dowd LLP, 4 where he worked on complex, technology-related class actions resolved or pending in this 5 district including the DRAM Antitrust Litigation and iPod iTunes Antitrust Litigation, as well as 6 the Digital Music Antitrust Litigation, which was pending before this Court as a related action to 7 In re: Napster Copyright Litigation before being transferred by the Judicial Panel on 8 Multidistrict Litigation to the Southern District of New York. 9 Moreover, if appointed interim lead counsel, The Weston Firm will follow the guidelines

10 for efficient and economical resolution of this action described in the previous joint submission 11 (Dkt. No. 86), specifically: 12 · The Weston Firm will not seek fees greater than 25% of any settlement or judgment if it

13 is primarily a monetary award, or 1.5 times the lodestar if settlement or judgment is primarily 14 injunctive relief; 15 16 17 · The Weston Firm will not bill any costs for Westlaw or Lexis legal research; · The Weston Firm will not charge for in-house copying; · The Weston Firm will not bill for more than two attorneys when taking depositions, or

18 one attorney when defending depositions; 19 20 · The Weston Firm will not bill for more than two attorneys attending hearings. From the standpoint of quickly filing a consolidated amended complaint, The Weston

21 Firm represents businesses able to assert claims on behalf of both putative classes defined in the 22 amended Cats and Dogs complaint: the Sponsor Class seeking monetary relief and the Non23 Sponsor Class seeking only injunctive relief. Mr. Levitt, however, paid Yelp no money and 24 cannot assert claims for restitution, like those asserted in the amended Cats and Dogs complaint. 25 Finally, if appointed interim lead counsel (whether alone or together with Ongaro Burtt),

26 The Weston Firm will reestablish in this case a level of civility that has been missing, and will 27 work diligently on behalf of the Classes for an optimal, speedy, and cost-efficient resolution. 28 3 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. 3:10-CV-02351 MHP SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF LEAD COUNSEL

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For the foregoing reasons, The Weston Firm respectfully requests that the Court appoint

2 it interim class counsel, whether alone or together with Ongaro Burtt. 3 4 DATED: August 16, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. 3:10-CV-02351 MHP SUPPLEMENTAL STATEMENT BY THE WESTON FIRM RELATING TO APPOINTMENT OF LEAD COUNSEL JACK FITZGERALD 2811 Sykes Court Santa Clara, CA 95051 Telephone: [phone] [e-mail] Counsel for Plaintiffs Cats and Dogs Animal Hospital, Inc., California Furnishings, Inc., Wag My Tail, Inc., and the Proposed Classes Respectfully Submitted, /s/Gregory S. Weston Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail]