Levitt v. Yelp Motion To Dismiss

Case3:10-cv-01321-MHP Document59 Filed12/17/10 Page1 of 32
1 GIBSON, DUNN & CRUTCHER LLP

GAIL LEES, SBN 90363
2 glees@gibsondunn.com
333 South Grand Avenue
3 Los Angeles, California 90071-3197
Telephone: (213) 229-7000
4 Facsimile: (213) 229-7520
5 S. ASHLIE BERINGER, SBN 263977
SUSANNAH WRIGHT, SBN 264473
6 aberinger@gibsondunn.com
swright2@gibsondunn.com
7 1881 Page Mill Road
Palo Alto, California 94304-1211
8 Telephone: (650) 849-5300
Facsimile: (650) 849-5333
9
YELP! INC.
10 AARON SCHUR, SBN 229566
aschur@yelp.com
11 706 Mission Street
San Francisco, California 94103
12 Telephone: (415) 908-3801
Facsimile: (415) 908-3833
13
Attorneys for Defendant
14 YELP! INC.
15 UNITED STATES DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17 SAN FRANCISCO DIVISION
18 BORIS Y. LEVITT D/B/A RENAISSANCE Case No. CV 10-01321 MHP
RESTORATION, CATS AND DOGS ANIMAL Consolidated with CV 10-02351MHP
19 HOSPITAL, INC., TRACY CHAN D/B/A
MARINA DENTAL CARE and CLASS ACTION
20 PROFESSIONAL CONSTRUCTION GROUP,
INC. D/B/A PAVER PRO; on behalf of DEFENDANT YELP! INC.’S NOTICE OF
21 themselves and all others similarly situated, MOTION AND MOTION TO DISMISS
SECOND AMENDED CLASS ACTION
22 Plaintiff, COMPLAINT AND TO DISMISS OR
STRIKE CLASS ACTION
23 v. ALLEGATIONS; MEMORANDUM OF
POINTS AND AUTHORITIES
24 YELP! INC.; and DOES 1 through 100,
inclusive, Date: February 7, 2011
25 Time: 2:00 p.m.
Defendants. Place: Courtroom 15, 18th Floor
26 450 Golden Gate Avenue
San Francisco, California
27 Judge: The Honorable Marilyn H. Patel
28
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YELP’S MOTION TO DISMISS AND TO STRIKE CV 10-01321 MHP; CV 10-02351 MHP

1
TABLE OF CONTENTS
2
Page
3
I. ISSUES TO BE DECIDED ...................................................................................................... 1
4
II. INTRODUCTION AND SUMMARY OF ARGUMENT ....................................................... 1
5
III. ALLEGATIONS IN THE COMPLAINT................................................................................. 3
6
A. Yelp’s Online Review Service ...................................................................................... 3
7
1. Yelp’s Automated Review Filter ...................................................................... 4
8 2. Yelp’s Advertising Program ............................................................................. 4
9 B. Named Plaintiffs’ Allegations....................................................................................... 4
10 1. Non-Sponsor Plaintiffs:..................................................................................... 4
a. Boris Levitt ........................................................................................... 4
11
b. Cats & Dogs .......................................................................................... 6
12 2. Sponsor Plaintiffs .............................................................................................. 7
13 a. Tracy Chan ............................................................................................ 7
b. Paver Pro ............................................................................................... 9
14
3. Plaintiffs Fail To Allege the Core Elements of Their Claims........................... 9
15
C. Class Allegations......................................................................................................... 10
16
D. The Second Amended Complaint ............................................................................... 11
17
IV. ARGUMENT .......................................................................................................................... 11
18
A. Applicable Legal Standard.......................................................................................... 11
19 1. Motion to Dismiss for Lack of Standing Under Rule 12(b)(1)....................... 11
20 2. Motion to Dismiss Under Rule 12(b)(6) ......................................................... 11
21 B. Plaintiffs Lack Standing To Pursue Their Claims ...................................................... 12

1. Plaintiffs Lack Article III Standing................................................................. 12
22
a. Plaintiffs Fail to Sufficiently Allege an Injury In Fact ....................... 12
23 b. Plaintiffs Have Not Alleged a Non-Speculative Causal
Connection .......................................................................................... 14
24
c. Plaintiffs Fail to Sufficiently Allege a Redressable Injury ................. 16
25 2. Plaintiffs Also Lack Standing Under the UCL ............................................... 16
26 C. Plaintiffs Also Fail To State A Claim Under The UCL .............................................. 17
27 1. Plaintiffs Have Not Alleged “Unlawful” Conduct.......................................... 18
a. Plaintiffs Fail to Allege That Yelp Engaged in a Threat of
28 Unlawful Injury or Wrongful Use of Fear .......................................... 18
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YELP’S MOTION TO DISMISS AND TO STRIKE CV 10-01321 MHP
1 TABLE OF CONTENTS
[Continued]
2
Page
3
b. Non-Sponsors Plaintiffs Also Fail to Allege That They
4 Provided Property to Yelp................................................................... 20
5 c. Plaintiffs Do Not Allege That Fear Was the Controlling
Cause of Any Decision To Advertise ................................................. 21
6 d. Plaintiffs Fail to Allege That Any Purported “Fear” Was
Reasonable .......................................................................................... 21
7
2. Plaintiffs Have Not Alleged “Unfair” Conduct .............................................. 22
8
D. Because Plaintiffs Do Not Have Standing and Fail to State a Sufficient
9 Claim, the Class Allegations Also Must Be Dismissed .............................................. 23
10 E. The Second Amended Complaint Should Be Dismissed Without Leave

