Larkin v. Yelp! Inc.

Filing 32

MOTION for Settlement Preliminary Approval filed by Ahmad Deanes, Justin Larkin, Anthony Tijerino. Motion Hearing set for 6/1/2012 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 5/11/2012. Replies due by 5/18/2012. (Attachments: # 1 Declaration Declaration of Peter Rukin, # 2 Declaration Declaration of Rosa Vigil-Gallenberg, # 3 Declaration Declaration of Tom Urmy, # 4 Proposed Order Proposed Order)(Rukin, Peter) (Filed on 4/27/2012)

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Peter Rukin (SBN 178336)
RUKIN HYLAND DORIA & TINDALL LLP
100 Pine Street, Suite 2150
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Rosa Vigil-Gallenberg (SBN 251872)
GALLENBERG PC
9701 Wilshire Blvd. Suite 1000
Beverly Hills, CA 90071
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Todd Heyman (pro hac vice application to be filed)
SHAPIRO HABER & URMY LLP
53 State Street 13th Floor
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorneys for Representative Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JUSTIN LARKIN, ANTHONY TIJERINO, and
AHMAD DEANES, on behalf of themselves and
all others similarly situated,

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Plaintiffs,
v.
YELP!, INC.,
Defendant.

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Case No. 3:11-cv-01503-EMC
DECLARATION OF PETER RUKIN
IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY
APPROVAL OF CLASS AND
COLLECTIVE ACTION
SETTLEMENT
Date: June 1, 2012
Time: 1:30 p.m.
Courtroom: 5-17th Floor
Judge: Hon. Edward M. Chen

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Case No. 3:11-cv-01503-EMC

RUKIN DECL. ISO PRELIMINARY APPROVAL

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I, Peter Rukin, hereby declare that:

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1.

I am a member in good standing of the State Bar of California, a partner at Rukin

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Hyland Doria & Tindall LLP, and co-counsel for Plaintiffs. I make this declaration of personal

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knowledge and if called as a witness I could and would testify competently to the facts stated

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herein.

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2.

This Declaration is submitted in support of Plaintiffs’ Motion for Preliminary

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Approval of Class and Collective Action Settlement.

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Background and Experience

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3.

The following is a brief description of my professional background. I am a 1991

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graduate of New York University School of Law. Following graduation from law school, I

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served as law clerk to U.S. District Court Judge Harry D. Leinenweber in Chicago. Thereafter, I

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practiced law at employment law firms in Chicago (Stowell & Friedman) and New York

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(Vladeck Waldman Elias & Engelhard), representing employees in individual and class action

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cases, and served as an Assistant Corporation Counsel for the City of Chicago Law Department.

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I also served as Of Counsel in the Employment Law Department at Paul, Hastings, Janofsky &

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Walker in San Francisco, where from January 2000 until March 2003, I represented employers in

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a wide array of complex employment matters. Since forming my own firm in April 2003, I have

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represented employees in individual, class action, and collective action lawsuits.

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4.

Since 2003, my firm has been appointed class counsel in the following cases:

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Pryor v. OAS, JAMS Binding Arbitration No. 1100052926 (claimants’ contested motion for class

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certification in wage and hour arbitration); Fernandez v. KM Industries (N.D.Cal. Case No. 4:06-

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cv-07339-CW) (plaintiffs’ contested motion for class certification in ERISA action); Flynn v.

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Angel Studios, Inc. (San Diego Superior Court Case No. GIN 054909) (certification of settlement

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class in wage and hour action); Broome v. Google, Inc. (Santa Clara Superior Court Case No: 1-

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08-CV-112386) (certification of settlement class in wage and hour action); Martinez v. Bank of

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the West (San Francisco Superior Court Case No. CGC-06-454959) (certification of settlement

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class in wage and hour action); Krzesniak v. Cendant Corporation (N.D.Cal. Case No.: 3:05-cv-

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5156) (Plaintiff’s contested motion for class certification in wage and hour action); Torres v. ABC

Case No. 3:11-cv-01503-EMC

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RUKIN DECL. ISO PRELIMINARY APPROVAL

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Security Service (Alameda County Superior Court Case No. RG04158744) (Plaintiffs’ contested
motion for class certification in wage and hour action); Wilson v. Sony Computer Entertainment
America, Inc. (San Mateo County Superior Court Case No. 444815) (certification of settlement
class in wage and hour action); Rodriguez v. PETCO Animal Supplies Stores, Inc. (Santa Clara
County Superior Court Case No. 1-06-CV-0060094) (certification of settlement class in wage and
hour action); Kohler v. Sierra Pacific Industries (El Dorado County Superior Court Case No.
PC20050094) (certification of settlement class in wage and hour action); Qutami v. T-Mobile
(Alameda County Superior Court Case No. RG04186460) (certification of settlement class in
wage and hour action); Goddard v Longs Drug Stores, California, Inc. (Alameda County
Superior Court Case No. RG04141291) (certification of settlement class in wage and hour
action); Gray v. ABC Security Service, Inc. (Alameda County Superior Court Case No.
RG04141422) (certification of settlement class in wage and hour action); Sheppard v. The Davey
Tree Expert Company (San Francisco Superior Court Case No. CGC-03-426108) (certification of
settlement class in wage and hour action); McKenzie v. American Commercial Claims
Administrators, Inc., (San Francisco Superior Court Case No. CGC-04-428807) (certification of
settlement class in wage and hour action); and Newman v. Kimpton Hotel & Restaurant Group,
Inc., (San Francisco Superior Court Case No. CGC04429762) (certification of settlement class in
wage and hour action).
5.

I have written and spoken on employment law and litigation, and have closely

followed legal developments in the area. I am co-author of two chapters in the CEB practice
manual California Wage and Hour Law and Litigation, and have served as Revisions Editor for
the wage and hour chapters of the Matthew Bender treatise California Employment Law. I am
currently an advisor to the State Bar of California Labor and Employment Section Executive
Committee (having served a three year term from 2008-2011), and am a member of the Bar
Association of San Francisco Labor and Employment Section Executive Committee.
This Litigation
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I have been the attorney at my firm primarily responsible for the litigation of this

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action since its inception. Our firm and our co-counsel, Shapiro Haber & Urmy LLP and
Gallenberg PC, spent months investigating this case before filing the action. That pre-filing
investigation included discussions with numerous Account Executives and a review of the
representative Plaintiffs’ documents and records. After filing the case, we began discussions with
Yelp’s counsel regarding the issues in the case, including the possible mediation of the action.
We requested and received a production of relevant documents and data, including documents
reflecting Yelp’s compensation policies regarding Account Executives, employment agreements,
and workweek data. Additionally, Yelp produced an analysis reflecting time worked by a
representative sample of Account Executives, using data gathered from systems used by Account
Executives.
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On May 11, 2011, the parties executed an agreement to toll the FLSA statute of

limitations effective May 11, 2011 for all absence collective action members.
8.

On September 15, 2011, the parties engaged in a full day mediation session with

the Mark Rudy of Rudy, Exelrod, Zieff & Lowe. Although the parties did not reach a settlement
at the mediation, negotiations continued for several months. Those negotiations ultimately
resulted in the Settlement Agreement attached as Exhibit 1 to this declaration.
9.

