Larkin v. Yelp! Inc.

Filing 40

NOTICE by Ahmad Deanes, Justin Larkin, Anthony Tijerino Notice of Filing (Attachments: # 1 Exhibit California Notice, # 2 Exhibit National Notice)(Rukin, Peter) (Filed on 7/11/2012)

EXHIBIT 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,

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Plaintiffs,

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v.

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YELP! INC.,
Defendant.

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

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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.

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

INTRODUCTION AND SUMMARY

This is to notify you of a lawsuit against Yelp! Inc. (“Yelp”) and the proposed class action
settlement of that lawsuit. The lawsuit, entitled Larkin v. Yelp! Inc., Case No. 11-CV-01503
EMC, United States District Court for the Northern District of California, concerns the
compensation of Account Executives (including all of the positions listed above). You have
received this Notice because Yelp’s records suggest that you may be one of the current or former
Account Executives employed by Yelp in the United States outside of the state of California
during the pertinent period. This Notice provides instructions on the options available to you – in
particular, it will explain your options:

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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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NOTICE TO CLASS ACTION MEMBERS –
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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 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.

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Please understand that this is not a notice of a lawsuit against you. You have not been 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 and collective action against Yelp. The lawsuit alleges, among other things, that

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

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

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

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

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

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

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and Senior 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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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 the United States of America (including without limitation the

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

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

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Yelp has reviewed the claims in this lawsuit in detail, has denied any wrongdoing or
liability in this matter. Yelp is committed to compensating its employees lawfully. Although

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NOTICE TO CLASS ACTION MEMBERS –
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Yelp believes that it has ample legal and factual grounds for defending and defeating the claims
at hand, it has chosen to work with Plaintiffs and their counsel to resolve this matter in order to
avoid the further expense and burden of litigation pursuant to the procedure set forth in this
Notice.

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Yelp will not retaliate against any class members for exercising or not exercising the
rights described in this Notice, the aforementioned lawsuit, and/or settlement, and does not
encourage or discourage any specific type of response. Whether and how you respond to this
notice will have no effect on your employment at Yelp.
III.

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

reached a voluntary settlement agreement with Yelp. The total maximum amount of the
consolidated settlement is $1,250,000, with approximately one-third of that amount allocated to
the resolution of the claims of the National Settlement Class.
Through this settlement, neither Yelp nor its employees have admitted any liability or
wrongdoing. A full copy of the settlement agreement, which is entitled the Stipulation Re:
Settlement of Class and Collective Actions, as well as other public documents filed with regard
to this matter can be inspected in the Office of the Court Clerk (see below). This settlement has
been preliminary approved by the Court.
Only those individuals who opt-in by submitting a qualifying National Opt In and
Claim Form will remain Members of the National Class and will be eligible to participate in
this settlement and receive payment under this agreement, and only those individuals who
submit qualifying claim forms will receive payment. If you do not complete and timely
submit the National Opt In and Claim Form, you will not be included in the National Class.
If you do not opt in to the settlement, you will neither be eligible to receive any payment
pursuant to this settlement, nor be bound by the judgment and associated waiver or release
of related claims.

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NOTICE TO CLASS ACTION MEMBERS –
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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
Form will receive a minimum amount per each qualifying week worked between May 11, 2008
and December 31, 2011. Currently, your estimated settlement payment is at least $[MERGE]
because we estimate that you worked [MERGE] qualifying weeks during the period between
May 11, 2008 and December 31, 2011 in a state other than California, i.e., you worked that many
weeks in one of the covered positions during this time frame.
C. Is My Settlement Payment Taxed?
A portion of any payment made to you under the settlement will be subject to required
wage withholdings and deductions, and as a result, the amount you receive will be less than the
gross amount listed above. Yelp will report thirty-three percent (33%) of this payment to
relevant government entities as a wage payment, and will report the remaining sixty-seven
percent (67%) as a non-wage payment. Yelp reserves the right to make any required
withholdings or deductions as required by applicable law, and National Class Members should
be advised that Yelp will report any payments made pursuant to this agreement to the Internal
Revenue Service and other relevant government entities (if any) as required by law.
Each National Class Member will be solely responsible for reporting any payment received
pursuant to this settlement and for paying any taxes associated with the same. Neither the Class
Representatives, Class Counsel, nor Yelp makes any representations concerning the tax
consequences of this settlement or your participation in it. If you have any questions about the
tax consequences of the payments you may receive under the settlement, you should consult your
tax advisor.
D. What if I think I worked More Workweeks?
If you believe the number of qualifying work weeks listed above in Section III.B is
inaccurate, please contact the Settlement Administrator or Class Counsel immediately and
provide them with any supporting documentation in support of your view. Remember, however,
that the only weeks that qualify are weeks in which you worked in one of the covered positions

