Larkin v. Yelp! Inc.

Filing 48

MOTION for Settlement PLAINTIFFS' MOTION FOR AN ORDER (1) GRANTING FINAL APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT; (2) APPROVING AWARD OF CLASS REPRESENTATIVE SERVICE PAYMENTS; (3) APPROVING AWARD OF ATTORNEYS FEES AND COSTS. filed by Ahmad Deanes, Justin Larkin, Anthony Tijerino. Motion Hearing set for 11/30/2012 02:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 11/2/2012. Replies due by 11/9/2012. (Attachments: # 1 Declaration Declaration of Peter Rukin in support of Final Approval, # 2 Declaration Declaration of Rosa Gallenberg in support of Final Approval, # 3 Declaration Declaration of Thomas Urmy in support of Final Approval, # 4 Declaration Declaration of Krista Tittle in support of Final Approval)(Rukin, Peter) (Filed on 10/19/2012)

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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 AN
ORDER (1) GRANTING FINAL
APPROVAL OF CLASS AND
COLLECTIVE ACTION
SETTLEMENT; (2) APPROVING
AWARD OF CLASS
REPRESENTATIVE SERVICE
PAYMENTS; (3) APPROVING
AWARD OF ATTORNEYS’ FEES
AND COSTS.
Date: November 30, 2012
Time: 2:30 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 FINAL APPROVAL

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I, Rosa Vigil-Gallenberg, hereby declare as follows:
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I am an attorney in good standing with the State Bar of California, and admitted to

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practice before this Court. I make this declaration of personal knowledge and if called as a

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witness I could and would testify competently to the facts stated herein.

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2.

I am founder of Gallenberg PC, a professional law corporation in the state of

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California, and co-counsel for Plaintiffs. I am the attorney at my office responsible for

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prosecuting this case.

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3.

This Declaration is respectfully submitted in support of Plaintiffs’ Motion for an

Order (1) Granting Final Approval of Class and Collective Action Settlement; (2) Approving

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Award of Class Representative Service payments; and (3) Approving Award of Attorneys’ fees

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and Costs.

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Professional Background

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4.

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 and consumer class

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actions.

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5.

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.

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

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GALLENBERG DECL. ISO FINAL APPROVAL

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Stephens Institute (overtime class action; San Francisco County Superior Court Case No.
CGC11509952), Wilhelm v. International Career Development Center, Inc., (consumer class
action, Los Angeles County Superior Court Case No. BC481389), Larkin v. Yelp!, Inc. (overtime
class action; N.D. Cal. 3:11-CV-01503), Steven Jones v. Canon Business Solutions Inc. (overtime
class action; C.D. Cal. 2:12-CV-07195).
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I am currently a member of the State Bar of California Labor Employment and

Litigation Sections, a member of the Bar Association of Los Angeles Labor and Employment
Section as well as a member of the Consumer Attorneys of California.
This Litigation
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My office and our co-counsel, Rukin Hyland Doria & Tindall LLP and Shapiro

Haber & Urmy LLP 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.
12.

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

my experience, the fee it has requested in this case is fair, adequate and reasonable.
Attorney Fee Request
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This litigation has required my office to spend time and financial resources which

we could have devoted to other matters. My office has not been compensated for any of this time
since the litigation began. From the beginning, prosecution of this class action has involved
significant risk for my office, which undertook the matter solely on a contingent basis with no
guarantee of recovery. My office placed at risk its own resources to investigate and prosecute this
action for nearly two years. But for my involvement in this litigation, I could and would have
accepted other potentially profitable work of similar complexity. In addition, I have clients who
retain me on an hourly basis. The time spent on this litigation precluded me from accepting this
type of work as well.
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The work I have performed in this case includes but is not limited to the following

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tasks: (1) pre litigation investigation of the merits of the case including legal research, document
review and witness interviews; (2) preparing the Complaint and First Amended Complaint in the
action; (3) conferring with co-counsel regarding case strategy; (4) legal research including but not
limited to research regarding arbitration issues, class action waivers, release of claims through
severance agreements, and other legal research; (5) making document and information requests;
(6) reviewing and analyzing documents produced by Defendant, including its policies,
employment agreements, account executive compensation documents, and spreadsheets
regarding the number of people that signed different waivers or releases; (7) reviewing and
revising a mediation brief including preparing damage calculations; (8) participating in
mediation; (9) negotiating/drafting/editing settlement documentation over the course of over six
months; (10) reviewing and analyzing reports submitted by the Claims Administrator and
communicating with Claims Administrator regarding the status of the claims process; (11)
responding to Class Members e-mails and phone calls regarding this litigation and settlement;
(12) Conducting a public records search for contact information for each person listed in the list
of 100 random Class Members who had not submitted claim forms as of September 6, 2012
(“Random List”) to make sure they had received the Class Notices and remind them of the
deadline to submit a claim form; (13) Contacted Class Members from the Random List whose
phone number were listed on public records searches to remind them of the deadline to respond to
the Class Notices; (14) prepared the moving documents for Preliminary Approval and prepare
and attend the Preliminary Approval hearing; and (15) prepared the moving documents for Final
Approval of Settlement.
16.

I have incurred approximately $162,000 in attorney time1 charges in connection

with this matter to date. More attorney time will be invested in the future to respond to any
objections to the settlement if any, travel to and attend the hearing for Final Approval in San
Francisco, resolve issues involving late/disputed claims, negotiate/draft the releases of the Class
Representatives, and perform other tasks necessary to complete the settlement and claims process.
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As of October 17, 2012, I have devoted approximately 360.5 hours to this matter and not been
paid for any of those hours.
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17.

Based on the attorney fee amount requested in this case, I will be receiving

substantially less than my lodestar calculation once all three firms are paid out of the fee
requested. Therefore, I believe the attorney fee requested in this matter is more than reasonable.
18.

My office has also incurred approximately $1,629.54 in costs2 to date and will

incur more costs related to traveling to the hearing for Final Approval of Settlement in San
Francisco. I have not been reimbursed for any of those costs.
I declare under penalty of perjury, under the laws of the United States, that the foregoing is
true and correct. Executed this 19TH of October 2012, at Los Angeles, California.

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/s/ Rosa Vigil-Gallenberg
ROSA VIGIL-GALLENBERG

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Travel and research costs.

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