Having explored and considered the evidence in the case and the parties’

respective arguments regarding liability, I believe that this Settlement is fair, adequate, and
reasonable given the risks of continued litigation and the benefits that the Settlement provides
Class Members. If Plaintiffs were to prevail at class certification and trial, and were to establish
that Class Members worked an average of five hours of overtime per week, Plaintiffs’ counsel’s
valuation, based on workweek and salary information provided by Defendants, is that the total
unpaid overtime owed to Class Members during the class period would be approximately
$3,480,000, with damages to the California Class of approximately $2,850,000 and to the
National Class of approximately $630,000 Based on these calculations and assumptions, the
Maximum Settlement Amount that will be distributed to Class Members (exclusive of fees and
costs, enhancement award and payment of the PAGA penalty) represents twenty five percent of

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RUKIN DECL. ISO PRELIMINARY APPROVAL

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the potential actual damages recovery. The maximum number of workweeks worked by
California Class Members during the liability period is 248. The maximum number of
workweeks worked by a National Class Member is 185.
10. In support of its contention that Class Members worked little or no overtime hours,
Yelp provided Plaintiffs’ Counsel with data, which Yelp contends reflects that Class Members
worked between 12 minutes and 2 hours and 20 minutes overtime per workweek.
11. Based on my conversations with Class Members, I believe this Settlement affords
relief to Class Members who likely would never have filed individual claims for unpaid overtime
wages.
12.

I have litigated many wage and hour class and collective actions and have

enhancement award approval as high as $35,000. In my opinion, the proposed enhancement
payments of $5,000 for the named Plaintiffs are reasonable. The named Plaintiffs have assisted in
the investigation, prosecution, and mediation of the action and accepted the risk of an adverse
result. Each Plaintiff will, pursuant to the proposed settlement, provide Yelp with a full release of
all known and unknown claims that he may have. Because Plaintiffs acknowledged that the
settlement provided a substantial benefit to the class members to whom they owed a fiduciary
duty, they agreed to these terms. Further, each Plaintiff has incurred the risk that he will
experience retaliation for having participated in this litigation.
13.

Simpluris, Inc. is a well-known and established claims administrator. Plaintiffs’

counsel have used Simpluris to administer the claims process in other cases, and based on my
experience the appointment of Simpluris for the fee it has agreed to charge in this case is fair,
adequate and reasonable.
14.

Plaintiffs’ counsel have incurred significant attorney time to date, including to

investigate the case, and expect to incur substantial additional time and expenses in connection
the administration of the settlement and final approval process.

I declare under penalty of perjury, under the laws of the United States, that the foregoing is

Case No. 3:11-cv-01503-EMC

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RUKIN DECL. ISO PRELIMINARY APPROVAL

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true and correct. Executed this 27th of April 2012, at San Francisco, California.

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/s/ Peter Rukin
PETER RUKIN

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Case No. 3:11-cv-01503-EMC

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RUKIN DECL. ISO PRELIMINARY APPROVAL

EXHIBIT 1

EXHIBIT 2

16620979.2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUSTIN LARKIN, ANTHONY
TIJERINO, and AHMAD DEANES, on
behalf of themselves and all others
similarly situated,
Plaintiffs,

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CASE NO. 11-CV-01503 EMC

[THE CALIFORNIA NOTICE]

v.
YELP! INC.,
Defendant.

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16620979.2

NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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NOTICE OF PENDING CLASS ACTION, ASSOCIATED SETTLEMENT AND FINAL
APPROVAL HEARING -- PLEASE READ THIS NOTICE CAREFULLY AS YOUR
LEGAL RIGHTS MAY BE AFFECTED
IF YOU WERE EMPLOYED BY YELP! INC. (“YELP”) AS AN ACCOUNT EXECUTIVE
(INCLUDING POSITIONS INCORPORATING THE TITLES ACCOUNT EXECUTIVE,
ACCOUNT EXECUTIVE TRAINEE, ASSOCIATE ACCOUNT EXECUTIVE TRAINEE,
ASSOCIATE ACCOUNT EXECUTIVE, JUNIOR ACCOUNT EXECUTIVE, SALES
ASSOCIATE, SALES REPRESENTATIVE, AND SENIOR ACCOUNT EXECUTIVE) IN THE
STATE OF CALIFORNIA BETWEEN MARCH 29, 2007 AND DECEMBER 31, 2011 (THE
“CALIFORNIA CLASS”), THIS CLASS ACTION SETTLEMENT MAY AFFECT YOUR
RIGHTS AND YOU MAY BE ENTITLED TO PARTICIPATE IN A SETTLEMENT.

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PLEASE READ THIS NOTICE CAREFULLY. PLEASE DO NOT CONTACT THE COURT
OR YELP REGARDING THIS MATTER.

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THIS IS A COURT-APPROVED NOTICE. THIS IS NOT A SOLICITATION FROM A
LAWYER. YOU HAVE NOT BEEN SUED.

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THE FOLLOWING RECITATION DOES NOT CONSTITUTE THE FINDINGS OF THE
COURT. IT SHOULD NOT BE UNDERSTOOD TO BE AN EXPRESSION OF THE
COURT’S VIEWS ON THE MERITS OF ANY CLAIM OR DEFENSE RAISED BY THE
PARTIES.

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I.

INTRODUCTION AND SUMMARY
This is to notify you of a lawsuit against Yelp! Inc. (“Yelp”) and the proposed class action

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settlement of that lawsuit. The lawsuit, entitled Larkin v. Yelp! Inc., Case No. 11-CV-01503

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EMC, United States District Court for the Northern District of California, concerns the

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compensation of Account Executives (including all of the positions listed above). You have

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received this Notice because Yelp’s records suggest that you may be one of the current or former

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Account Executives employed by Yelp in California during the pertinent period. This Notice

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provides instructions on the options available to you – in particular, it will explain your options:

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You Can Submit A
Claim Form and Receive
a Settlement Payment

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To claim your settlement payment, you must
complete and submit the enclosed claim form by
[BY NOTICE RESPONSE DATE]. Your settlement
share will be at least $[MERGE SETTLEMENT
AMOUNT] and possibly more if other class
members do not file claim forms and participate.

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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You Can Object to the
terms of the Settlement

As discussed below, if you wish to object to any
part of the Settlement, you may explain why you do
not like the Settlement, provided you do so by
[NOTICE RESPONSE DATE].

You Can Request
Exclusion From (or “opt
out of”) the Settlement

As discussed below, if you do not wish to be
included in the Settlement and do not wish to
receive a Settlement payment, you may prepare,
sign, date, and timely mail to the Settlement
Administrator a request to exclude yourself from the
settlement of this Class Action. If you wish to do
so, you must send this correspondence by [NOTICE
RESPONSE DATE].

You Can Do Nothing
and Be Bound By the
Terms of the Settlement

If you do nothing, you will still be included in the
California class and give up your claims against
yelp under California wage and hour laws but not
receive a settlement payment.

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Please understand that this is not a notice of a lawsuit against you. You have not been

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sued.

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II.

WHAT IS THIS LITIGATION ABOUT?

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Plaintiffs Justin Larkin, Anthony Tijerino and Ahmad Deanes (collectively “Plaintiffs”)

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filed this class action against Yelp. The lawsuit alleges, among other things, that Yelp violated

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certain state and federal employment laws, including the federal Fair Labor Standards Act

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(“FLSA”), the California Labor Code, the California Industrial Welfare Commission Wage

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Orders, and the California Business and Professions Code, in connection with the compensation

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of Account Executives, (including, without limitation, positions with the titles Account

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Executive, Account Executive Trainee, Associate Account Executive Trainee, Associate

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Account Executive, Junior Account Executive, Sales Associate, Sales Representative, and Senior

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Account Executive).