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NOTICE TO CLASS ACTION MEMBERS –
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during the pertinent time frame. So, for example, work in other positions does not count and
work performed in 2012 and beyond does not count.

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E. How Much Will Class Counsel Be Paid in Attorneys’ Fees?

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Class Counsel will request that the Court award them attorneys’ fees up to 25% of the
maximum settlement amount that Yelp could pay, or $312,500. This request will be subject to
review and approval by the Court. Yelp has agreed not to oppose this request. Class Counsel
will also seek reimbursement of up to $10,000 in out-of-pocket expenses incurred in this case,
which will also be subject the Court’s approval. Any amounts approved by the Court will
constitute full payment for all legal fees of Class Counsel in the action, including any work they
do in the future in connection with the Settlement. In the event any amount of the requested fees
or costs are not approved by the Court, the unawarded amount will revert to the maximum
settlement payout to class members.

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

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The settlement additionally provides that deductions from the Maximum Settlement
Amount will be made for (1) reimbursement of settlement administration expenses not to exceed
$25,000; (2) enhancement payments of $5,000 to each of the three Plaintiffs for a total of
$15,000; (3) payment of $7,500 to the California Labor and Workforce Development Agency.
These estimated payments are all subject to the approval of the Court.
IV.

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
who purportedly are in similar situations or have similar claims. In other words, the Class
Representatives are seeking to represent those who are purportedly similarly situated and thus
may also have similar or related claims. In order to ensure that all National Class Members are
given an adequate opportunity to protect their rights, this Notice is being mailed to the last known
addresses of all National Class Members, and address verification measures have been taken.

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NOTICE TO CLASS ACTION MEMBERS –
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V.

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

member of the conditionally certified National Class. Specifically, these records suggest that you
were employed by Yelp as an Account Executive in the United States in a state outside of
California during the pertinent period. Current members of the National Class have several
options:

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

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.

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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).

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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 was

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

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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 National

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Settlement Class in the settlement by submitting a claim for payment. YOU MUST SUBMIT

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AN OPT IN AND CLAIM FORM TO BE PAID. National Class Members who choose this

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option and become members of the National Settlement Class will be represented by the Class

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Representatives and Class Counsel. The law firms acting as Class Counsel in this matter are the

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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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NOTICE TO CLASS ACTION MEMBERS –
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ROSA VIGIL-GALLENBERG
GALLENBERG PC
9701 Wilshire Blvd. Suite 1000
Beverly Hills, CA 90212
Tel: [phone]