to Amend..................................................................................................................... 23
11
F. Plaintiffs Cannot Plead Legally Sufficient Class Allegations..................................... 23
12
V. CONCLUSION ....................................................................................................................... 25
13
14
15
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22
23
24
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1
TABLE OF AUTHORITIES
2
Page(s)
3
4 CASES
Arista Records v. Sanchez,
5
No. CV 05-07046, 2006 WL 5908359 (C.D. Cal. Mar. 1, 2006) ............................................ 21
6 Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ............................................................................................................. 12
7
Augustine v. United States,
8 704 F.2d 1074 (9th Cir. 1983)............................................................................................ 11, 19
9 Baba v. Hewlett-Packard Co.,
No. C 09-05946, 2010 WL 2486353 (N.D. Cal. June 16, 2010) ............................................. 23
10
Barnum Timber Co. v. U.S. Envtl. Prot. Agency,
11 No. C 08-01988 WHA, 2008 WL 4447690 (N.D. Cal. Sept. 29, 2008) .................................. 14
Birdsong v. Apple, Inc.,
12
590 F.3d 955 (9th Cir. 2009).................................................................................................... 17
13 Brazil v. Dell Inc.,
585 F. Supp. 2d 1158 (N.D. Cal. 2008) ................................................................................... 24
14
Browne v. Avvo, Inc.,
15 525 F. Supp. 2d 1249 (W.D. Wash. 2007)............................................................................... 16
16 Buena Vista, LLC v. New Res. Bank,
No. 10-1502 CW, 2010 WL 3448561 (N.D. Cal. Aug. 31, 2010) ........................................... 22
17
Californians for Disability Rights v. Mervyn’s, LLC,
18 39 Cal. 4th 223 (2006) ....................................................................................................... 12, 17
Carafano v. Metrosplash,
19
339 F.3d 1119 (9th Cir. 2003).................................................................................................. 15
20 Carbo v. United States,
314 F.2d 718 (9th Cir. 1963).................................................................................................... 22
21
Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co.
22 20 Cal. 4th 163 (1999) ............................................................................................................. 23
23 Chan v. Lund,
188 Cal. App. 4th 1159 (2010) ................................................................................................ 21
24
Clayworth v. Pfizer, Inc.,
25 49 Cal. 4th 758 (2010) ............................................................................................................. 17
Daugherty v. Am. Honda Motor Co.,
26
144 Cal. App. 4th 824 (2006) .................................................................................................. 18
27 Dodd-Owens v. Kyphon, Inc.,
No. C06-3988, 2008 WL 410241 (N.D. Cal. Feb. 12, 2008)................................................... 25
28
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1 TABLE OF AUTHORITIES
[Continued]
2
Page(s)
3
Gardner v. Martino,
4
563 F.3d 981 (9th Cir. 2009).................................................................................................... 16
5 Goddard v. Google, Inc.,
640 F. Supp. 2d 1193 (N.D. Cal. 2009) ................................................................................... 16
6
Hovsepian v. Apple, Inc.,
7 No. 08-5788, 2009 WL 5069144 (N.D. Cal. Dec. 17, 2009)................................................... 24
8 In re Actimmune Mktg. Litig.,
No. C 08-02376 MHP, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009) ..................................... 18
9
In re Stac Elecs. Sec. Litig.,
10 89 F.3d 1399 (9th Cir. 1996).................................................................................................... 12
In re Tobacco II Cases,
11
46 Cal. 4th 298 (2009) ............................................................................................................. 17
12 In re Wright,
65 Cal. 2d 650 (1967) .............................................................................................................. 20
13
Johnson v. Weinberger,
14 851 F.2d 233 (9th Cir. 1988).................................................................................................... 12
15 Lee v. Capital One Bank,
No. C 07-4599, 2008 WL 648177 (N.D. Cal. Mar. 5, 2008) ................................................... 13
16
Leong v. Square Enix of Am. Holdings, Inc. ........................................................................................ 23
17 Lierboe v. State Farm Mut. Auto. Ins. Co.,
350 F.3d 1018 (9th Cir. 2003).................................................................................................. 23
18
Lujan v. Defenders of Wildlife,
19 504 U.S. 555 (1992) ................................................................................................................. 12
20 Mazur v. eBay Inc.,
No. C 07-03967, 2008 WL 618988 (N.D. Cal. Mar. 4, 2008) ................................................. 15
21
McDonald v. Coldwell Banker,
22 543 F.3d 498 (9th Cir. 2008).................................................................................................... 22
Missing Link, Inc. v. Ebay, Inc.,
23
2008 WL 1994886 (N.D. Cal. May 5, 2008) ........................................................................... 17
24 Mitchell v. Sharon,
59 F. 980 (9th Cir. 1894).......................................................................................................... 19
25
O’Shea v. Littleton,
26 414 U.S. 488 (1974) ................................................................................................................. 23
27 People v. Anderson,
75 Cal. App. 365 (1925)........................................................................................................... 20
28
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[Continued]
2
Page(s)
3
People v. Goodman,
4
159 Cal. App. 2d 54 (1958)...................................................................................................... 21
5 People v. Sales,
116 Cal. App. 4th 741 (2004) .................................................................................................. 19
6
Petrochem Insulation, Inc. v. N. Cal. & N. Nev. Pipe Trades Counsel,
7 No. C-90-3628 EFL, 1991 WL 158701 (N.D. Cal. Apr. 30, 1991) ......................................... 20
8 Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530 (9th Cir. 1984).................................................................................................... 11
9
Rothman v. Vedder Park Mgmt.,
10 912 F.2d 315 (9th Cir. 1990).................................................................................................... 20
Rubio v. Capital One Bank,
11
613 F.3d 1195 (9th Cir. 2010).................................................................................................. 17
12 Sanders v. Apple, Inc.,
672 F. Supp. 2d 978 (N.D. Cal. 2009) ............................................................................... 11, 13
13
Sigmond v. Brown,
14 645 F. Supp. 243 (C.D. Cal. 1986)........................................................................................... 20
15 Sisseton-Wahpeton Sioux Tribe v. United States,
90 F.3d 351 (9th Cir. 1996)...................................................................................................... 24
16
Smith & Hawken, Ltd. v. Gardendance, Inc.,
17 No. C04-1664, 2004 WL 2496163 (N.D. Cal. Nov. 5, 2004).................................................. 23
Sosa v. DIRECTV, Inc.,
18
437 F.3d 923 (9th Cir. 2006).................................................................................................... 20
19 Stearns v. Select Comfort Retail Corp.,
No. 08-cv-02746, 2009 WL 4723366 (N.D. Cal. Dec. 4, 2009).............................................. 24
20
Sustainable Delta v. Fed. Emergency Mgmt. Grp.,
21 711 F. Supp. 2d 1152 (E.D. Cal. 2010).................................................................................... 14
22 Two Jinn, Inc. v. Gov’t Payment Serv., Inc.,
2010 WL 1329077 (S.D. Cal. Apr. 1, 2010) ............................................................................ 13
23
United States v. Billingsley,
24 474 F.2d 63 (6th Cir. 1973)...................................................................................................... 22
United States v. Marsh,
25
26 F.3d 1496 (9th Cir. 1994).................................................................................................... 22
26 United States v. Sequel Contractors, Inc.,
402 F. Supp. 2d 1142 (C.D. Cal. 2005) ................................................................................... 17
27
Vinole v. Countrywide Home Loans, Inc.,
28 246 F.R.D. 637 (S.D. Cal. 2007).............................................................................................. 26
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[Continued]
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Page(s)
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Wolk v. Green,
4
516 F. Supp. 2d 1121 (N.D. Cal. 2007) ................................................................................... 20
5
STATUTES
6
18 U.S.C. § 1951 .................................................................................................................................. 18
7
18 U.S.C. § 1951(b)(2)......................................................................................................................... 19
8 47 U.S.C. § 230(c) ........................................................................................................................... 3, 15
9 Cal. Bus. & Prof. Code § 17200 .......................................................................................................... 18
Cal. Penal Code § 518.............................................................................................................. 18, 19, 20
10
Cal. Penal Code § 519.................................................................................................................... 18, 19
11
Cal. Penal Code § 519(2) ..................................................................................................................... 19
12 Cal. Penal Code § 519(3) ..................................................................................................................... 19
13 Cal. Penal Code § 519(4) ..................................................................................................................... 19
14 Cal. Penal Code § 523.......................................................................................................................... 18
Cal. Penal Code § 524.................................................................................................................... 18, 19
15
F.R.C.P. § 12(b) ................................................................................................................................... 11
16
F.R.C.P. § 12(b)(6)............................................................................................................................... 11
17
18
19
20
21
22
23
24
25
26
27
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1 NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED CLASS ACTION

COMPLAINT AND TO DISMISS OR STRIKE CLASS ACTION ALLEGATIONS
2
3 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

4 PLEASE TAKE NOTICE that at 2:00 p.m. on February 7, 2010, or as soon thereafter as the
5 matter may be heard by the above-entitled Court, in the courtroom of the Honorable Marilyn H. Patel,
6 450 Golden Gate Avenue, San Francisco, California 94102, Defendant Yelp! Inc. (“Yelp”) will and
7 hereby does move for an order dismissing Plaintiffs’ Second Amended Class Action Complaint
8 (“SAC” or “Amended Complaint”) for a violation of California Business and Professions Code
9 Section 17200 et seq. (the “Unfair Competition Law” or “UCL”) under Rules 12(b)(1) and 12(b)(6)
10 of the Federal Rules of Civil Procedure. Yelp also moves to strike and/or dismiss the class action
11 allegations in the SAC under Rules 12(b)(6), 12(f) and/or 23 of the Federal Rules of Civil Procedure.
12 This motion is based on this Notice of Motion and Motion, the Memorandum of Points and
13 Authorities, the Court’s files in this action, the arguments of counsel, and any other matter that the
14 Court may properly consider.
15 MEMORANDUM OF POINTS AND AUTHORITIES
16 I. ISSUES TO BE DECIDED
17 1. Do Plaintiffs lack standing under Article III of the United States Constitution and the
18 California Unfair Competition Law?
19 2. Do Plaintiffs state a legally sufficient claim against Yelp for violations of the UCL?
20 3. Should Plaintiffs’ class allegations be dismissed or stricken pursuant to Federal Rules
21 of Civil Procedure 12(b)(6), 12(f) and 23 because they failed to plead an ascertainable or manageable
22 class or to allege commonality and typicality among the proposed class members?
23 II. INTRODUCTION AND SUMMARY OF ARGUMENT
24 Plaintiffs seek to suppress legitimate – and protected – online consumer commentary about
25 their businesses. Yelp is a leading Internet review website that allows members of the public to read
26 and write online reviews about their experiences with local businesses. The integrity of these reviews
27 has fueled the success of Yelp’s service, and Yelp goes to great lengths to combat efforts by some
28 businesses (including some of the Plaintiffs here) to post and solicit fake reviews. As Plaintiffs
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1 acknowledge, Yelp employs a proprietary automated algorithm to filter less reliable reviews from its
2 website, regardless of whether those reviews are written about businesses that advertise with Yelp.
3 Although Yelp strives to provide a fair and neutral service for consumers, Plaintiffs complain
4 that they were harmed by negative consumer reviews or that positive reviews were removed as
5 unreliable by Yelp’s automated filter. But Plaintiffs fail to allege a coherent – or actionable – theory
6 that Yelp is responsible for their speculative injuries. Indeed, Plaintiffs contend that they were
7 injured by reviews whether or not they advertised on Yelp, defeating the premise that Yelp somehow
8 manipulates reviews in favor of advertisers. Plaintiffs also cannot link any alleged harm to any
9 purported “extortion” by Yelp, and fail to allege that Yelp made a single threat of unlawful injury.
10 Unable to suppress public discussion about their businesses online or to succeed in their
11 efforts to post fake positive reviews about their businesses on Yelp, Plaintiffs filed this lawsuit,
12 asserting contrived and deficient claims for violation of California’s Unfair Competition Law and a
13 host of other claims. Plaintiffs’ claims have been a moving target, and they have filed no fewer than
14 five different pleadings in an attempt to state a viable theory against Yelp. While the First Amended
15 Complaint asserted that Yelp somehow had engaged in “deceptive” or “misleading” sales practices,
16 Plaintiffs abandoned these claims in response to Yelp’s latest motion to dismiss, and now premise
17 their case on unsupported allegations of “extortion.” Plaintiffs’ latest effort fares no better than their
18 prior failures, and the Second Amended Complaint should be dismissed with prejudice.
19 As a threshold matter, Plaintiffs fail to meet the most basic requirements for standing under
20 Article III of the United States Constitution or the UCL. Plaintiffs do not allege any particularized
21 “injury-in-fact,” and instead rely on vague and unsupported claims of “lost business” and reputational
22 harm that are insufficient to demonstrate standing here.
23 Plaintiffs’ sole UCL claim also fails because they fail to allege any conduct that is “unlawful”
24 or “unfair.” Although Plaintiffs attempt to base this claim on speculative allegations of extortion,
25 they do not plead a single instance where Yelp threatened to wrongfully injure a business unless it
26 advertised on Yelp – a basic and required element of any claim for actual or attempted extortion.
27 Instead, Plaintiffs allege merely that Yelp offered them a range of different advertising benefits that
28 cannot constitute extortion as a matter of law.
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1 At bottom, Plaintiffs’ claims are nothing more than vague complaints about the content of
2 negative reviews posted by consumers and Yelp’s use of an automated screening filter to ensure that
3 reviews posted on its website are authentic. It is well-settled that Yelp is immune from such claims
4 under Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c), which protects online
5 service providers from claims arising from publishing or screening user content online.
6 Even at the pleading stage, it also is apparent that Plaintiffs cannot possibly pursue their
7 claims on behalf of a putative class of businesses contacted by Yelp about advertising. The proposed
8 class definition is hopelessly overbroad and encompasses hundreds of thousands of businesses,
9 whether or not Yelp made any threats of unlawful injury that reasonably induced fear. Further, any
10 attempt to assess what occurred in hundreds of thousands of individual discussions with such
11 businesses – or to determine whether millions of consumer reviews were properly removed or
12 reinstated – would be impossible. Because the alleged class definition is fatally deficient, and
13 because Plaintiffs cannot certify a class on the fact-intensive claim asserted here under any class
14 definition, this Court also should dismiss or strike the class allegations at the pleading stage.
15 III. ALLEGATIONS IN THE COMPLAINT1

16 A. Yelp’s Online Review Service
17 Yelp publishes a popular website at www.yelp.com, which allows consumers to read and
18 write reviews about local businesses online. SAC ¶¶ 2, 21-24. As Plaintiffs admit, the reviews on
19 Yelp’s website are written by members of the public, who rate local businesses on a scale of one to
20 five stars. Id. ¶¶ 2, 22-23. As disclosed on portions of Yelp’s website referenced in the Second
21 Amended Complaint, well over 14 million reviews have been posted to Yelp’s website, and the
22 overwhelming majority of these reviews are positive – approximately 83% of reviews are 3 stars or
23
24
25
26
27 1 The following allegations are deemed to be true solely for purposes of this motion. Yelp
vigorously denies that it engaged in any misconduct or manipulated reviews, and if this case were to
28 proceed past the pleading stage, Yelp would demonstrate that Plaintiffs’ allegations are false.
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1 higher, whether or not the business advertises on Yelp. See Exhibit 1 to Declaration of Ashlie
2 Beringer (“Beringer Decl.”) (referenced in ¶¶ 2-3, 5 of the SAC).2
3 1. Yelp’s Automated Review Filter

4 As Plaintiffs concede, Yelp discloses on its website that it “has an automated filter that
5 suppresses a small portion of reviews – it targets those suspicious ones you see on other sites.” SAC
6 ¶ 5. The review filter is critical to ensuring that consumers see the most reliable reviews posted on
7 Yelp, rather than those that might have been written by a business owner seeking to deceptively
8 promote its own business or tarnish a competitor. See id. ¶ 6; Beringer Decl. Ex. 2 (cited in ¶¶ 3, 5 of
9 the SAC). The filter does not take into account whether or not a business advertises with Yelp, and
10 instead filters reviews based on an automated analysis of “how established a particular reviewer is.”
11 Id. As Yelp discloses on its website (in disclosures referenced in the SAC), because a reviewer’s
12 activities and “trustworthiness” can vary over time, “reviews can disappear and reappear over time”
13 based on the reviewer’s varying involvement with Yelp. Beringer Decl. Ex. 2.
14 2. Yelp’s Advertising Program

15 Yelp also provides businesses with an opportunity to advertise on Yelp.com. See Beringer
16 Decl. Ex. 3. Advertisers are featured in clearly designated sponsored results at the top of Yelp search
17 results and on related business pages. Id.3 In addition, advertising businesses are able to “enhance
18 [their] business page” with a photo slideshow, and to prevent competitors’ advertisements from
19 appearing on their business pages. Id.
20 B. Named Plaintiffs’ Allegations

21 1. Non-Sponsor Plaintiffs:
22 a. Boris Levitt
23 Boris Levitt concedes that his business received “several positive reviews” and only “one
24
25 2 Because the Second Amended Complaint specifically references and relies upon disclosures
contained on Yelp.com, the Court may consider the complete contents of these statements when
26 assessing Plaintiffs’ allegations. See, e.g., United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
27 3 Although Yelp previously offered advertisers the option to select a single “Favorite Review”
(clearly labeled as such) to display prominently on the business’s review page, it has since
28 discontinued this program.
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1 negative review” after signing up for a free business account on Yelp in 2008 – more than one year
2 before he ever spoke to anyone at Yelp about advertising. Id. ¶¶ 43, 45. Levitt nevertheless
3 complains that certain positive reviews were removed from his business’s Yelp page before and after
4 he received an offer to purchase advertising on Yelp.
5 Levitt alleges that when he contacted Yelp in May 2009 to “inquire about why a positive
6 review of his business had disappeared,” a representative of Yelp informed him (correctly) that she
7 could not “assist him in removing [sic] the [positive] review.” SAC ¶¶ 44. In earlier pleadings,
8 Levitt further conceded that this representative informed him that Yelp uses an “automated system
9 that decides how much trust to instill in a particular reviewer” and that may remove or reinstate
10 reviews, but that Yelp employees “don’t have the ability to evaluate or reinstate specific reviews”
11 that are filtered.4 First Amended Complaint (Dkt. Entry #48, Sept. 23, 2010) (“FAC”) ¶¶ 43, 45.
12 Levitt alleges that he was contacted a few months later by a Yelp sales representative, who
13 suggested (again, accurately) that Levitt could increase his “page views” by advertising on Yelp.
14 SAC ¶ 46. “[I]n response,” Levitt declined to advertise because he already had a “high volume of
15 users reviewing his business page” and a “rating of 4.5 stars” (despite not advertising). Id.
16 Levitt contends that after he declined to advertise on Yelp, additional 5-star reviews were
17 removed from his business page – conditions that existed months before he declined to advertise on
18 Yelp. Id. ¶¶ 43-44, 46, 48. Levitt fails to allege any facts suggesting that these reviews were
19 removed by any means other than the normal operation of Yelp’s automated review filter. See id. ¶¶
20 5-6. Instead, in the Second Amended Complaint, Levitt adds the bald assertion, “on information and
21 belief,” that “Yelp manipulated the reviews of Levitt’s business because he did not purchase
22 advertising,” despite paradoxically conceding that he received negative reviews, and lost positive
23 reviews, months before declining to advertise. Id. ¶¶ 43-45, 49.
24 Levitt vaguely complains that he experienced “a loss of sales, revenues and/or assets” and that
25 his “business’s reputation was injured,” although he fails to identify a single customer he lost due to
26
27
4 Levitt removed these admissions from the Second Amended Complaint, apparently to obscure the
28 fact that Yelp truthfully informed him in writing that it could not manipulate reviews on his behalf.
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1 any alleged conduct by Yelp (or otherwise) or to provide any specifics concerning how, or whether,
2 his business was harmed due to any unlawful conduct by Yelp. Id. ¶ 54.
3 b. Cats & Dogs