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The lawsuit alleges that Yelp misclassified Account Executives as “exempt” employees,

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i.e., employees who under state and federal laws are exempt from overtime wage requirements,

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meal and rest period requirements, and other California and federal employment law

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requirements. The lawsuit also alleges that Yelp failed to comply with various other California

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NOTICE TO CLASS ACTION MEMBERS –
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employment laws and regulations relating to recordkeeping, wage deductions, and the timing of

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wage payments. The lawsuit is collectively brought on behalf of all current and former Account

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Executives employed by Yelp in California at any point between March 29, 2007 and December

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31, 2011, and all people in this group are referred to as the “California Class.”

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Yelp has reviewed the claims in this lawsuit in detail, has denied any wrongdoing or

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liability in this matter. Yelp is committed to compensating its employees in a lawful manner,

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and although Yelp believes that it has ample legal and factual grounds for defending and

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defeating the claims at hand, it has chosen to work with Plaintiffs and their counsel to resolve

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this matter in order to avoid the further expense and burden of litigation pursuant to the

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procedure set forth in this Notice.

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Yelp will not retaliate against any class members for exercising or not exercising the

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rights described in this Notice, the aforementioned lawsuit, and/or settlement, and does not

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encourage or discourage any specific type of response. Whether and how you respond to this

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notice will have no affect on your employment at Yelp.

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III.

DESCRIPTION OF THE SETTLEMENT

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A.

Summary of Settlement

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On behalf of both a national and a California class, Plaintiffs Larkin and Tijerino have

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reached a voluntary settlement agreement with Yelp. The total maximum amount of the

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consolidated settlement is $1,250,000, with approximately two-thirds of that amount allocated to

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the resolution of the claims of the California Settlement Class. Yelp guarantees that it will pay a

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minimum of fifty percent of the amount set aside for payments to the California Settlement

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Class. This means that if less than half of the money available for such payments is claimed, i.e.,

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because other class members do not file claims, and you do file a claim, your settlement payment

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will almost certainly increase.

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Through this settlement, neither Yelp nor its employees have admitted any liability or

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wrongdoing. A full copy of the settlement agreement, which is entitled the Stipulation Re:

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Settlement of Class and Collective Actions, as well as other public documents filed with regard

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to this matter can be inspected in the Office of the Court Clerk (see below). This settlement has

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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been preliminary approved by the Court.
California Class Members who do not opt out of the settlement will remain subject

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to the judgment and be precluded from bringing similar claims against Yelp or any of its

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affiliates in the future. Specifically, all California Class Members who do not opt out of the

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settlement, whether they submit claim forms or not, will be precluded from bringing any

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future claims concerning claims for unpaid regular or premium overtime or other

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premium wages and/or remedies relating to meal/rest period, recordkeeping, and timing of

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wage payment requirements.

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Only those individuals who remain Members of the California Class will be eligible

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to participate in this settlement and receive payment under this agreement, and only those

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individuals who submit qualifying claim forms will receive payment. If you do not

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complete and timely submit the Claim Form, you will still be included in the California

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Class, but not receive a settlement payment. Those California Class Members who opt out

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of the settlement will neither be eligible to receive any payment pursuant to this settlement,

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nor be bound by the judgment and associated waiver or release of related claims.

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B.

What Will I get Under the Settlement If I file a Claim?

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Under the settlement, each California Class Member who submits a Claim Form will

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receive a minimum amount per each qualifying week worked between March 29, 2007 and

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December 31, 2011. Currently, your estimated settlement payment is at least $[MERGE]

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because we estimate that you worked [MERGE] qualifying weeks during the period between

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March 29, 2007 and December 31, 2011 in California, i.e., you worked that many weeks in one

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of the covered positions during this time frame. Again, if less than half of the money available

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for California settlement payments is claimed, however, your settlement sum will increase to an

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amount higher than that listed above.

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C.

Is My Settlement Payment Taxed?

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A portion of any payment made to you under the settlement will be subject to required

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wage withholdings and deductions, and as a result, the amount you receive will be less than the

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gross amount listed above. Yelp will report thirty-three percent (33%) of this payment to

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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relevant government entities as a wage payment, and will report the remaining sixty-seven

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percent (67%) as a non-wage payment. Yelp reserves the right to make any required

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withholdings or deductions as required by applicable law, and California Class Members should

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be advised that Yelp will report any payments made pursuant to this agreement to the Internal

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Revenue Service and other relevant government entities (if any) as required by law.

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Each California Class Member will be solely responsible for reporting any payment received

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pursuant to this settlement and for paying any taxes associated with the same. Neither the Class

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Representatives, Class Counsel, nor Yelp makes any representations concerning the tax

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consequences of this settlement or your participation in it. If you have any questions about the

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tax consequences of the payments you may receive under the settlement, you should consult your

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tax advisor.

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D.

What if I think I worked More Workweeks?

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If you believe the number of qualifying work weeks listed above in Section III.B is

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inaccurate, please contact the Settlement Administrator or Class Counsel immediately and

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provide them with any supporting documentation in support of your view. Remember, however,

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that the only weeks that qualify are weeks in which you worked in one of the covered positions

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during the pertinent time frame. So, for example, work in other positions does not count and

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work performed in 2012 and beyond does not count.
How Much Will Class Counsel Be Paid in Attorneys’ Fees?

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E.

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Class Counsel will request that the Court award them attorneys’ fees up to 25% of the

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maximum settlement amount that Yelp could pay, or $312,500. This request will be subject to

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review and approval by the Court. Yelp has agreed not to oppose this request. Class Counsel

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will also seek reimbursement of up to $10,000 in out-of-pocket expenses incurred in this case,

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which will also be subject the Court’s approval. Any amounts approved by the Court will

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constitute full payment for all legal fees of Class Counsel in the action, including any work they

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do in the future in connection with the Settlement. In the event any amount of the requested fees

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or costs are not approved by the Court, the unawarded amount will revert to the maximum

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settlement payout to class members.

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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F.

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The settlement additionally provides that deductions from the Maximum Settlement

What Deductions Will Be Made From the Settlement Amount?

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Amount will be made for (1) reimbursement of settlement administration expenses not to exceed

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$25,000; (2) enhancement payments of $5,000 to each of the three Plaintiffs for a total of

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$15,000; (3) payment of $7,500 to the California Labor and Workforce Development Agency.

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These estimated payments are all subject to the approval of the Court.

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IV.

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THE PEOPLE RECEIVING THIS NOTICE
The Class Representatives have brought this action as a class and collective action. In

class and collective actions, one or more persons bring claims on behalf of themselves and others

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who purportedly are in similar situations or have similar claims. In other words, the Class

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Representatives are seeking to represent those who are purportedly similarly situated and thus

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may also have similar or related claims. In order to ensure that all California Class Members are

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given an adequate opportunity to protect their rights, this Notice is being mailed to the last known

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addresses of all California Class Members, and address verification measures have been taken.

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V.

THE RIGHTS AND OPTIONS OF CALIFORNIA CLASS MEMBERS
You have received this Notice because Yelp’s records suggest that you are currently a

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member of the conditionally certified California Class. Specifically, these records suggest that

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you were employed by Yelp as an Account Executive in California during the pertinent period.

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Current members of the California Class have several options:

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(i)

You may obtain a Settlement payment by completing and submitting the enclosed Claim
Form as detailed below no later than _____________, 2012 (see below for more details).

