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]
Thomas Urmy (pro hac vice application to be filed)
SHAPIRO HABER & URMY LLP
53 State Street 13th Floor
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
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,
Plaintiffs,

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v.

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YELP!, INC.,

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Defendant.

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Case No. 3:11-cv-01503-EMC
DECLARATION OF ROSA VIGILGALLENBERG 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

GALLENBERG DECL. ISO PRELIMINARY
APPROVAL

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I, Rosa Vigil-Gallenberg, hereby declare as follows:
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I am a member in good standing of the State Bar of California, founder of

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Gallenberg PC, and co-counsel for Plaintiffs. I make this declaration of personal knowledge and

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

I obtained a Juris Doctorate and a Civil Litigation Certificate from U.C. Hastings

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College of the Law in 2007. Following graduation from law school, I was an associate at

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Koletsky, Mancini, Feldman & Morrow working in their complex litigation department in

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Oakland California. Thereafter, I was an associate at a class action law firm (Scott Cole &

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Associates) in Oakland California, exclusively representing employees in class action wage and

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hour cases. Since starting my own law practice in April 2009, I have represented employees in

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individual, representative class action lawsuits, including wage and hour class actions.

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4.

I have worked in several class actions on behalf of Plaintiffs including but not

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limited to the following: Tierno v. Rite-Aid, Inc. (overtime class action; N.D.Cal. 3:2005CV-

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02520), Fulton v. 24 Hour Fitness (overtime class action; San Diego County Superior Court,

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Case No.GIC873193), Flores v. Bally Total Fitness Corporation (overtime class action; Alameda

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County Superior Court Case No. RG-08414512), Runnings v. Dollar Tree Stores, Inc. (overtime

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class action; N.D. Cal. 3:2005CV-04012), Salguero v. EMPNC, Inc. (overtime class action;

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Alameda County Superior Court Case No. RG10542), Kendrick v. Concorde Career Colleges,

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Inc. (consumer class action; Los Angeles County Superior Court Case No. BC457097), Trelles v.

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Stephens Institute (overtime class action; San Francisco County Superior Court Case No.

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CGC11509952), Wilhelm v. International Career Development Center, Inc., (consumer class

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action, Los Angeles County Superior Court Case No. BC481389), Larkin v. Yelp!, Inc. (overtime

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class action; N.D. Cal. 3:11-CV-01503).

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5.

I am currently a member of the State Bar of California Labor and Employment and

Litigation Sections, and am a member of the Bar Association of Los Angeles Labor and
Case No. 3:11-cv-01503-EMC

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GALLENBERG DECL. ISO PRELIMINARY
APPROVAL

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Employment Section.
This Litigation
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I have been the attorney at my firm primarily responsible for the litigation of this

action since its inception. Our firm and our co-counsel, Rukin Hyland Doria & Tindall LLP and
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 provided an analysis of a representative sampling of data
regarding time worked gathered through a database 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, pending mediation
of the case.
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On September 15, 2011, the parties engaged in a full day mediation session with

Mark Rudy of Rudy, Exelrod, Zieff & Lowe. Although the parties did not reach a settlement at
the mediation, negotiations continued for several months.
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Having explored and analyzed 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.
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I believe this Settlement affords relief to Class Members who likely would never

have filed individual claims for unpaid overtime wages. Based on my conversation with multiple
Class Members, many were unwilling to assist with the case or file an opt-in form to join the
action out of fear. I believe they were also unlikely to pursue litigation, or find representation in
individual lawsuits, because of the releases they signed and Yelp’s distribution of the ADR class
action waiver policy.

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

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GALLENBERG DECL. ISO PRELIMINARY
APPROVAL

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Plaintiffs Larkin, Tijerino, and Deanes will, pursuant to the proposed settlement,

provide Yelp with a full release -- not just a release of their wage and hour claims. Because
Plaintiffs Larkin, Tijerino, and Deanes acknowledged that the settlement provided a substantial
benefit to the class members to whom they owed a fiduciary duty, they agreed to these terms.
In my opinion, the proposed enhancement payments of $5,000 for the named Plaintiffs here are
without a doubt reasonable. In addition, the named Plaintiffs have provided all the assistance that
a named plaintiff typically provides in a class action case, assisting in the investigation,
prosecution, and mediation of the action and accepting the risk of an adverse result.
12.

Simpluris, Inc. is a well-known and established claims administrator. Based on

my experience, the appointment of Simpluris Inc. for the fee it has agreed to charge in this case is
fair, adequate and reasonable.
13.

Plaintiffs’ counsel have incurred litigation costs and spent significant amount of

hours of attorney time to date, 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
true and correct. Executed this 27TH of April 2012, at San Francisco, California.

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/s/ Rosa Vigil-Gallenberg
ROSA VIGIL-GALLENBERG

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

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GALLENBERG DECL. ISO PRELIMINARY
APPROVAL