4 Cats and Dogs (“C&D”) focuses on two negative consumer reviews it received before
5 receiving an offer to advertise on Yelp. SAC ¶¶ 57, 61. Specifically, C&D alleges that it first
6 contacted Yelp in September 2009 to request removal of a review alleged to be “negative” and
7 “possibl[y] fals[e]”. Id. ¶¶ 57-58. Thereafter, the negative review was “removed,” even though C&D
8 did not advertise. Id. ¶¶ 59-60. C&D then alleges it received a second negative review. Id. ¶ 61.
9 C&D claims that about four months later it received a sales call from “Kevin,” who allegedly
10 offered various advertising benefits, including the ability to “hide negative reviews” or “place them
11 lower on the listing page” (allegations that Yelp vigorously denies). Id. ¶ 63. C&D “declined the
12 [alleged] offer, saying that [it] wanted to track referrals from Yelp . . . without ads.” Id. ¶ 64.
13 C&D contends that after it declined to advertise with Yelp, “highly negative, inflammatory”
14 reviews continued to reappear on its business page, just as they had before, but that Yelp was
15 unwilling to remove these reviews – consistent with its stated policies. Id. ¶¶ 5-6, 65-68. C&D now
16 asserts (on “information and belief”) that Yelp somehow published these third-party reviews “as a
17 threat” to cause C&D to advertise. Id. ¶ 66. Yet, C&D concedes that Yelp in fact advised that it was
18 unable to remove these customer reviews because it does “not have firsthand knowledge of a
19 reviewer’s identity or personal experience” and was “not in a position to verify [C&D’s] claims that
20 these reviewers . . . are connected to the recent vandalism at your hospital” – and not because C&D
21 had not purchased advertising. Id. ¶ 69.
22 C&D concludes by speculating that “[a]s a result of Yelp’s conduct,” it received “fewer
23 customers” and a “decrease in business revenues.” SAC ¶ 73. C&D further alleges that “negative
24 reviews” posted by third-party customers – and not any unlawful conduct by Yelp – harmed its
25 “business reputation.” Id.5
26
27
5 In fact, C&D conceded in its earlier complaint that after declining to advertise with Yelp, it
28 nevertheless “enjoyed a 4-star rating” on Yelp, with more than 60% of reviews giving it “a perfect 5-
[Footnote continued on next page]
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1 2. Sponsor Plaintiffs
2 a. Tracy Chan
3 Tracy Chan alleges that a Yelp representative supposedly called to “offer her lots of benefits”
4 if she advertised on Yelp, such as “the opportunity” to “hid[e] or bury[] bad reviews” and to “put
5 pictures on the Yelp page.” SAC ¶ 77. Chan concedes that she “ultimately declined to purchase
6 Yelp advertising” in response to these purported offers (which Yelp denies were made). Id. ¶ 79.
7 Chan complains that, thereafter, various “5-star reviews” were removed from her business’s
8 page – although, like the other Plaintiffs, she fails to allege facts indicating that these reviews were
9 removed due to anything other than the normal operation of Yelp’s review filter. Id. ¶ 80.
10 In her first complaint, Chan conceded that several months after speaking with Yelp about
11 advertising, she elected to purchase advertising on Yelp due to “months of experiencing a decline in
12 new patients” – and not due to any alleged threats by Yelp. FAC ¶ 74. Chan now asserts for the first
13 time that before purchasing advertising, she had a further conversation with Yelp – conspicuously
14 absent from her earlier pleading – in which a Yelp representative purportedly told her that Yelp
15 occasionally “tweeks” ratings and could “help her” in unspecified ways if she advertised. SAC ¶ 81.
16 Based on these recent allegations, Chan now asserts that she “believed” Yelp “manipulated”
17 reviews about her business and that she purchased advertising on Yelp “so that Yelp would reinstate
18 the positive reviews” and prevent “the posting of negative reviews” by consumers. Id. ¶¶ 82-83. As
19 in her earlier complaint, however, Chan does not allege that any representative of Yelp ever
20 threatened (or even suggested) that Yelp would harm Chan’s business or manipulate reviews if she
21 did not advertise on Yelp. Instead, Chan asserts merely that Yelp supposedly offered vague
22 “advertising services.” Id. ¶ 81.
23 Chan signed a one-year contract with Yelp “for advertising” in early August 2008. SAC ¶ 83.
24 Nowhere does Chan allege that she failed to receive the benefits specified in her contract with Yelp.
25 Instead, Chan alleges that her “overall star rating” initially increased after purchasing advertising, but
26
27 [Footnote continued from previous page]

star rating” – admissions C&D conspicuously removed from the Second Amended Complaint
28 because they conflict with its trumped up allegations of “injury.” FAC ¶ 63.
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1 declined shortly thereafter – defeating the spurious premise that Yelp somehow manipulates reviews
2 in favor of advertisers. Id. ¶¶ 83-84.
3 In the Second Amended Complaint, Chan also claims that after entering into a one-year
4 advertising contract, a Yelp salesperson requested that she make an “increased payment” for
5 advertising with Yelp – allegations also conspicuously absent from her earlier pleading. Id. ¶ 84.
6 Chan fails to describe the additional benefits she supposedly was offered by this representative, and
7 again, fails to allege that Yelp in any way threatened to harm or manipulate reviews for Chan’s
8 business unless she increased her advertising commitment with Yelp. Id.
9 Chan cancelled her one-year advertising contract in October 2008 just two months after
10 advertising on Yelp, and in the face of consumer reviews that were “again declining.” SAC ¶¶ 84-85.
11 Chan complains that some time after she stopped advertising, positive reviews were removed from
12 her business page, while negative consumer reviews continued to appear – just as they had during the
13 brief period that she advertised. Id. ¶ 85. Although Chan adds allegations “on information and
14 belief” that Yelp somehow removed the positive reviews to “cause Chan to fear” that it would
15 remove positive reviews unless she paid for advertising, she alleges no facts that in any way support
16 this claim, nor does she point to any statement or conduct by Yelp that could reasonably have
17 contributed to this belief. Id. ¶¶ 85-86.
18 Ultimately, Chan complains that during the 18 months after she stopped advertising on Yelp,
19 several positive reviews were removed from her business page (as was the case before and during the
20 period she advertised on Yelp), and that her “overall star rating fell” – although she again fails to
21 allege any facts demonstrating that the removal of these reviews by Yelp’s automated filter, or the
22 posting of negative consumer reviews, was in any way unlawful. Id. ¶¶ 86-90.
23 Chan alleges that she “lost money in advertising costs she paid to Yelp” purportedly “to avoid
24 Yelp’s manipulation of reviews,” although she does not allege that anyone from Yelp stated or
25 implied that Yelp would manipulate reviews or her “star rating” unless she purchased advertising. Id.
26 ¶ 91. Chan also makes vague and speculative allegations that she lost “sales, revenue, and/or assets”
27 as a result of Yelp’s “conduct,” and that her “business’s reputation” was injured “due to the posting
28 of negative reviews and/or removal of positive reviews” created by third parties. Id. ¶ 92.
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1 b. Paver Pro
2 Paver Pro alleges that it received several positive reviews, and some negative reviews, before
3 it elected to purchase advertising on Yelp. SAC ¶¶ 95-97. It complains that some of these positive
4 reviews were later removed, while two negative customer reviews remained on its business page –
5 although it provides no facts that suggest that this was due to anything other than the routine
6 application of Yelp’s automated review filter. Id. ¶ 97.
7 Although Paver Pro alleges “upon information and belief” that these reviews were removed
8 (or “maintained”) as a “threat to cause Paver Pro to fear” that its “star rating would be low” unless it
9 purchased advertising, it cites no facts in support of this speculative claim. Id. ¶ 98. In fact, Paver
10 Pro concedes that it never spoke to anyone at Yelp about advertising, and instead, purchased
11 advertising on its own initiative through Yelp’s website, with the unfounded hope that the “positive
12 reviews it received would be reinstated.” Id. ¶ 99.
13 Paver Pro alleges that at some point after it purchased advertising, “many of the positive
14 reviews that had disappeared were reinstated.” Id. ¶ 100. Despite having an “overall Yelp star rating
15 of 4 stars” in January 2010, Paver Pro apparently decided to stop advertising on Yelp in March 2010.
16 Id. ¶¶ 101-102. Paver Pro asserts that in April 2010, its overall star rating on Yelp dropped to 3 stars,
17 although it conspicuously fails to disclose its star rating at the time it stopped advertising on Yelp,
18 one month earlier. Id. ¶¶ 101, 103.
19 Paver Pro contends that it somehow “lost money in advertising costs,” even as it alleges that
20 positive reviews were “reinstated” and that its star rating was high during the period it advertised on
21 Yelp. Id. ¶ 100-104. In addition, Paver Pro alleges an unspecified “decrease” in its “business
22 revenues” due to “fewer customers” and “fewer Yelp users” viewing its business page. Id. ¶ 105.
23 Like the other Plaintiffs, Paver Pro contends that its “business’s reputation was injured” by “negative
24 reviews” posted by third parties “and/or removal of positive reviews” by Yelp’s automated filter. Id.
25 3. Plaintiffs Fail To Allege the Core Elements of Their Claims
26 Although the named Plaintiffs make wildly disparate and inconsistent claims concerning
27 Yelp’s alleged conduct, each fails to plead any of the basic facts necessary to support their sole UCL
28 claim here. Indeed:
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1 No Plaintiff alleges that any representative of Yelp threatened, or even implied, that Yelp
would subject it to harm unless it advertised on Yelp. Indeed, one Plaintiff (Paver Pro)
2 did not even speak to a Yelp representative.
3
Likewise, no Plaintiff alleges that it was compelled to give property to Yelp based on any
4 threat or wrongful use of fear by Yelp. To the contrary, the two Non-Sponsor Plaintiffs
concede that they declined to purchase advertising in response to Yelp’s generalized
5 offers, and the one Sponsor Plaintiff who actually spoke to Yelp (Chan) fails to allege any
conduct by Yelp that was remotely threatening or that could reasonably induce fear.
6
No Plaintiff pleads any facts to support the contention – “upon information and belief” –
7 that Yelp “manipulated” third-party reviews on behalf of advertisers. In fact, Non-
8 Sponsor Plaintiffs (like C&D) conceded that they received positive reviews and high star
ratings even without advertising on Yelp, while Sponsor Plaintiffs (like Chan) complained
9 about declining ratings during the period that they advertised.
10 All Plaintiffs allege generalized “harm” to their business in the most speculative terms,
and no Plaintiff identifies a single customer relationship that was disrupted or sale that
11 was lost. Plaintiffs also fail to allege facts demonstrating how these vague “injuries” were
12 caused by any unlawful conduct by Yelp, as opposed to the content of customer reviews
authored by third parties and Yelp’s use of an automated screening tool.
13
14 C. Class Allegations
15 Plaintiffs purport to assert claims individually and on behalf of all “businesses and persons . . .
16 who were in contact with Yelp regarding the option to advertise on Yelp,” and who were
17 subsequently “subject to the manipulation of the reviews of their businesses by Yelp – in a manner
18 that did not comply with Yelp’s representations regarding its Review Terms.” SAC ¶ 108(a) & (b).
19 The proposed class is divided into two subclasses: “Non-Sponsors” consist of businesses that
20 “declined to purchase advertising,” while “Sponsors” consist of businesses that “advertis[ed].” Id.
21 Notably, the proposed class definition encompasses all “businesses and persons” who “were
22 in contact with Yelp” about advertising, whether or not Yelp purportedly engaged in any threatening
23 or other wrongful conduct during those communications, and whether or not those communications
24 could reasonably have induced fear. Id. Likewise, the proposed class definition necessitates an
25 inquiry into the representations (if any) by Yelp to each putative class member regarding its “Review
26 Terms,” and a review-by-review analysis of whether the removal and/or reinstatement of millions of
27 third-party reviews was conducted “in a manner that did not comply with” those representations. Id.
28
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1 D. The Second Amended Complaint
2 The Second Amended Complaint is the fifth pleading to be filed in these consolidated actions.
3 After the Court appointed lead counsel and ordered Plaintiffs to file a consolidated amended
4 complaint, Plaintiffs filed the First Amended Complaint alleging claims for violations of the UCL,
5 California’s False Advertising Law, and intentional interference with prospective business advantage,
6 alleging that Yelp had engaged in “deceptive statements and misrepresentations to business owners”
7 to induce them to advertise on Yelp. See, e.g., FAC ¶¶ 106, 121, 123. After Yelp moved to dismiss
8 the First Amended Complaint (Docket No. 48), Plaintiffs once again sought to amend their pleading,
9 and removed all claims of “false” and “deceptive” conduct under the UCL and False Advertising
10 Law, as well as its intentional interference claim. This time, the Second Amended Complaint rests on
11 a different theory, premised entirely on unsubstantiated claims of “extortion” or “attempted
12 extortion.” SAC ¶¶ 117-130.
13 IV. ARGUMENT
14 A. Applicable Legal Standard
15 1. Motion to Dismiss for Lack of Standing Under Rule 12(b)(1)
16 A challenge to standing under Article III “pertain[s] to a federal court’s subject-matter
17 jurisdiction” and is therefore “properly raised in a motion under Federal Rule of Civil Procedure
18 12(b)(1).” Sanders v. Apple, Inc., 672 F. Supp. 2d 978, 983-84 (N.D. Cal. 2009). On a motion to
19 dismiss for lack of standing, “[n]o presumptive truthfulness attaches to plaintiff’s allegations, and the
20 existence of disputed material facts will not preclude the trial court from evaluating for itself the
21 merits of jurisdictional claims.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
22 2. Motion to Dismiss Under Rule 12(b)(6)
23 A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) when it
24 lacks sufficient facts to support a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,
25 749 F.2d 530, 533-34 (9th Cir. 1984). Although this Court must accept a plaintiff’s allegations as
26 true and construe them in a light most favorable to the plaintiff, “[c]onclusory allegations of law and
27 unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” In
28 re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996). To avoid dismissal, a complaint must
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1 do more than “plead[] facts that are ‘merely consistent with’ a defendant’s liability,” and, instead, a
2 plaintiff must set forth enough factual information to make it “plausible,” not merely “possible,” that
3 the defendant is liable. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
4 B. Plaintiffs Lack Standing To Pursue Their Claims