(ii)

You may do nothing, but you will remain a member of the California Class and release
your claims against Yelp under California’s wage and hour laws without receiving a
Settlement payment (see below for more details).

(iii)

You may opt-out of the Settlement by sending a written request to opt-out of the
Settlement to Class Counsel as described below no later than ___________, 2012 (see
below for more details).

(iv)

You may object to the Settlement by submitting your written objections to Class Counsel
as described below no later than _______, 2012. If you object to the Settlement, you will

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

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still remain in the class but would only receive a Settlement payment if you also complete
and submit the enclosed Claim Form (see below for more details).

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A.

How Do I Make Corrections to Name or Address?

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If you wish to change the name or address listed on the envelope in which this Notice

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was sent, please complete Form A attached hereto and submit it before the deadline specified on

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the form.

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B.

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Current California Class Members, including you, may remain Members of the California

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How Do I submit a Claim Form? How Do I Participate in the Settlement?

Settlement Class and seek to participate in the settlement by submitting a claim for payment.

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YOU MUST SUBMIT A CLAIM FORM TO BE PAID. To remain a Member of the

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California Settlement Class, you need not take any action; California Class Members who do not

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submit opt out forms will remain in the California Settlement Class, will be subject to the

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judgment rendered in connection with this action and settlement, and will be deemed to have

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forever released and discharged Yelp and all of its past and present affiliates, directors, officers,

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and employees from any and all claims relating to this action and settlement.

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California Class Members who choose this option and remain in the California

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Settlement Class will be represented by the Class Representatives and Class Counsel. The law

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firms acting as Class Counsel in this matter are the following:

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PETER RUKIN
RUKIN HYLAND DORIA & TINDALL LLP
100 Pine Street, Suite 2150
San Francisco, CA 94111
ROSA VIGIL-GALLENBERG
GALLENBERG PC
9701 Wilshire Blvd. Suite 1000
Beverly Hills, CA 90212
IAN MCLOUGHLIN
TOM URMY
SHAPIRO HABER & URMY LLP
53 State Street, 13th Floor
Boston, MA 02109
16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Alternatively, California Class Members who do not opt out of the California Settlement

2

Class may participate in this action at their own expense and may retain their own attorneys.

3

California Class Members who choose this option will be responsible for any attorney fees or

4

costs incurred as a result of this election.

5

If you choose to remain a member of the California Settlement Class and properly and

6

timely submit a claim form, you will receive payment pursuant to the settlement agreement. In

7

other words, only California Settlement Class Members that properly and timely submit claim

8

forms can receive payment.

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California Class Members who wish to submit a claim should review and then fully

10

complete, execute, and mail the form entitled “California Settlement Claim Certification Form”

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attached to this Notice as Form B by no later than [Notice Response Deadline]. The submission

12

deadline is final, and claim forms that are not postmarked on or before that date will not be

13

honored.

14

California Class Members who do not opt out of the California Settlement Class may also

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object to the terms or nature of the settlement at or prior to the hearing on the settlement using

16

the procedure set forth below.

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C. How Do I Opt Out of The Settlement?

18

Current California Class Members may elect to “opt out” of the California Settlement

19

Class and thus exclude themselves from this action and the associated settlement and judgment.

20

California Class Members who opt out of this action will not receive any money from this

21

settlement and would remain free, subject to the statute of limitations and applicable statutory,

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common law or other restrictions, to bring otherwise viable claims against Yelp for unpaid

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wages and remedies relating to record-keeping and timing of wage payment requirements.

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California Class Members who wish to exercise this option shall submit a written request as

25

more fully described below.

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California Class Members who wish to opt out of this settlement must mail a timely

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written request to the Claims Administrator at [CLAIMS ADMINISTRATOR ADDRESS].

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The opt out request must state the Class Member’s full name, address, date of birth, and

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

the dates of employment by Yelp. If a written request to opt out is not received by the Claims

2

Administrator from a California Class Member postmarked on or before [Notice Response

3

Deadline] then that California Class Member will be deemed to have forever waived his or her

4

right to opt out of the California Settlement.

5

The submission deadline is final, and opt out requests that are not postmarked on or

6

before that date will not be honored. California Class Members who opt out of this lawsuit and

7

the associated settlement forfeit their right to submit a claim for payment under the specific

8

settlement described herein.

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10

D. How Do I Object to The Settlement?
If you do not like any terms of the Settlement, you can submit a written objection. Your

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objection must be in writing and include your full name, address, telephone number, signature

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and a statement that you object to the Settlement in Larkin v. Yelp! Inc., C.A. No. 11-01503

13

EMC and the reason(s) for your objection. The objection should be mailed to Peter Rukin at

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Rukin Hyland Doria & Tindall LLP, 100 Pine Street, Suite 2150, San Francisco, CA 94111, and

15

postmarked no later than [Notice Response Deadline].

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Even if you object, you also may complete and submit the enclosed Claim Form. If you

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object but do not submit the Claim Form and the Court overrules your objection, then you would

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not receive a Settlement payment. If you opt-out of the Settlement, you may not submit an

19

objection.

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An objection to Class Counsel’s application for attorneys’ fees and costs may be filed,

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and must be postmarked, no later than ten days following the filing of Class Counsel’s motion

22

for an award of attorneys’ fees and costs.

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VI. RELEASE OF CLAIMS

24

All Members of the California Class who do not opt out of the settlement shall be subject

25

to the judgment connected with this action and associated settlement. This means they shall be

26

deemed to have forever released and discharged Yelp and all its past and present affiliates,

27

directors, officers, employees, partners, members, principals, agents, insurers, co-insurers, re-

28

insurers, shareholders, attorneys, and personal or legal Representatives from any demands,

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

rights, liabilities, and causes of action of every nature and description whatsoever, including

2

without limitation statutory, constitutional, contractual or common law claims, whether known or

3

unknown, whether or not concealed or hidden, whether arising under federal or state law, against

4

Yelp, its affiliates, employees, agents, or any of them, including without limitation claims for

5

wages, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest,

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attorney fees, litigation costs, restitution, or equitable relief, that accrued through December 31,

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2011 as a result of the California Class Member’s employment as an Account Executive in

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California for Yelp, based on the following categories of claims or allegations: (a) any and all

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claims for (i) failure to pay wages for work performed in excess of eight hours in a day or forty

10

hours in a week, regular; and/or (ii) failure to pay regular, overtime or other premium wages,

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failure to pay minimum wages, failure to provide sufficient meal and/or rest periods and/or to

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pay premiums in lieu thereof, failure to comply with payroll or wage record-keeping or

13

itemization requirements, and failure to timely pay wages due at termination or otherwise; (b)

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any and all claims alleging statutory violations arising from the same categories of allegations set

15

forth above in (a), including without limitation claims under the Fair Labor Standards Act

16

(“FLSA”), the Portal to Portal Act, California Labor Code sections 218, 226, 226.7 and 1194 and

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California Business & Professions Code sections 17200 et seq.; (c) any and all claims for

18

penalties or liquidated damages or other available remedies arising from the categories of

19

allegations set forth above in (a) and (b), including without limitation claims under the FLSA,

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Portal to Portal Act, California Labor Code sections 203, 226, 226.7, 512, 1194, and 2698 et

21

seq., and applicable California Industrial Welfare Commission Wage Orders; and (d) any and all

22

claims for interest, costs, or attorney fees arising from the categories of allegations set forth

23

above in (a) and (b), including without limitation claims under the California Labor Code

24

sections 218.5, 1194, and 2699(g)(1), California Code of Civil Procedure section 1021.5, and

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Federal Rule of Civil Procedure 23(h); and (e) to the extent not covered by the above, any and all

26

claims pled in the Litigation. (The Released Claims include claims under the California Private

27

Attorney Generals Act of 2004, codified at California Labor Code sections 2698 et seq., for

28

which the California Class was granted additional consideration, which is already part of, and not

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

in addition to, the Maximum Settlement Amount, in the amount of $7,500, which shall be paid to

2

the California Labor and Workforce Development Agency pursuant to this settlement.)

