Larkin v. Yelp! Inc.
Filing
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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)
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PETER RUKIN (SBN 178336)
RUKIN HYLAND DORIA & TINDALL LLP
100 Pine Street, Suite 2150
San Francisco, CA 94111
Telephone:
(415) 421-1800
Facsimile:
(415) 421-1700
E-mail:
peterrukin@rhdtlaw.com
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Attorneys for Plaintiffs
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MALCOLM A. HEINICKE (SBN 194174)
Malcolm.Heinicke@mto.com
CAROLYN V. ZABRYCKI (SBN 263541)
Carolyn.Zabrycki@mto.com
MUNGER, TOLLES & OLSON LLP
560 Mission Street
Twenty-Seventh Floor
San Francisco, CA 94105-2907
Telephone:
(415) 512-4000
Facsimile:
(415) 512-4077
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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.,
Judge:
Honorable Edward M. Chen
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Defendant.
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17897639.1
[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 4, 2012. At that hearing, the Court
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conditioned the grant of preliminary approval of the settlement on the parties’
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agreement to make certain changes to the agreement, primarily concerning the
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notice process. The Court has now considered the Stipulation Re: Settlement of
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Class and Collective Actions (and its exhibits), the submissions of counsel, the
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stipulation amending the Stipulation Re: Settlement of Class and Collective
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Actions per the Court’s June 4, 2012 instructions, and all other papers filed in this
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action. The matter having been submitted and good cause appearing therefore, the
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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
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approving this settlement only and for no other purpose and with no other effect,
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the proposed California Class meets the requirements for certification under Rule
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23 of the Federal Rules of Civil Procedure: (a) the proposed California Class is
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ascertainable and so numerous that joinder of all members of the class is
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impracticable; (b) there are questions of law or fact common to the proposed
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California Class; (c) the claims of the Class Representatives Justin Larkin and
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Anthony Tijerino (the “California Class Representatives”) are typical of the claims
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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
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Representatives will fairly and adequately protect the interests of the proposed
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California Class Members; (e) a class action is superior to other available methods
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for an efficient adjudication of this controversy, especially given the settlement
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context here; and (f) the counsel of record for the California Class Representatives
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are qualified to serve as counsel for the Class Representatives in their own
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capacities as well as their representative capacities and for the California Class;
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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
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context of this Settlement, the proposed California Class and the proposed National
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Class meet the requirements for certification as a collective action class under 29
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U.S.C. § 216(b) because a sufficient initial showing has been made that the
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California Class 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;
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The moving parties have also presented to the Court for review
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a 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
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requirements of Federal Rule of Civil Procedure 23; and
-217897639.1
PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC
7.
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The moving parties have also presented to the Court for review
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a 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
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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.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure and
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29 U.S.C. § 216(b), the California Class and National Class are provisionally
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certified, and the Stipulation of Settlement is preliminarily approved;
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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
-317897639.1
PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC
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
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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 November 16,
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2012 at 1:30 p.m. to consider whether the settlement should be given final approval
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by the 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 within ten days of the filing of the motion for final approval of the
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settlement, and this deadline is anticipated to be October 22, 2012;
(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
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on whether or not the settlement should be approved; and
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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
-417897639.1
PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC
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void and shall have no effect whatsoever.
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Prior to the Settlement Hearing, the parties shall file a joint
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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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-517897639.1
PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL –
Case No. 11-CV-01503 EMC
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