Larkin v. Yelp! Inc.

Filing 37

STIPULATION WITH PROPOSED ORDER Amending Stipulation Re: Settlement of Class And Collective Actions filed by Yelp! Inc.. (Attachments: # 1 Proposed Order Granting Preliminary Approval and Settlement Hearing)(Heinicke, Malcolm) (Filed on 7/2/2012)

1

4

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]

5

Attorneys for Plaintiffs

6

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]

2
3

7
8
9
10
11
12

Attorneys for Defendant
YELP! INC.

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15
16
17

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

18
Plaintiffs,
19

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

v.
20
YELP! INC.,

Judge:

Honorable Edward M. Chen

21
Defendant.
22
23
24
25
26
27
28

17897639.1

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

The joint motion of the Settling Parties for an order preliminarily

1
2

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

3

hearing, came on for hearing on or about June 4, 2012. At that hearing, the Court

4

conditioned the grant of preliminary approval of the settlement on the parties’

5

agreement to make certain changes to the agreement, primarily concerning the

6

notice process. The Court has now considered the Stipulation Re: Settlement of

7

Class and Collective Actions (and its exhibits), the submissions of counsel, the

8

stipulation amending the Stipulation Re: Settlement of Class and Collective

9

Actions per the Court’s June 4, 2012 instructions, and all other papers filed in this

10

action. The matter having been submitted and good cause appearing therefore, the

11

Court finds as follows:
1.

12

All defined terms contained herein shall have the same

13

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

14

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

15

“Stipulation”);

16

2.

The Class Representatives and Yelp, through their counsel of

17

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

18

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

19

National Released Claims;

20

3.

The Court conditionally finds that, for the purposes of

21

approving this settlement only and for no other purpose and with no other effect,

22

the proposed California Class meets the requirements for certification under Rule

23

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

24

ascertainable and so numerous that joinder of all members of the class is

25

impracticable; (b) there are questions of law or fact common to the proposed

26

California Class; (c) the claims of the Class Representatives Justin Larkin and

27

Anthony Tijerino (the “California Class Representatives”) are typical of the claims

28

of the members of the proposed California Class; (d) the California Class
-117897639.1

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

1

Representatives will fairly and adequately protect the interests of the proposed

2

California Class Members; (e) a class action is superior to other available methods

3

for an efficient adjudication of this controversy, especially given the settlement

4

context here; and (f) the counsel of record for the California Class Representatives

5

are qualified to serve as counsel for the Class Representatives in their own

6

capacities as well as their representative capacities and for the California Class;
4.

7

The Court conditionally finds that, for the purpose of approving

8

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

9

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

10

Class meet the requirements for certification as a collective action class under 29

11

U.S.C. § 216(b) because a sufficient initial showing has been made that the

12

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

13

The moving parties have presented to the Court for review a

14

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

15

within the range of reasonableness and meets the requirements for preliminary

16

approval;
6.

17

The moving parties have also presented to the Court for review

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

circumstances and satisfies pertinent due process requirements and the

28

requirements of Federal Rule of Civil Procedure 23; and
-217897639.1

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

7.

1

The moving parties have also presented to the Court for review

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

satisfies pertinent due process requirements.

12

Good cause appearing therefore, IT IS HEREBY ORDERED that:

13

1.

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

14

29 U.S.C. § 216(b), the California Class and National Class are provisionally

15

certified, and the Stipulation of Settlement is preliminarily approved;
2.

16

Notice of the proposed settlement, and the rights of California

17

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

18

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

19

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

20

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

21

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

22

Notice of the proposed settlement, and the rights of National

23

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

24

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

25

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

26

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

27

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

28

information necessary to conduct this mailing as set forth in the Stipulation
-317897639.1

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

4.

1

Yelp has agreed to pay Class Counsel their reasonable attorney

2

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

3

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

4

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

5

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

6

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

7

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

8

reasonable;
5.

9

A hearing shall be held before this Court on November 16,

10

2012 at 1:30 p.m. to consider whether the settlement should be given final approval

11

by the Court:
(a)

12

Written objections by California Class Members and National

13

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

14

Counsel within ten days of the filing of the motion for final approval of the

15

settlement, and this deadline is anticipated to be October 22, 2012;
(b)

16

At the Settlement Hearing, California Class Members and

17

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

18

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

19

Class Counsel and counsel for Yelp should be prepared at the

20

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

21

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

22

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

23

In the event that the Effective Date occurs, all California

24

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

25

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

26

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

27

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

28

does not occur for any reason whatsoever, the Stipulation shall be deemed null and
-417897639.1

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

1

void and shall have no effect whatsoever.
7.

2

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

3

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

4

for an award of attorneys’ fees and costs.

5
6

PURSUANT TO STIPULATION, IT IS SO ORDERED.

7
8
9
10

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

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-517897639.1

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