5 As a threshold matter, Plaintiffs have failed to plead facts sufficient to establish that they
6 satisfy “the irreducible constitutional minimum of standing” under Article III, as required to pursue
7 their claims in this Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs also
8 fail to satisfy the statutory standing requirements applicable to their claims under the UCL. See
9 Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal. 4th 223, 227-29 (2006). Because
10 Plaintiffs fail to make plausible, non-speculative allegations that they suffered an injury in fact, or
11 that they have lost “money or property” or suffered any non-speculative injury as a direct result of
12 Yelp’s allegedly wrongful conduct, Plaintiffs lack standing under either Article III or the UCL.
13 1. Plaintiffs Lack Article III Standing
14 To establish Article III standing, Plaintiffs must allege that (1) they “have suffered an ‘injury
15 in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized and (b)
16 actual and imminent, not conjectural or hypothetical;” (2) there is “a causal connection between the
17 injury and the conduct complained of;” and (3) it is “likely, as opposed to merely speculative, that the
18 injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61. A plaintiff does not
19 demonstrate standing “[w]hen speculative inferences are necessary . . . to establish either injury or the
20 connection between the alleged injury and the act challenged.” Johnson v. Weinberger, 851 F.2d
21 233, 235 (9th Cir. 1988) (affirming dismissal of plaintiff’s complaint for lack of standing because the
22 alleged injury was “hypothetical” and “at best, speculative”).
23 a. Plaintiffs Fail to Sufficiently Allege an Injury In Fact
24 Plaintiffs assert in conclusory terms that they have suffered injury in the form of an
25 unspecified “loss of sales, revenues and/or assets,” and non-specific harm to their “business’s
26
27
28
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1 reputation.” SAC ¶¶ 54, 73, 92, 105.6 Tellingly, Plaintiffs do not point to a single lost customer, and
2 they provide no details or factual support for their speculative claims of injury. Instead, Plaintiffs
3 rely on vague and unsupported claims of lost business and goodwill, alleging, for example, that
4 “fewer customers patronized the business[es], which caused a decrease in business revenues.” See id.
5 ¶¶ 54, 73, 92,105; see also id. ¶ 91 (alleging that Chan “experienced a decline in new patients”); id.
6 ¶ 104 (alleging “Paver Pro also experienced a decline in business”).
7 Courts have dismissed claims for lack of Article III standing – including UCL claims – in
8 precisely these circumstances. Most recently, in Two Jinn, Inc. v. Gov’t Payment Serv., Inc., 2010
9 WL 1329077 (S.D. Cal. Apr. 1, 2010), the court found that such speculative and non-concrete
10 allegations of “lost business” do not establish an “injury in fact” for purposes of Article III standing.
11 In Two Jinn, the plaintiff asserted UCL claims, alleging that it lost customers, causing it to “lose the
12 financial benefits of sales they would have made but for [defendant’s] illegal activities.” Id. at *2.
13 The court dismissed the plaintiff’s claims for lack of Article III standing, finding that the plaintiff
14 failed to allege an “injury in fact.” Id. at *3. Specifically, the court concluded:
15 This alleged “injury” is mere conjecture, and is certainly not concrete or