3

If you submit a claim or do nothing, , i.e., do not opt out of the settlement, you shall be

4

deemed to have, and by operation of the judgment shall have, expressly waived, as it pertains to

5

Released Claims, the rights and benefits of California Civil Code § 1542, which provides:

6
7
8

A general release does not extend to claims which the creditor does not know or suspect to exist
in his or her favor at the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.

9
VII.

HEARING ON SETTLEMENT

10
Following a hearing on or about [INSERT DATE], pursuant to the procedures for the
11
approval of class actions and Rule 23 of the Federal Rules of Civil Procedure and the procedures
12
for collective actions under the FLSA, the Court granted preliminary approval for the settlement
13
of this matter as a class and collective action and scheduled a hearing on final approval for
14
[INSERT DATE]. This hearing will take place before the Honorable Edward M. Chen in
15
Courtroom 5 of the United States District Courthouse for the Northern District of California, 450
16
Golden Gate Avenue, 17th Floor, San Francisco, California 94102. Members of the California
17
Class can express their views on the settlement at or before this hearing but you are not required
18
to do so, nor are you required to attend this hearing to exercise any of your rights. California
19
Class Members can exercise either their right to obtain payment or opt out by following the
20
instructions contained in this Notice; again, no appearance at the hearing is required.
21
At this hearing, Class Counsel will present any timely written objections to the Court.
22
Late written objections will not be valid.
23
Again, attendance at this hearing is completely optional; attendance at the hearing is
24
not required to participate in the settlement or to opt out of the lawsuit.
25
VIII. EXAMINATION OF PAPERS FILED IN THIS ACTION
26
This Notice does not fully describe the action. Members of the public, including but not
27
limited to those whose rights may be affected by this action, may inspect the files (including the
28

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

full settlement agreement) through the Court Clerk at the following address: Office of the Clerk,

2

United States District Court for the Northern District of California, 450 Golden Gate Avenue,

3

17th Floor, San Francisco, California 94102.

4
5

PLEASE DO NOT CALL OR WRITE THE COURT OR YELP WITH QUESTIONS REGARDING

6

THIS ACTION.

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

FORM A

2
3

FOR

4
5

NOTICE TO CLASS MEMBERS RE: PENDENCY OF A CLASS ACTION AND NOTICE

6

OF HEARING ON PROPOSED SETTLEMENT

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8
9
10
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Change of Name and/or Address Information

2
3

Pursuant to Section VI to the Notice to Class Members, I wish to change my name
and/or mailing address information to the following:

4

Name:

5

Street and Apt. No., if any:

6

City, State and Zip Code:

7

For purposes of verification only, I began working at Yelp in

8

____________________, _______.

9

(Month)

10

(Year)

I understand that all future correspondence in this action, including but not

11

necessarily limited to important notices or payments to which I am entitled (if any), will be sent

12

to the address listed above and not to the address previously used. I hereby request and consent to

13

the use of the address listed above for these purposes.

14

DATED: ___________ ___, 2012

Submitted By:

15

_________________________________

16

Print Name

17

_________________________________

18

Signature

19

_________________________________

20

Date

21

PLEASE RETURN THIS FORM VIA UNITED STATES MAIL TO:

22

Simpluris, Inc.

23

Re: Larkin Matter

24

ADDRESS

25

THIS FORM MUST BE POSTMARKED BY [NOTICE RESPONSE DEADLINE],

26

TO CHANGE YOUR ADDRESS

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28

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

FORM B

2
3

FOR

4
5

NOTICE TO CLASS MEMBERS RE: PENDENCY OF A CLASS ACTION AND NOTICE

6

OF HEARING ON PROPOSED SETTLEMENT

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8
9
10
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12
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14
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

California Settlement Claim Certification Form

2

I hereby submit this claim for payment under the settlement:

3

I confirm that I was employed by Yelp in California at some point between March

4

29, 2007 and December 31, 2011 as an Account Executive (which includes, without limitation,

5

positions with the titles Account Executive, Account Executive Trainee, Associate Account

6

Executive Trainee, Associate Account Executive, Junior Account Executive, Sales Associate,

7

Sales Representative, and Senior Account Executive).

8
9

I understand that by submitting this claim certification form, I am making a claim
for a settlement payment to be paid by Yelp in connection with contested litigation in which the

10

plaintiffs are alleging among other things that they and others, including me, earned and are

11

entitled to such compensation because we allegedly worked overtime but did not receive premium

12

pay for it. By submitting this claim form, I also acknowledge that I am consenting to opt in and

13

opting into this action and settlement pursuant to the federal Fair Labor Standards Act and 29

14

U.S.C. § 216(b).

15

not electing to opt out of this settlement, I will be subject to the judgment, waive the protections

16

of California Civil Code section 15421 as set forth in the Notice, and be precluded from pursuing

17

all of the claims, known or unknown, described in the Notice. Submission of this claim form will

18

have no effect on my employment. Yelp has agreed, and pertinent law requires, that Yelp not

19

take any adverse action against you because you file (or do not file) a claim.

By submitting this claim form, I further acknowledge that I understand that by

20
21

Name of Class Member (print):

22

Address:

23

City, State and Zip Code:

24

____

25

Date: ____________________________

PLEASE CHECK THIS BOX IF THIS IS A NEW ADDRESS

26
27
28

1

California Civil Code section 1542 provides that “[a] general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor.”

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Signature: _________________________

2
3

For verification purposes, please state the month and year you began working at
Yelp:

4

________
Month

_________
Year

5

PLEASE RETURN THIS FORM VIA UNITED STATES MAIL TO:

6

Simpluris, Inc.

7

Re: Larkin Matter

8

ADDRESS

9
10
11

THIS FORM MUST BE POSTMARKED BY [NOTICE RESPONSE DEADLINE] TO BE
VALID AND EFFECTIVE.

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13
14
15
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

EXHIBIT 3

16620979.2

1
2
3
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8

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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11
12

JUSTIN LARKIN, ANTHONY
TIJERINO, and AHMAD DEANES, on
behalf of themselves and all others
similarly situated,
Plaintiffs,

13
14
15

v.
YELP! INC.,
Defendant.