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IAN MCLOUGHLIN
TOM URMY
SHAPIRO HABER & URMY LLP
53 State Street, 13th Floor
Boston, MA 02109
Alternatively, National Class Members who opt in to the National Settlement Class may
participate in this action at their own expense and may retain their own attorneys. National Class
Members who choose this option will be responsible for any attorney fees or costs incurred as a
result of this election.
If you choose to become a member of the National Settlement Class and properly and
timely submitting a claim form, you will receive payment pursuant to the settlement agreement.
In other words, only National Settlement Class Members that properly and timely submit claim
forms can receive payment.
National Class Members who wish to submit a claim should review and then fully
complete, execute, and mail the form entitled “National Opt In and Settlement Claim Certification
Form” attached to this Notice as Form A by no later than [Notice Response Deadline]. The
submission deadline is final, and claim forms that are not postmarked on or before that date will
not be honored.
National Class Members who opt in to the National Settlement Class may also object to
the terms or nature of the settlement at or prior to the hearing on the settlement using the
procedure set forth below.
C. How Do I Not Participate in The Settlement?
National Class Members may elect to not participate in the National Settlement Class and
thus exclude themselves from this action and the associated settlement and judgment. National
Class Members who do not opt in to this action will not receive any money from this
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 wages
and remedies relating to record-keeping and timing of wage payment requirements.
D. How Do I Object to The Settlement?
If you do not like any terms of the Settlement or Class Counsel’s request for attorneys’
fees and costs, you can submit a written objection. Your objection must be in writing and include
your full name, address, telephone number, signature and a statement that you object to the
Settlement in Larkin v. Yelp! Inc., C.A. No. 11-01503 EMC and the reason(s) for your objection.
The objection should be mailed to Peter Rukin at Rukin Hyland Doria & Tindall LLP, 100 Pine
Street, Suite 2150, San Francisco, CA 94111, and postmarked no later than [Objection
Deadline].
Even if you object, you also may complete and submit the enclosed Claim Form. If you
object but do not submit the Claim Form and the Court overrules your objection, then you would
not receive a Settlement payment.
VI. RELEASE OF CLAIMS
All Members of the National Class who opt in to the settlement shall be subject to the
judgment connected with this action and associated settlement. This means they shall be deemed
to have forever released and discharged Yelp and all its past and present affiliates, directors,
officers, employees, partners, members, principals, agents, insurers, co-insurers, re-insurers,
shareholders, attorneys, and personal or legal Representatives from any demands, rights,
liabilities, and causes of action of every nature and description whatsoever, including without
limitation statutory, constitutional, contractual or common law claims, whether known or
unknown, whether or not concealed or hidden, whether arising under federal or state law, against
Yelp, its affiliates, employees, agents, or any of them, including without limitation claims for
wages, damages, unpaid costs, penalties, liquidated damages, punitive damages, interest, attorney
fees, litigation costs, restitution, or equitable relief, that accrued through December 31, 2011 as a
result of the National Class Member’s employment as an Account Executive in any state other
than California for Yelp, based on the following categories of claims or allegations: (a) any and

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NOTICE TO CLASS ACTION MEMBERS –
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all claims for (i) failure to pay wages for work performed in excess of eight hours in a day or
forty hours in a week, regular; and/or (ii) failure to pay regular or overtime wages, failure to pay
minimum wages, failure to comply with payroll or wage record-keeping or itemization
requirements; (b) any and all claims alleging statutory violations arising from the same categories
of allegations set forth above in (a), including without limitation claims under the Fair Labor
Standards Act (“FLSA”), the Portal to Portal Act, and pertinent state laws; (c) any and all claims
for penalties or liquidated damages or other available remedies arising from the categories of
allegations set forth above in (a) and (b; and (d) any and all claims for interest, costs, or attorney
fees arising from the categories of allegations set forth above in (a) and (b) and (e) to the extent
not covered by the above, any and all claims pled in the Litigation.
VII.

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

approval of class actions and Rule 23 of the Federal Rules of Civil Procedure and the procedures
for collective actions under the FLSA, the Court granted preliminary approval for the settlement
of this matter as a class and collective action and scheduled a hearing on final approval for
[INSERT DATE]. This hearing will take place before the Honorable Edward M. Chen in
Courtroom 5 of the United States District Courthouse for the Northern District of California, 450
Golden Gate Avenue, 17th Floor, San Francisco, California 94102. Members of the National
Class can express their views on the settlement at or before this hearing but you are not required
to do so, nor are you required to attend this hearing to exercise any of your rights. National Class
Members can exercise either their right to obtain payment or choose not to opt in; again, no
appearance at the hearing is required.
At this hearing, Class Counsel will present any timely written objections to the Court.
Late written objections will not be valid.
Again, attendance at this hearing is completely optional; attendance at the hearing is
not required to participate in the settlement or to opt out of the lawsuit.
VIII. EXAMINATION OF PAPERS FILED IN THIS ACTION

