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]

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Attorneys for Plaintiffs

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MALCOLM A. HEINICKE (SBN 194174)
[e-mail]
CAROLYN V. ZABRYCKI (SBN 263541)
[e-mail]
MUNGER, TOLLES & OLSON LLP
560 Mission Street
Twenty-Seventh Floor
San Francisco, CA 94105-2907
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant
YELP! INC.

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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,

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Plaintiffs,
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CASE NO. 11-CV-01503 EMC
[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL AND
SETTLEMENT HEARING

v.
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YELP! INC.,
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Defendant.

Date: June 1, 2012
Time: 1:30 p.m.
Courtroom: 5
Judge: Hon. Edward M. Chen

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16620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

The joint motion of the Settling Parties for an order preliminarily

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approving a class action and collective action settlement and setting a settlement

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hearing, came on for hearing on or about June 1, 2012. The Court has considered

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the Stipulation Re: Settlement of Class and Collective Actions (and its exhibits), the

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submissions of counsel, and all other papers filed in this action. The matter having

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been submitted and good cause appearing therefore, the Court finds as follows:
1.

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All defined terms contained herein shall have the same

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meanings as set forth in the Stipulation Re: Settlement of Class and Collective

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Actions executed by the Settling Parties and filed with this Court (the

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“Stipulation”);

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2.

The Class Representatives and Yelp, through their counsel of

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record in the Litigation and per the terms of the Stipulation, have reached an

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agreement to resolve the Litigation and settle all California Released Claims and

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National Released Claims;

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3.

The Court conditionally finds that, for the purposes of approving

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this settlement only and for no other purpose and with no other effect, the proposed

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California Class meets the requirements for certification under Rule 23 of the

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Federal Rules of Civil Procedure: (a) the proposed California Class is ascertainable

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and so numerous that joinder of all members of the class is impracticable; (b) there

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are questions of law or fact common to the proposed California Class; (c) the

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claims of the Class Representatives Justin Larkin and Anthony Tijerino (the

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“California Class Representatives”) are typical of the claims of the members of the

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proposed California Class; (d) the California Class Representatives will fairly and

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adequately protect the interests of the proposed California Class Members; (e) a

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class action is superior to other available methods for an efficient adjudication of

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this controversy, especially given the settlement context here; and (f) the counsel of

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record for the California Class Representatives are qualified to serve as counsel for

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the Class Representatives in their own capacities as well as their representative
-116620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

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capacities and for the California Class;
4.

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The Court conditionally finds that, for the purpose of approving

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this settlement only and for no other purpose and with no other effect, in the context

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of this Settlement, the proposed California Class and the proposed National Class

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meet the requirements for certification as a collective action class under 29 U.S.C. §

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216(b) because a sufficient initial showing has been made that the California Class

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Members and the National Class Members are similarly situated;
5.

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The moving parties have presented to the Court for review a

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Stipulation Re: Settlement of Class and Collective Actions. The Stipulation is

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within the range of reasonableness and meets the requirements for preliminary

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approval;
6.

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The moving parties have also presented to the Court for review a

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plan to provide a California Notice to the Members of the proposed California

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Class which sets out the terms of the settlement and the California Class Members’

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options including, inter alia, their options (i) to opt out of the California Settlement

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Class, (ii) to remain in the California Settlement Class and elect to be represented

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by counsel of their choosing, (iii) to object to the terms of the settlement, and/or

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(iv) to seek to become California Participating Claimants by submitting California

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Settlement Claim Certification Forms. The California Notice will be mailed to all

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California Class Members at their Last Known Addresses. The plan regarding

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California Notices proposed by the Settling Parties is the best practical under the

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circumstances and satisfies pertinent due process requirements and the requirements

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of Federal Rule of Civil Procedure 23; and
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The moving parties have also presented to the Court for review a

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plan to provide a National Notice to the Members of the proposed National Class

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which sets out the terms of the settlement and the National Class Members’ options

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including, inter alia, their options (i) to refrain from acting and thereby exclude

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themselves from the National Settlement Class, (ii) to opt in to the National
-216620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

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Settlement Class, and, if eligible, become National Participating Claimants, (iii) to

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elect to be represented by counsel of their choosing, and/or (iv) to object to the

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terms of the settlement. The National Notice will be mailed to all National Class

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Members at their Last Known Addresses. The plan regarding National Notices

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proposed by the Settling Parties is the best practical under the circumstances and

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satisfies pertinent due process requirements.