CASE NO. 11-CV-01503 EMC

[PROPOSED] NOTICE TO COLLECTIVE
ACTION CLASS MEMBERS RE:
PENDENCY OF A COLLECTIVE ACTION
AND NOTICE OF HEARING ON
PROPOSED SETTLEMENT
[THE NATIONAL NOTICE]

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16620979.2

NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1
2
3
4
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8

NOTICE OF PENDING COLLECTIVE ACTION, ASSOCIATED SETTLEMENT AND
FINAL APPROVAL HEARING -- PLEASE READ THIS NOTICE CAREFULLY AS
YOUR LEGAL RIGHTS MAY BE AFFECTED
IF YOU WERE EMPLOYED BY YELP! INC. (“YELP”) AS AN ACCOUNT EXECUTIVE
(INCLUDING POSITIONS INCORPORATING THE TITLES ACCOUNT EXECUTIVE,
ACCOUNT EXECUTIVE TRAINEE, ASSOCIATE ACCOUNT EXECUTIVE TRAINEE,
ASSOCIATE ACCOUNT EXECUTIVE, JUNIOR ACCOUNT EXECUTIVE, SALES
ASSOCIATE, SALES REPRESENTATIVE, AND SENIOR ACCOUNT EXECUTIVE) IN THE
UNITED STATES OUTSIDE THE STATE OF CALIFORNIA BETWEEN May 11, 2008 AND
DECEMBER 31, 2011 (THE “NATIONAL CLASS”), THIS COLLECTIVE ACTION
SETTLEMENT MAY AFFECT YOUR RIGHTS AND YOU MAY BE ENTITLED TO
PARTICIPATE IN A SETTLEMENT.
PLEASE READ THIS NOTICE CAREFULLY. PLEASE DO NOT CONTACT THE COURT
OR YELP REGARDING THIS MATTER.

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10
11
12

THIS IS A COURT-APPROVED NOTICE. THIS IS NOT A SOLICITATION FROM A
LAWYER. YOU HAVE NOT BEEN SUED.
THE FOLLOWING RECITATION DOES NOT CONSTITUTE THE FINDINGS OF THE
COURT. IT SHOULD NOT BE UNDERSTOOD TO BE AN EXPRESSION OF THE
COURT’S VIEWS ON THE MERITS OF ANY CLAIM OR DEFENSE RAISED BY THE
PARTIES.

13
I.

14
15

INTRODUCTION AND SUMMARY

This is to notify you of a lawsuit against Yelp! Inc. (“Yelp”) and the proposed class action

16

settlement of that lawsuit. The lawsuit, entitled Larkin v. Yelp! Inc., Case No. 11-CV-01503

17

EMC, United States District Court for the Northern District of California, concerns the

18

compensation of Account Executives (including all of the positions listed above). You have

19

received this Notice because Yelp’s records suggest that you may be one of the current or former

20

Account Executives employed by Yelp in the United States outside of the state of California

21

during the pertinent period. This Notice provides instructions on the options available to you – in

22

particular, it will explain your options:

23
24
25

You Can Submit An Opt
In and Claim Form and
Receive a Settlement
Payment

To claim your settlement payment, you must
complete and submit the enclosed claim form by
[BY NOTICE RESPONSE DATE]. Your settlement
share will be at least $[MERGE SETTLEMENT
AMOUNT].

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27
28

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

You Can Object to the
terms of the Settlement

As discussed below, if you wish to object to any
part of the Settlement, you may explain why you do
not like the Settlement, provided you do so by
[NOTICE RESPONSE DATE].

You Can Do Nothing
and You Will Not
Release Your Claims

If you do nothing, you will not receive any of the
benefits of the settlement nor be bound by the
judgment or release of claims.

2
3
4
5
6
7

Please understand that this is not a notice of a lawsuit against you. You have not been

8

sued.

9

II.

WHAT IS THIS LITIGATION ABOUT?

10

Plaintiffs Justin Larkin, Anthony Tijerino and Ahmad Deanes (collectively “Plaintiffs”)

11

filed this class and collective action against Yelp. The lawsuit alleges, among other things, that

12

Yelp violated certain state and federal employment laws, including the federal Fair Labor

13

Standards Act (“FLSA”), the California Labor Code, the California Industrial Welfare

14

Commission Wage Orders, and the California Business and Professions Code, in connection with

15

the compensation of Account Executives, (including, without limitation, positions with the titles

16

Account Executive, Account Executive Trainee, Associate Account Executive Trainee,

17

Associate Account Executive, Junior Account Executive, Sales Associate, Sales Representative,

18

and Senior Account Executive).

19

The lawsuit alleges that Yelp misclassified Account Executives as “exempt” employees,

20

i.e., employees who under state and federal laws are exempt from overtime wage requirements,

21

meal and rest period requirements, and other California and federal employment law

22

requirements. The lawsuit also alleges that Yelp failed to comply with various other California

23

employment laws and regulations relating to recordkeeping, wage deductions, and the timing of

24

wage payments. The lawsuit is collectively brought on behalf of all current and former Account

25

Executives employed by Yelp in the United States of America (including without limitation the

26

District of Columbia) in locations other than California at any point between May 11, 2008 and

27

December 31, 2011, and all people in this group are referred to as the “National Class.”

28

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Yelp has reviewed the claims in this lawsuit in detail, has denied any wrongdoing or

2

liability in this matter. Yelp is committed to compensating its employees lawfully. Although

3

Yelp believes that it has ample legal and factual grounds for defending and defeating the claims

4

at hand, it has chosen to work with Plaintiffs and their counsel to resolve this matter in order to

5

avoid the further expense and burden of litigation pursuant to the procedure set forth in this

6

Notice.

7

Yelp will not retaliate against any class members for exercising or not exercising the

8

rights described in this Notice, the aforementioned lawsuit, and/or settlement, and does not

9

encourage or discourage any specific type of response. Whether and how you respond to this

10

notice will have no effect on your employment at Yelp.

11

III.

12
13

DESCRIPTION OF THE SETTLEMENT
A. Summary of Settlement
On behalf of both a National and a California class, Plaintiffs Larkin and Tijerino have

14

reached a voluntary settlement agreement with Yelp. The total maximum amount of the

15

consolidated settlement is $1,250,000, with approximately one-third of that amount allocated to

16

the resolution of the claims of the National Settlement Class.

17

Through this settlement, neither Yelp nor its employees have admitted any liability or

18

wrongdoing. A full copy of the settlement agreement, which is entitled the Stipulation Re:

19

Settlement of Class and Collective Actions, as well as other public documents filed with regard

20

to this matter can be inspected in the Office of the Court Clerk (see below). This settlement has

21

been preliminary approved by the Court.

22

Only those individuals who opt-in by submitting a qualifying National Opt In and

23

Claim Form will remain Members of the National Class and will be eligible to participate in

24

this settlement and receive payment under this agreement, and only those individuals who

25

submit qualifying claim forms will receive payment. If you do not complete and timely

26

submit the National Opt In and Claim Form, you will not be included in the National Class.

27

If you do not opt in to the settlement, you will neither be eligible to receive any payment

28

pursuant to this settlement, nor be bound by the judgment and associated waiver or release

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1
2
3

of related claims.
B. What Will I get Under the Settlement If I file a Claim?
Under the settlement, each National Class Member who submits an Opt In and Claim

4

Form will receive a minimum amount per each qualifying week worked between May 11, 2008

5

and December 31, 2011. Currently, your estimated settlement payment is at least $[MERGE]

6

because we estimate that you worked [MERGE] qualifying weeks during the period between

7

May 11, 2008 and December 31, 2011 in a state other than California, i.e., you worked that many

8

weeks in one of the covered positions during this time frame.

9
10

C. Is My Settlement Payment Taxed?
A portion of any payment made to you under the settlement will be subject to required

11

wage withholdings and deductions, and as a result, the amount you receive will be less than the

12

gross amount listed above. Yelp will report thirty-three percent (33%) of this payment to

13

relevant government entities as a wage payment, and will report the remaining sixty-seven

14

percent (67%) as a non-wage payment. Yelp reserves the right to make any required

15

withholdings or deductions as required by applicable law, and National Class Members should

16

be advised that Yelp will report any payments made pursuant to this agreement to the Internal

17

Revenue Service and other relevant government entities (if any) as required by law.