particularized. Plaintiff has not, and likely could not, point to any potential
16 customers who would have purchased bail from sources other than Defendant,
much less Plaintiff.
17
18 Id.
19 As in Two Jinn, Plaintiffs cannot point to a single “potential customer[] who would have
20 purchased” products or services but for Yelp’s alleged conduct, and their claims of “lost revenues”
21 and reputational harm are based entirely on impermissible conjecture. Id. Such speculative
22 assertions are wholly insufficient to establish Article III standing. See Sanders, 672 F. Supp. 2d at
23 984 (dismissal for lack of Article III standing where “speculative inferences are necessary to establish
24 either injury or the connection between the alleged injury and the act challenged”); Lee v. Capital
25 One Bank, No. C 07-4599, 2008 WL 648177, at *3 (N.D. Cal. Mar. 5, 2008) (Patel, J.) (dismissal for
26 lack of Article III standing where injury was “hypothetical” and not “actual or imminent”).
27
6 To the extent Sponsor Plaintiffs allege that their injuries consist of advertising payments to Yelp,
28 these allegations fail for lack of causation. See infra, pp. 14-16.
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1 b. Plaintiffs Have Not Alleged a Non-Speculative Causal Connection
2 Likewise, Plaintiffs cannot establish standing because they do not allege any nexus between
3 their purported “injuries” and any unlawful conduct by Yelp. Lujan, 504 U.S. at 560-61 (Article III
4 standing requires alleged injuries to be “fairly traceable to the challenged action of the defendant”).
5 Non-Sponsor Plaintiffs
6 Non-Sponsor Plaintiffs fail to allege any facts creating a plausible inference that any “decline”
7 in their business or reputation was caused by any extortion or other unlawful conduct by Yelp. Nor
8 can they: the Non-Sponsor Plaintiffs concede that they never purchased advertising from Yelp. SAC
9 ¶¶ 46, 64. Instead, Levitt asserts merely that “fewer customers patronized his business” sometime
10 after he declined to purchase advertising, but he does not allege – as he must – any facts that could
11 support a finding that this unspecified “decline” was due to any threat or wrongful use of fear by
12 Yelp, as opposed to customer dissatisfaction, economic conditions, or a multitude of other possible
13 factors. Id. ¶ 54. Likewise, C&D fails to allege how (or whether) any purported threats by Yelp
14 caused it to receive “fewer customers” or harmed its “business reputation.” Id. ¶ 73.
15 Plaintiffs also cannot magically create standing by amending their pleading to add conclusory
16 allegations that their non-specific injuries were the “result of Yelp’s conduct.” SAC ¶¶ 54, 73, 92,
17 105. Such generic allegations fail to establish standing absent specific, supporting facts. See Coal.
18 for a Sustainable Delta v. Fed. Emergency Mgmt. Grp., 711 F. Supp. 2d 1152, 1157-59 (E.D. Cal.
19 2010) (“standing may be based on ‘non-conclusory factual content’”); see also Barnum Timber Co. v.
20 U.S. Envtl. Prot. Agency, No. C 08-01988 WHA, 2008 WL 4447690, at *7 (N.D. Cal. Sept. 29, 2008)
21 (“injury and causation requirements would be empty if such conclusory and unsupported allegations
22 could alone confer standing”).
23 At bottom, Non-Sponsor Plaintiffs allege that they experienced an unspecified decline in
24 business that they speculate was connected to consumer reviews and Yelp’s use of an automated tool
25 to screen such reviews. For example, both Levitt and C&D contend that their “reputation” was
26 harmed “due to the posting of negative reviews” by consumers before they declined to purchase
27 advertising. SAC ¶¶ 54, 73 (emphasis added). Likewise, Levitt complains that various “positive”
28 reviews were removed from Yelp’s website – before and after declining to advertise on Yelp – and
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1 that this somehow contributed to “fewer customers” and a “decrease” in revenues. Id.
2 Yelp is squarely immune from claims like those asserted here that arise from the content of
3 user reviews posted on its website under the Communications Decency Act (“CDA”), 47 U.S.C. §
4 230(c), or from any editorial discretion (including the use of an automated review filter) that Yelp
5 exercises in publishing such reviews. See, e.g., Carafano v. Metrosplash, 339 F.3d 1119, 1123 (9th
6 Cir. 2003); Mazur v. eBay Inc., No. C 07-03967, 2008 WL 618988, at *9 (N.D. Cal. Mar. 4, 2008)
7 (Patel, J.) (“Screening a potential auction house . . . is akin to deciding whether to publish and
8 therefore eBay is immune under section 230 for its screening decisions.”).
9 Because the Non-Sponsor Plaintiffs fail to allege any causal connection between their
10 purported injuries and any unlawful conduct by Yelp, they cannot demonstrate Article III standing.
11 See Sanders, 672 F. Supp. 2d at 984 (dismissing complaint for lack of causal nexus between alleged
12 misconduct and injury); Two Jinn, 2010 WL 1329077, at *3 (complaint dismissed where “there is no
13 direct connection between Defendant’s activities and Plaintiff’s business”).
14 Sponsor Plaintiffs
15 Sponsor Plaintiffs also fail to allege any plausible nexus between their claims of “lost
16 business” or harm to their “reputation” and any “extortion” by Yelp. Like the Non-Sponsor
17 Plaintiffs, Chan and Paver Pro do not (and cannot) allege that any “decline” in customers or harm to
18 their “reputation” was the direct result of any extortion by Yelp. Instead, the Sponsor Plaintiffs rely
19 on conclusory allegations that they suffered injury “as a result of Yelp’s conduct” that are insufficient
20 to establish standing, see supra p. 14, and complaints about “negative reviews” or the “removal or
21 positive reviews” from which Yelp is immune as a matter of law. SAC ¶¶ 104-105; see supra.
22 In addition to speculative claims of “lost business,” Sponsor Plaintiffs make vague claims that
23 they “lost money in advertising costs” paid to Yelp to purchase advertising. See, e.g., SAC ¶¶
24 91, 104. But again, the Sponsor Plaintiffs fail to connect these payments to any threat or other
25 unlawful conduct by Yelp. Although Plaintiffs allege that they paid advertising fees “to avoid Yelp’s
26 manipulation of [their] reviews . . . in a manner that did not comply with the Yelp Review Terms,”
27 they utterly fail to allege that Yelp threatened (or even implied) that it would manipulate the reviews
28 of Sponsor Plaintiffs’ businesses “in a manner that did not comply with Yelp Review Terms” or
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1 otherwise, unless Plaintiffs purchased advertising. Id. ¶¶ 91, 104. Instead, Chan concedes that she
2 declined to purchase advertising after her initial conversations with Yelp, and that she later purchased
3 advertising after she contacted a Yelp salesperson who purportedly offered to “help her” in
4 unspecified ways if she advertised. Id. ¶ 81. And, Paver Pro admits that it never spoke with anyone
5 at Yelp about advertising at all. Id. ¶ 99.
6 Because the Sponsor Plaintiffs utterly fail to allege any plausible, causal nexus between their
7 payment of advertising fees and any threat of injury from Yelp, their claims must be dismissed for
8 lack of standing. See supra p. 12.
9 c. Plaintiffs Fail to Sufficiently Allege a Redressable Injury

10 Finally, Plaintiffs do not – and cannot – allege facts establishing that their purported injuries
11 are capable of being redressed by a favorable decision. At most, Plaintiffs’ claims of lost business
12 stem from the content of reviews posted by consumers who are not before this Court. No decision in
13 this case can (or should) bar public discussion about Plaintiffs’ services on Yelp or any other public
14 forum, and such speech is squarely protected by the First Amendment. See Gardner v. Martino, 563
15 F.3d 981, 992 (9th Cir. 2009) (statement by talk show host that plaintiff’s business “sucks” was
16 “nonactionable opinion protected by the First Amendment”); Browne v. Avvo, Inc., 525 F. Supp. 2d
17 1249, 1251 (W.D. Wash. 2007) (opinions expressed through defendant’s website, which ranked
18 attorneys by numerical score, were “absolutely protected by the First Amendment”).
19 Precisely to ensure such an open forum for discussion on the Internet, Plaintiffs also are
20 barred under CDA Section 230 from pursuing claims against Yelp arising from its Internet service or
21 its screening of reviews for publication through the use of an automated filter. See, e.g., Carafano,
22 339 F.3d at 1122-25 (affirming dismissal of claim for negligently posting third-party content because
23 claim was barred by CDA Section 230); Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1201-02
24 (N.D. Cal. 2009) (dismissing UCL claims because Google was immune under the CDA for
25 publishing third-party advertising content). Because Plaintiffs cannot allege that their injuries are
26 likely to be (or even can be) redressed by a favorable decision, they lack standing under Article III.
27 2. Plaintiffs Also Lack Standing Under the UCL
28 Plaintiffs also have failed to allege standing under the UCL. Following the enactment of
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1 Proposition 64, a “private person has standing to sue [under the UCL] only if he or she has suffered
2 injury in fact and has lost money or property as a result of such unfair competition.” Mervyn’s, 39
3 Cal. 4th at 227; Rubio v. Capital One Bank, 613 F.3d 1195, 1203-4 (9th Cir. 2010) (citing Birdsong
4 v. Apple, Inc., 590 F.3d 955, 960 (9th Cir. 2009) (“to plead a UCL claim, the plaintiffs must show,
5 consistent with Article III, that they suffered a distinct and palpable injury as a result of the alleged
6 unlawful or unfair conduct”)).
7 Non-Sponsor Plaintiffs cannot satisfy the “lost money or property” element because they did
8 not purchase advertising and fail to allege, as required, an outlay of funds, tied to any business
9 dealings with Yelp. Clayworth v. Pfizer, Inc., 49 Cal. 4th 758, 788 (2010) (“intent of this change was
10 to confine standing to those actually injured by a defendant’s business practices and to curtail the
11 prior practice of filing suits on behalf of ‘clients who have not used the defendant’s product or service
12 . . . or had any other business dealing with the defendant’”)
13 Plaintiffs’ vague claims of “loss of sales, revenues and/or assets” and injury to “business
14 reputation” (see supra pp. 12-13) also do not constitute “lost money or property” for purposes of
15 UCL standing. See, e.g., Missing Link, Inc. v. Ebay, Inc., 2008 WL 1994886, at *8 (N.D. Cal. May 5,
16 2008) (“more than an expectation of profit” is required to constitute an injury in fact for the purpose
17 of standing under § 17200); United States v. Sequel Contractors, Inc., 402 F. Supp. 2d 1142, 1156
18 (C.D. Cal. 2005) (decline in the value of a business is not recoverable under UCL).
19 Sponsor Plaintiffs also fail to allege that they did not receive the benefits of advertising that
20 they contracted to receive from Yelp, and thus, their payment of advertising fees cannot constitute
21 “money or property” sufficient for UCL standing. Birdsong, 590 F.3d at 961 (UCL claim denied for
22 lack of standing when “not alleged that [plaintiffs] were deprived of an agreed-upon benefit in
23 purchasing their iPods”).
24 C. Plaintiffs Also Fail To State A Claim Under The UCL

25 Plaintiffs also fail to state a valid claim under the UCL, which requires a showing that Yelp
26 engaged in an “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code §
27 17200; Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 837 (2006). Plaintiffs have
28 withdrawn their earlier claims that Yelp engaged in “deceptive” sales practices and now base their
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1 sole UCL claim on unsupported allegations of “extortion” and “attempted extortion.” See, e.g., SAC
2 ¶¶ 112, 121, 125. Because the Second Amended Complaint is devoid of facts that give rise to a
3 plausible inference that Yelp engaged in conduct that is “unlawful” or “unfair” within the meaning of
4 the UCL, Plaintiffs’ UCL claim must be dismissed.
5 1. Plaintiffs Have Not Alleged “Unlawful” Conduct