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NOTICE TO CLASS ACTION MEMBERS –
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This Notice does not fully describe the action. Members of the public, including but not
limited to those whose rights may be affected by this action, may inspect the files (including the
full settlement agreement) through the Court Clerk at the following address: Office of the Clerk,
United States District Court for the Northern District of California, 450 Golden Gate Avenue,
17th Floor, San Francisco, California 94102.
At this website [WEBSITE ADDRESS], you can obtain copies of the following
documents: (a) the operative complaint in the Litigation; (b) the operative answer in the
litigation; (c) the complete settlement agreement; (d) the motion for preliminary approval; (e)
Plaintiffs’ Motion for Final Approval of Settlement and Award of Attorneys’ Fees when it is
filed; and (f) the order granting preliminary approval and setting the Settlement Hearing.

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

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NOTICE TO CLASS ACTION MEMBERS –
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FORM A
FOR
NOTICE TO COLLECTIVE ACTION CLASS MEMBERS RE: PENDENCY OF A
COLLECTIVE ACTION AND NOTICE
OF HEARING ON PROPOSED SETTLEMENT

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National Opt In and Settlement Claim Certification Form
Pursuant to Section VII of the Notice, I hereby wish to opt in to this action
pursuant to the federal Fair Labor Standards Act, and I hereby answer the following questions
(designed to determine my eligibility for a settlement payment):
I confirm that I was employed by Yelp in the United States of America at a
location outside of California at some point between May 11, 2008 and December 31, 2011 as an
Account Executive (which includes positions with 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).
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
plaintiffs are alleging among other things that they and others, including me, earned and are
entitled to such compensation because we allegedly worked overtime but did not receive premium
pay for it. By submitting this form, I acknowledge that I am consenting to opt in and opting into
this action and settlement pursuant to the federal Fair Labor Standards Act and 29 U.S.C. §
216(b) and that I understand that by doing so, I will be subject to the judgment and be precluded
from pursuing all of the claims, known or unknown, described in the Notice. Checking the first
box above will preclude you from monetary recovery here.
Submission of this claim form will have no effect on my employment. Yelp has
agreed, and pertinent law requires, that Yelp not take any adverse action against you because you
file (or do not file) a claim.

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.
Name of Class Member (print):
Address:
City, State and Zip Code:
____

PLEASE CHECK THIS BOX IF THIS IS A NEW ADDRESS

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Date: ____________________________
Signature: _________________________

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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:

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Simpluris, Inc.

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Re: Larkin Matter

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ADDRESS

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

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VALID AND EFFECTIVE.

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FORM B
FOR
NOTICE TO COLLECTIVE ACTION CLASS MEMBERS RE: PENDENCY OF A
COLLECTIVE ACTION AND NOTICE
OF HEARING ON PROPOSED SETTLEMENT

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Change of Name and/or Address Information
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:
Name:
Street and Apt. No., if any:
City, State and Zip Code:
For purposes of verification only, I began working at Yelp in
____________________, _______.
(Month)

(Year)

I understand that all future correspondence in this action, including but not
necessarily limited to important notices or payments to which I am entitled (if any), will be sent
to the address listed above and not to the address previously used. I hereby request and consent to
the use of the address listed above for these purposes.
DATED: ___________ ___, 200__

Submitted By:
_________________________________
Print Name
_________________________________
Signature
_________________________________
Date

PLEASE RETURN THIS FORM VIA UNITED STATES MAIL TO:
Simpluris, Inc.
Re: Larkin Matter
ADDRESS
THIS FORM MUST BE POSTMARKED BY [NOTICE RESPONSE DEADLINE],
TO CHANGE YOUR ADDRESS

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