18

Each National Class Member will be solely responsible for reporting any payment received

19

pursuant to this settlement and for paying any taxes associated with the same. Neither the Class

20

Representatives, Class Counsel, nor Yelp makes any representations concerning the tax

21

consequences of this settlement or your participation in it. If you have any questions about the

22

tax consequences of the payments you may receive under the settlement, you should consult your

23

tax advisor.

24

D. What if I think I worked More Workweeks?

25

If you believe the number of qualifying work weeks listed above in Section III.B is

26

inaccurate, please contact the Settlement Administrator or Class Counsel immediately and

27

provide them with any supporting documentation in support of your view. Remember, however,

28

that the only weeks that qualify are weeks in which you worked in one of the covered positions

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

during the pertinent time frame. So, for example, work in other positions does not count and

2

work performed in 2012 and beyond does not count.
E. How Much Will Class Counsel Be Paid in Attorneys’ Fees?

3

Class Counsel will request that the Court award them attorneys’ fees up to 25% of the

4
5

maximum settlement amount that Yelp could pay, or $312,500. This request will be subject to

6

review and approval by the Court. Yelp has agreed not to oppose this request. Class Counsel

7

will also seek reimbursement of up to $10,000 in out-of-pocket expenses incurred in this case,

8

which will also be subject the Court’s approval. Any amounts approved by the Court will

9

constitute full payment for all legal fees of Class Counsel in the action, including any work they

10

do in the future in connection with the Settlement. In the event any amount of the requested fees

11

or costs are not approved by the Court, the unawarded amount will revert to the maximum

12

settlement payout to class members.

13

F. What Deductions Will Be Made From the Settlement Amount?

14

The settlement additionally provides that deductions from the Maximum Settlement

15

Amount will be made for (1) reimbursement of settlement administration expenses not to exceed

16

$25,000; (2) enhancement payments of $5,000 to each of the three Plaintiffs for a total of

17

$15,000; (3) payment of $7,500 to the California Labor and Workforce Development Agency.

18

These estimated payments are all subject to the approval of the Court.

19

IV.

20

THE PEOPLE RECEIVING THIS NOTICE
The Class Representatives have brought this action as a class and collective action. In

21

class and collective actions, one or more persons bring claims on behalf of themselves and others

22

who purportedly are in similar situations or have similar claims. In other words, the Class

23

Representatives are seeking to represent those who are purportedly similarly situated and thus

24

may also have similar or related claims. In order to ensure that all National Class Members are

25

given an adequate opportunity to protect their rights, this Notice is being mailed to the last known

26

addresses of all National Class Members, and address verification measures have been taken.

27

V.

28

THE RIGHTS AND OPTIONS OF NATIONAL CLASS MEMBERS
You have received this Notice because Yelp’s records suggest that you are currently a

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

member of the conditionally certified National Class. Specifically, these records suggest that you

2

were employed by Yelp as an Account Executive in the United States in a state outside of

3

California during the pertinent period. Current members of the National Class have several

4

options:


5
6



7
8



9
10
11

You may opt-in to participate in the settlement. To obtain a Settlement payment,
you must complete and submit the enclosed Opt In and Claim Form as detailed
below no later than _____________, 2012 (see below for more details).
You may do nothing, which means you are not opting in to the settlement. By
doing nothing, you will not become a part of the National Settlement Class and
thereby exclude yourself from this action. You will not release your claims
against Yelp or be bound by the judgment.
You may object to the Settlement by submitting your written objections to Class
Counsel as described below no later than _______, 2012. If you object to the
Settlement, and the Court overrules your objection, you will only participate in the
Settlement if you have also opted-in to the settlement by completing and
submitting the enclosed Claim Form (see below for more details).

A. How Do I Make Corrections to Name or Address?
12
If you wish to change the name or address listed on the envelope in which this
13
Notice was sent, please complete Form A attached hereto and submit it before the deadline
14
specified on the form.
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B. How Do I submit a Claim Form? How Do I Participate in the Settlement?
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National Class Members, including you, may participate as Members of the
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National Settlement Class in the settlement by submitting a claim for payment. YOU MUST
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SUBMIT AN OPT IN AND CLAIM FORM TO BE PAID. National Class Members who
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choose this option and become members of the National Settlement Class will be represented by
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the Class Representatives and Class Counsel. The law firms acting as Class Counsel in this
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matter are the following:
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PETER RUKIN
RUKIN HYLAND DORIA & TINDALL LLP
100 Pine Street, Suite 2150
San Francisco, CA 94111

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ROSA VIGIL-GALLENBERG
GALLENBERG PC
9701 Wilshire Blvd. Suite 1000
Beverly Hills, CA 90212
Tel: [phone]

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

3

IAN MCLOUGHLIN
TOM URMY
SHAPIRO HABER & URMY LLP
53 State Street, 13th Floor
Boston, MA 02109

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Alternatively, National Class Members who opt in to the National Settlement

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Class may participate in this action at their own expense and may retain their own attorneys.

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National Class Members who choose this option will be responsible for any attorney fees or costs

7

incurred as a result of this election.

2

If you choose to become a member of the National Settlement Class and properly

8
9

and timely submitting a claim form, you will receive payment pursuant to the settlement

10

agreement. In other words, only National Settlement Class Members that properly and timely

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submit claim forms can receive payment.
National Class Members who wish to submit a claim should review and then fully

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13

complete, execute, and mail the form entitled “National Opt In and Settlement Claim Certification

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Form” attached to this Notice as Form B by no later than [Notice Response Deadline]. The

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submission deadline is final, and claim forms that are not postmarked on or before that date will

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not be honored.
National Class Members who opt in to the National Settlement Class may also

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object to the terms or nature of the settlement at or prior to the hearing on the settlement using the

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procedure set forth below.

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C. How Do I Not Participate in The Settlement?
National Class Members may elect to not participate in the National Settlement

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22

Class and thus exclude themselves from this action and the associated settlement and judgment.

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National Class Members who do not opt in to this action will not receive any money from

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this settlement and would remain free, subject to the statute of limitations and applicable

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statutory, common law or other restrictions, to bring otherwise viable claims against Yelp for

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unpaid wages and remedies relating to record-keeping and timing of wage payment requirements.

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D. How Do I Object to The Settlement?
If you do not like any terms of the Settlement, you can submit a written objection.

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Your objection must be in writing and include your full name, address, telephone number,

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signature and a statement that you object to the Settlement in Larkin v. Yelp! Inc., C.A. No. 11-

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01503 EMC and the reason(s) for your objection. The objection should be mailed to Peter Rukin

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at Rukin Hyland Doria & Tindall LLP, 100 Pine Street, Suite 2150, San Francisco, CA 94111,

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and postmarked no later than [Notice Response Deadline].

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Even if you object, you also may complete and submit the enclosed Claim Form.

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If you object but do not submit the Claim Form and the Court overrules your objection, then you

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would not receive a Settlement payment.
An objection to Class Counsel’s application for attorneys’ fees and costs may be

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10

filed, and must be postmarked, no later than ten days following the filing of Class Counsel’s

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motion for an award of attorneys’ fees and costs.