6 The “unlawful” prong of the UCL “borrows violations of other laws . . . and makes those
7 unlawful practices actionable under the UCL.” In re Actimmune Mktg. Litig., No. C 08-02376 MHP,
8 2009 WL 3740648, at *15 (N.D. Cal. Nov. 6, 2009). “Thus, a violation of another law is a predicate
9 for stating a cause of action under the UCL’s unlawful prong.” Id.
10 Plaintiffs base their UCL claims on a contention that Yelp “attempted to and/or did in fact
11 commit extortion” as defined in Cal. Penal Code §§ 518, 519, 523 , 524 and the federal Hobbs Act
12 (18 U.S.C. § 1951). SAC ¶ 121. Because Plaintiffs fall well short of the requirements to plead
13 extortion or attempted extortion, their claim under the UCL’s “unlawful” prong must be dismissed.
14 See, e.g., Actimmune, 2009 WL 3740648, at *15 (dismissing unlawful claims for failure to
15 sufficiently allege violations of the predicate regulations under the “unlawful” prong of the UCL).
16 a. Plaintiffs Fail to Allege That Yelp Engaged in a Threat of Unlawful Injury

or Wrongful Use of Fear
17
18 Most fundamentally, Plaintiffs do not (and cannot) point to a single instance of Yelp engaging
19 in any threat of unlawful injury or wrongful use of fear, as required to demonstrate extortion or
20 attempted extortion.
21 An unlawful threat is an essential element of extortion and attempted extortion. See Mitchell
22 v. Sharon, 59 F. 980, 982 (9th Cir. 1894); People v. Sales, 116 Cal. App. 4th 741, 751 (2004)
23 (reversing attempted extortion conviction because “extortion requires a threat”). Specifically,
24 extortion under California law consists of “obtaining of property from another, with his consent . . .
25 induced by a wrongful use of force or fear,” while attempted extortion requires an attempt to extort
26
27
28
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1 money or property “by means of any threat.”7 Cal. Penal Code §§ 518 (extortion) & 524 (attempted
2 extortion) (emphasis added). Likewise, the Hobbs Act defines “extortion” as “the obtaining of
3 property from another, with his consent, induced by wrongful use of actual or threatened force,
4 violence, or fear . . . .” 18 U.S.C. § 1951(b)(2) (emphasis added).
5 Because Plaintiffs do not allege the use of any force or violence, they must allege plausible
6 facts that Yelp engaged in the wrongful use of fear to plead extortion or attempted extortion. In turn,
7 the California Penal Code narrowly specifies that “fear, such as will constitute extortion” consists
8 solely of fear that is induced by “a threat”: (1) “to do an unlawful injury to the person or property of
9 the individual threatened or of a third person”; (2) “to accuse the individual threatened . . . of any
10 crime”; (3) “to expose . . . any deformity, disgrace or crime”; or (4) “to expose, any secret affecting
11 him or them.” Cal. Penal Code § 519 (emphasis added); see also Cal. Penal Code § 524
12 (incorporating threats defined in § 519 into crime of attempted extortion). Significantly, “only threats
13 that fall within one of these four categories of section 519 will support a charge of extortion.” People
14 v. Umana, 138 Cal. App. 4th 625, 639 (2006).
15 Plaintiffs do not allege any threat that falls within the scope of California Penal Code Section
16 519 or otherwise could support an extortion claim. They do not allege that Yelp threatened to accuse
17 them of any crime, or to expose any secret, deformity or disgrace. Compare Cal. Penal Code
18 § 519(2)-(4). And Plaintiffs do not point to a single instance where Yelp threatened, directly or
19 indirectly, to engage in an unlawful injury to Plaintiffs’ property or person.
20 Likewise, Plaintiffs do not allege that Yelp engaged in the wrongful use of fear, as required to
21 establish actual or attempted extortion under the Hobbs Act. Petrochem Insulation, Inc. v. N. Cal. &
22 N. Nev. Pipe Trades Counsel, No. C-90-3628 EFL, 1991 WL 158701, at *3 (N.D. Cal. Apr. 30, 1991)
23 (definition of “extortion” under the Hobbs Act and under California law are “substantially the
24 same”); see also Sosa v. DIRECTV, Inc., 437 F.3d 923, 939 (9th Cir. 2006) (affirming dismissal of
25 Hobbs Act claims based on threats to sue unless plaintiffs paid money to defendants, because
26
27 7 Although Plaintiffs cite Cal. Penal Code § 523 as a predicate statute for its UCL claim, this
provision requires a “letter or other writing” conveying a threat. Because Plaintiffs fail to allege any
28 such letter or writing from Yelp in the SAC, this provision cannot support Plaintiffs’ UCL claim.
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Crutcher LLP 19
1 “extortion [under the Hobbs Act] requires more than fear . . . [t]he use of fear must be ‘wrongful’”);
2 Rothman v. Vedder Park Mgmt., 912 F.2d 315, 318 (9th Cir. 1990) (affirming dismissal of extortion
3 claims under Hobbs Act and California law because threats to raise rent and stop paying utilities did
4 not constitute a “wrongful use . . . of fear”).
5 Instead, the Plaintiffs allege only that Yelp offered them various benefits if they advertised
6 with Yelp – offers that, in most cases, Plaintiffs admittedly declined. For example, Sponsor Plaintiff
7 Chan alleges that a Yelp sales representative “offer[ed] her lots of benefits” and later offered to “help
8 her if she signed up for advertising services.” SAC ¶¶ 77, 81. Likewise, C&D concedes that it
9 “declined the offer” of various purported advertising benefits from Yelp. Id. ¶¶ 63-64; see also id. ¶¶
10 45-46 (asserting that Levitt declined to purchase advertising after he was informed that his business
11 “would have an even greater number of Yelp page views” if he advertised).
12 Yelp’s alleged offers of various advertising benefits cannot support a claim for extortion as a
13 matter of law because they do not contain any threat of “unlawful injury” or “wrongful use of fear.”
14 Thus, in Sigmond v. Brown, 645 F. Supp. 243, 246 (C.D. Cal. 1986), defendant’s offer to provide a
15 chiropractor with more favorable reviews by the chiropractor peer review committee in exchange for
16 client referrals was not an extortionist threat under Penal Code § 518, but merely an offer. See also
17 Wolk v. Green, 516 F. Supp. 2d 1121, 1129-30 (N.D. Cal. 2007) (“If extortion encompassed [a threat
18 to ‘cease representation of a plaintiff unless more funds were provided’], then virtually every
19 business dispute where one party demands more money for continued service would also constitute
20 extortion”); People v. Anderson, 75 Cal. App. 365, 374-75 (1925), disapproved of on other grounds
21 by In re Wright, 65 Cal. 2d 650 (1967) (no unlawful threat – and hence no extortion – where
22 defendant offered to drop criminal charges in exchange for payment).
23 b. Non-Sponsors Plaintiffs Also Fail to Allege That They Provided Property

to Yelp
24
25 In addition, the Non-Sponsor Plaintiffs cannot demonstrate extortion because, by their
26 own admission, they refused to purchase advertising or provide any other property to Yelp –
27 an essential element of an extortion claim. See SAC ¶¶ 46, 64; see, e.g., Arista Records v.
28 Sanchez, No. CV 05-07046, 2006 WL 5908359, at *2 (C.D. Cal. Mar. 1, 2006) (dismissing
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1 extortion counterclaim for failure to allege that any property was taken). And, as
2 demonstrated above, the Non-Sponsor Plaintiffs also do not plead the requirements for a
3 claim of attempted extortion because they fail to allege the existence of a threat of injury or
4 wrongful use of fear. See, supra, pp. 18-20.
5 c. Plaintiffs Do Not Allege That Fear Was the Controlling Cause of Any
Decision To Advertise
6
7 The Sponsor Plaintiffs also have not alleged, as they must, any plausible facts
8 demonstrating that “fear” induced by a threat of unlawful injury was the “controlling cause”
9 of their decisions to purchase advertising. Chan v. Lund, 188 Cal. App. 4th 1159, 1171
10 (2010) (no extortion because no evidence establishing that “the wrongful use of force or fear
11 [was] the operating or controlling cause compelling the victim's consent to surrender the thing
12 to the extortionist”); People v. Goodman, 159 Cal. App. 2d 54, 61 (1958) (same). Although
13 Chan now contends that she “felt compelled to purchase advertising so that Yelp would
14 reinstate [certain] positive reviews” to her business page, this self-serving allegation fails to
15 demonstrate that “the controlling cause” of Chan’s decision to purchase advertising was
16 “fear” due to a threat of unlawful injury. SAC ¶¶ 79-80, 82-83. Indeed, Chan has not alleged
17 that Yelp threatened any harm to her property if she did not purchase advertising. And, Paver
18 Pro does not allege that “fear” played any role in its decision to purchase advertising from
19 Yelp – much less that it was the “controlling cause” of that decision.
20 d. Plaintiffs Fail to Allege That Any Purported “Fear” Was Reasonable

21 Plaintiffs also fail to allege facts that create a plausible inference that any alleged “fear” that
22 Yelp would injure their business unless they advertised was reasonable, as required. In addition to
23 requiring the wrongful use of fear, the Hobbs Act requires as an additional element that the victim’s
24 fear be reasonable in order to be actionable. See, e.g., United States v. Billingsley, 474 F.2d 63, 66
25 (6th Cir. 1973) (“reasonableness of actual or anticipated fear is a vital element in [extortion] cases”)
26 (citing Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)); see also United States v. Marsh, 26
27 F.3d 1496, 1500 (9th Cir. 1994) (overturning verdict of “economic extortion . . . because the evidence
28 failed to establish that Doe possessed a reasonable fear of economic harm”).
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1 Here, Plaintiffs do not allege that any “fear” they supposedly experienced was reasonable,
2 particularly given the absence of any threat. Although Chan asserts that she “feared that if she did
3 not pay for advertising, the posting of negative reviews would continue,” she fails to allege any
4 reasonable basis for such purported “fear” – including any actions by Yelp that remotely suggested
5 she would continue to receive negative reviews from consumers unless she advertised. SAC ¶¶ 83.
6 And, the remaining Plaintiffs fail to allege that they experienced “fear” at all.
7 2. Plaintiffs Have Not Alleged “Unfair” Conduct