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Good cause appearing therefore, IT IS HEREBY ORDERED that:

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1.

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Pursuant to Rule 23 of the Federal Rules of Civil Procedure and

29 U.S.C. § 216(b), the California Class and National Class are provisionally
certified, and the Stipulation of Settlement is preliminarily approved;
2.

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Notice of the proposed settlement, and the rights of California

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Class Members to opt out of the settlement or become California Participating

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Claimants, shall be given by mailing of the California Notice by first class mail,

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postage prepaid, to all California Class Members pursuant to the applicable

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provisions in the Stipulation. Yelp shall provide the Claims Administrator with the

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information necessary to conduct this mailing as set forth in the Stipulation;
3.

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Notice of the proposed settlement, and the rights of National

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Class Members to opt in to the settlement and become National Participating

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Claimants, if eligible, or refrain from acting and thereby exclude themselves from

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the settlement, shall be given by mailing of the National Notice by first class mail,

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postage prepaid, to all National Class Members pursuant to the applicable

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provisions in the Stipulation. Yelp shall provide the Claims Administrator with the

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information necessary to conduct this mailing as set forth in the Stipulation
4.

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Yelp has agreed to pay Class Counsel their reasonable attorney

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fees in this matter in the maximum total combined, gross amount not to exceed

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$312,500 as well as certain allowable costs in this matter up to the maximum gross

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amount of $10,000, and Yelp has agreed to pay enhancement awards in the total

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maximum gross amount of $15,000 ($5,000 to each Class Representative) to the
-316620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

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Class Representatives to reimburse them for their unique services and execution of

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general releases. The Court preliminarily finds that these agreements are fair and

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reasonable;
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A hearing shall be held before this Court on October 12, 2012 at

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1:30 p.m. to consider whether the settlement should be given final approval by the

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Court:
(a)

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Written objections by California Class Members and National

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Class Members to the proposed settlement will be considered if received by Class

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Counsel on or before the Notice Response Deadline. Written objections by

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California Class Members and National Class Members to Class Counsel’s request

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for attorneys’ fees will be considered if a written objection is received by Class

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Counsel or the Claims Administrator within ten days following Class Counsel’s

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filing of a motion for such fees;
(b)

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At the Settlement Hearing, California Class Members and

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National Class Members who have filed timely written objections may be heard

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orally in support of, or in opposition to, the settlement;
(c)

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Class Counsel and counsel for Yelp should be prepared at the

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hearing to respond to objections filed by California Class Members and National

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Class Members, if any, and to provide, as appropriate, other information bearing on

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whether or not the settlement should be approved; and
6.

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In the event that the Effective Date occurs, all California

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Settlement Class Members will be deemed to have forever released and discharged

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the California Released Claims, all National Settlement Class Members will be

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deemed to have forever released and discharged the National Released Claims, and

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the Litigation will be dismissed with prejudice. In the event that the Effective Date

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does not occur for any reason whatsoever, the Stipulation shall be deemed null and

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void and shall have no effect whatsoever.
7.

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Prior to the Settlement Hearing, the parties shall file a joint
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16620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

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motion for final approval of the settlement, and Class Counsel shall file a motion

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for an award of attorneys’ fees and costs.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: ______________________ ___________________________________
The Honorable Edward M. Chen
United States District Judge

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-516620979.2

[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC

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