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VI. RELEASE OF CLAIMS

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All Members of the National Class who opt in to the settlement shall be subject to

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the judgment connected with this action and associated settlement. This means they shall be

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deemed to have forever released and discharged Yelp and all its past and present affiliates,

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directors, officers, employees, partners, members, principals, agents, insurers, co-insurers, re-

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insurers, shareholders, attorneys, and personal or legal Representatives from any demands, rights,

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liabilities, and causes of action of every nature and description whatsoever, including without

19

limitation statutory, constitutional, contractual or common law claims, whether known or

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unknown, whether or not concealed or hidden, whether arising under federal or state law, against

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Yelp, its affiliates, employees, agents, or any of them, including without limitation claims for

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wages, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorney

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fees, litigation costs, restitution, or equitable relief, that accrued through December 31, 2011 as a

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result of the National Class Member’s employment as an Account Executive in any state other

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than California for Yelp, based on the following categories of claims or allegations: (a) any and

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all claims for (i) failure to pay wages for work performed in excess of eight hours in a day or

27

forty hours in a week, regular; and/or (ii) failure to pay regular or overtime wages, failure to pay

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minimum wages, failure to comply with payroll or wage record-keeping or itemization

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

requirements; (b) any and all claims alleging statutory violations arising from the same categories

2

of allegations set forth above in (a), including without limitation claims under the Fair Labor

3

Standards Act (“FLSA”), the Portal to Portal Act, and pertinent state laws; (c) any and all claims

4

for penalties or liquidated damages or other available remedies arising from the categories of

5

allegations set forth above in (a) and (b; and (d) any and all claims for interest, costs, or attorney

6

fees arising from the categories of allegations set forth above in (a) and (b) and (e) to the extent

7

not covered by the above, any and all claims pled in the Litigation.

8

VII.

HEARING ON SETTLEMENT

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Following a hearing on or about [INSERT DATE], pursuant to the procedures for

10

the approval of class actions and Rule 23 of the Federal Rules of Civil Procedure and the

11

procedures for collective actions under the FLSA, the Court granted preliminary approval for the

12

settlement of this matter as a class and collective action and scheduled a hearing on final approval

13

for [INSERT DATE]. This hearing will take place before the Honorable Edward M. Chen in

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Courtroom 5 of the United States District Courthouse for the Northern District of California, 450

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Golden Gate Avenue, 17th Floor, San Francisco, California 94102. Members of the National

16

Class can express their views on the settlement at or before this hearing but you are not required

17

to do so, nor are you required to attend this hearing to exercise any of your rights. National Class

18

Members can exercise either their right to obtain payment or choose not to opt in; again, no

19

appearance at the hearing is required.

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21

At this hearing, Class Counsel will present any timely written objections to the
Court. Late written objections will not be valid.

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Again, attendance at this hearing is completely optional; attendance at the

23

hearing is not required to participate in the settlement or to opt out of the lawsuit.

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VIII. EXAMINATION OF PAPERS FILED IN THIS ACTION

25

This Notice does not fully describe the action. Members of the public, including

26

but not limited to those whose rights may be affected by this action, may inspect the files

27

(including the full settlement agreement) through the Court Clerk at the following address:

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Office of the Clerk, United States District Court for the Northern District of California, 450

16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Golden Gate Avenue, 17th Floor, San Francisco, California 94102.

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3
4
5

PLEASE DO NOT CALL OR WRITE THE COURT OR YELP WITH QUESTIONS
REGARDING THIS ACTION.

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7
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

FORM A

2
3

FOR

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5

NOTICE TO COLLECTIVE ACTION CLASS MEMBERS RE: PENDENCY OF A

6

COLLECTIVE ACTION AND NOTICE

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OF HEARING ON PROPOSED SETTLEMENT

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9
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Change of Name and/or Address Information

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3

Pursuant to Section VI of the Notice to Collective Action Class Members, I wish
to change my name and/or mailing address information to the following:

4

Name:

5

Street and Apt. No., if any:

6

City, State and Zip Code:

7

For purposes of verification only, I began working at Yelp in

8

____________________, _______.

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(Month)

10

(Year)

I understand that all future correspondence in this action, including but not

11

necessarily limited to important notices or payments to which I am entitled (if any), will be sent

12

to the address listed above and not to the address previously used. I hereby request and consent to

13

the use of the address listed above for these purposes.

14

DATED: ___________ ___, 200__

Submitted By:

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_________________________________

16

Print Name

17

_________________________________

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Signature

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_________________________________

20

Date

21

PLEASE RETURN THIS FORM VIA UNITED STATES MAIL TO:

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Simpluris, Inc.

23

Re: Larkin Matter

24

ADDRESS

25

THIS FORM MUST BE POSTMARKED BY [NOTICE RESPONSE DEADLINE],

26

TO CHANGE YOUR ADDRESS

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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

FORM B

2
3

FOR

4
5

NOTICE TO COLLECTIVE ACTION CLASS MEMBERS RE: PENDENCY OF A

6

COLLECTIVE ACTION AND NOTICE

7

OF HEARING ON PROPOSED SETTLEMENT

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9
10
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14
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16620979.2

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

National Opt In and Settlement Claim Certification Form

2

Pursuant to Section VII of the Notice, I hereby wish to opt in to this action

3

pursuant to the federal Fair Labor Standards Act, and I hereby answer the following questions

4

(designed to determine my eligibility for a settlement payment):

5

I confirm that I was employed by Yelp in the United States of America at a

6

location outside of California at some point between May 11, 2008 and December 31, 2011 as an

7

Account Executive (which includes positions with the titles Account Executive, Account

8

Executive Trainee, Associate Account Executive Trainee, Associate Account Executive, Junior

9

Account Executive, Sales Associate, Sales Representative, and Senior Account Executive).

10

I understand that by submitting this claim certification form, I am making a claim

11

for a settlement payment to be paid by Yelp in connection with contested litigation in which the

12

plaintiffs are alleging among other things that they and others, including me, earned and are

13

entitled to such compensation because we allegedly worked overtime but did not receive premium

14

pay for it. By submitting this form, I acknowledge that I am consenting to opt in and opting into

15

this action and settlement pursuant to the federal Fair Labor Standards Act and 29 U.S.C. §

16

216(b) and that I understand that by doing so, I will be subject to the judgment and be precluded

17

from pursuing all of the claims, known or unknown, described in the Notice. Checking the first

18

box above will preclude you from monetary recovery here.

19

Submission of this claim form will have no effect on my employment. Yelp has

20

agreed, and pertinent law requires, that Yelp not take any adverse action against you because you

21

file (or do not file) a claim.

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23

I hereby declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and accurate to the best of my knowledge.

24

Name of Class Member (print):

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Address:

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City, State and Zip Code:

27

____

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Date: ____________________________

16620979.2

PLEASE CHECK THIS BOX IF THIS IS A NEW ADDRESS

- 14 -

NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC

1

Signature: _________________________

2
3
4

For verification purposes, please state the month and year you began working at
Yelp: ________
_________
Month
Year
PLEASE RETURN THIS FORM VIA UNITED STATES MAIL TO:

5
Simpluris, Inc.
6
Re: Larkin Matter
7
ADDRESS
8
9
10

THIS FORM MUST BE POSTMARKED BY [NOTICE RESPONSE DEADLINE] TO BE
VALID AND EFFECTIVE.

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NOTICE TO CLASS ACTION MEMBERS –
Case No. 11-CV-01503 EMC