8 Plaintiffs also fail to allege that Yelp engaged in any “unfair” conduct within the meaning of
9 the UCL, and instead, rely on a single, boilerplate claim that Yelp’s conduct somehow is “unfair” and
10 “violates public policy.” SAC ¶¶ 125-126.
11 Although courts are divided as to what constitutes an “unfair” activity under the UCL,
12 Plaintiffs make no attempt to plead facts that demonstrate “unfair” conduct under any definition.
13 Indeed, Plaintiffs have pled no facts that plausibly suggest that Yelp’s actions “offend[ed] an
14 established public policy [or that they are] immoral, unethical, oppressive, unscrupulous or
15 substantially injurious to consumers.” McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir.
16 2008); Buena Vista, LLC v. New Res. Bank, 2010 WL 3448561, at *6 (N.D. Cal. Aug. 31, 2010). In
17 fact, Plaintiffs identify no conduct at all beyond that alleged to be “unlawful,” which as discussed
18 above, are insufficient to support their UCL claim. See also Buena Vista, 2010 WL 3448561, at *6
19 (allegations that defendants “worked in concert to take advantage of [plaintiffs’] precarious financial
20 situation, bilk [plaintiffs] of thousands of dollars for Defendants’ own profit, and foreclose on
21 [property] . . . do not support a claim that Defendants’ actions” are unfair under the UCL); Leong v.
22 Square Enix of Am. Holdings, Inc., 2010 WL 1641364, at *7 (C.D. Cal. Apr. 20, 2010) (plaintiff’s
23 allegations did not establish “unfair” conduct, where “Plaintiffs fail to provide any facts that suggest
24 they were in any way coerced or forced to spend any money at all by Defendants”).
25 Nor are Plaintiff’s allegations of unfairness “tethered to some legislatively declared policy or
26 proof of some actual or threatened impact on competition” in Yelp’s industry, as would be required to
27 establish “unfairness” under the definition established in Cel-Tech Commc’ns, Inc. v. Los Angeles
28 Cellular Tel. Co., 20 Cal. 4th 163, 185-87 (1999). See, e.g., Baba v. Hewlett-Packard Co., No. C 09-
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Crutcher LLP 22
1 05946, 2010 WL 2486353, at *7-8 (N.D. Cal. June 16, 2010) (consumer UCL claims asserting
2 “unfair” practices must be “tethered to some legislatively declared policy”).
3 Because Plaintiffs have provided no details or facts indicating how Yelp’s conduct is unfair
4 within the meaning of the UCL, their claim under the UCL “unfairness” prong should be dismissed.
5 See, e.g., Smith & Hawken, Ltd. v. Gardendance, Inc., No. C04-1664, 2004 WL 2496163, at *5 (N.D.
6 Cal. Nov. 5, 2004) (dismissing UCL claim, finding that “[a plaintiff] alleging unfair business
7 practices under the unfair competition statutes must state with reasonable particularity the facts
8 supporting the statutory elements of the violation”).
9 D. Because Plaintiffs Do Not Have Standing and Fail to State a Sufficient Claim, the Class
Allegations Also Must Be Dismissed
10
11 It is well-settled that claims asserted on behalf of a putative class cannot go forward where, as
12 here, the named plaintiffs lack standing or fail to state a legally sufficient claim for relief. O’Shea v.
13 Littleton, 414 U.S. 488, 494-95 (1974). Because Plaintiffs’ UCL claim fails for the reasons addressed
14 in detail above, this also requires dismissal of this claim asserted on behalf of the proposed class.
15 Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022-24 (9th Cir. 2003).
16 E. The Second Amended Complaint Should Be Dismissed Without Leave to Amend

17 The SAC is the fifth complaint that has been filed in this action (the third by lead plaintiff’s
18 counsel), and this is the third motion Yelp has prepared to address the deficiencies of these pleadings.
19 Because Plaintiffs have had repeated opportunities to plead a viable cause of action, but have
20 consistently failed to do so, the Second Amended Complaint should be dismissed with prejudice.
21 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996) (“discretion to
22 deny leave to amend is particularly broad where plaintiff has previously amended the complaint.”).
23 F. Plaintiffs Cannot Plead Legally Sufficient Class Allegations
24 Finally, this Court also should dismiss and/or strike Plaintiffs’ purported class action
25 allegations under Rules 12(b)(6), 12(f) and/or 23. Where plaintiffs have failed to allege an
26 ascertainable class and it is apparent from the face of the pleading that individual issues predominate,
27 this Court has dismissed class allegations at the pleading stage. See, e.g., Stearns v. Select Comfort
28 Retail Corp., No. 08-cv-02746, 2009 WL 4723366, at *15-16 (N.D. Cal. Dec. 4, 2009) (dismissing
Gibson, Dunn &
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1 class allegations that involved elements “individual to each purported class member, such as . . .
2 notice . . . and reliance”); Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1166-67 (N.D. Cal. 2008)
3 (striking class allegations because “proposed class cannot, as alleged, be presently ascertained”).
4 Plaintiffs’ class allegations are deficient for three separate reasons. First, Plaintiffs purport to
5 represent a class that would include every business and person “who [was] in contact with Yelp
6 regarding the option to advertise,” irrespective of whether Yelp made any unlawful threat of injury to
7 such class members, or whether the class members reasonably felt fear or were compelled to
8 purchase advertising as a result of any such threat. SAC ¶ 108(a)-(b). Likewise, the class
9 encompasses all businesses that allegedly were “subject to the manipulation of reviews,” whether or
10 not the businesses were harmed by this purported “manipulation” and including advertisers who
11 according to Plaintiffs, benefited from the manipulation of reviews. Id. Accordingly, “the class is
12 not ascertainable because it includes members who have not experienced any problems” due to
13 unlawful conduct, and who cannot demonstrate the elements of the claims asserted here. Hovsepian
14 v. Apple, Inc., No. 08-5788, 2009 WL 5069144, at *6 (N.D. Cal. Dec. 17, 2009) (striking class action
15 allegations because proposed class included individuals with no claims against defendants).
16 Second, the named Plaintiffs do not – and cannot – satisfy the typicality requirement under
17 Rule 23 because their disparate, individualized and contradictory claims are not typical of the
18 proposed class, and are materially inconsistent even within the same subclass. For example:
19 Purported Threats: Levitt contends that a Yelp “user support” employee accurately
informed him that “she could not assist him in removing [a negative] review,” whereas
20
C&D complains that Yelp salespeople “promised to manipulate” its business page if it
21 purchased advertising. Compare SAC ¶ 44 with ¶ 62.
22 Causation: Paver Pro purchased advertising off Yelp’s website without ever speaking
with Yelp, and Chan concedes that she initially “declined to purchase Yelp advertising” in
23 response to an offer from Yelp, but later changed her mind after speaking to a Yelp sales
representative. Compare id. ¶¶ 77-83 with ¶¶ 95-100.
24
25 Alleged Injury: Paver Pro alleges that “many” positive reviews were reinstated and that
its overall star rating was high after it purchased advertising, while Chan admits that her
26 star rating continued to decline, even after she purchased advertising. Compare id. ¶¶ 83-
84 with ¶¶ 100-101.
27
28
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1 Given the enormous variation among Plaintiffs’ allegations within the same subclass, they cannot
2 possibly establish that their claims are typical of any that could be asserted by hundreds of thousands
3 of individual businesses, each of which made independent decisions to advertise on Yelp (or not) in
4 response to different communications, and received distinct reviews and ratings (that were impacted
5 differently by Yelp’s automated review filter) before and after their decisions to purchase advertising
6 on Yelp (or not). Dodd-Owens v. Kyphon, Inc., No. C06-3988, 2008 WL 410241, at *1 (N.D. Cal.
7 Feb. 12, 2008) (“to proceed with their class action Plaintiffs [at] the very least must allege some
8 specific commonality and typicality among the members”).
9 Finally, it is apparent even at the pleading stage that the proposed class is not administratively
10 feasible and would require a highly individualized inquiry into the separate statements (if any) made
11 to each class member, the state of mind and response of each member, and whether millions of third-
12 party reviews were removed or reinstated in a manner consistent with “Yelp’s representations
13 regarding its review terms” – an inquiry that would quickly overwhelm the resources of the parties
14 and this Court. Parsing the confusing and varied allegations even of the named Plaintiffs is
15 challenging. See supra. Attempting to replicate this effort for hundreds of thousands of individual
16 businesses with equally individual circumstances would be impossible. Courts repeatedly dismiss
17 class allegations at the pleading stage when, as here, they hinge on inherently disparate and
18 individualized issues of fact that are not suitable for resolution on a class-wide basis. See, e.g.,
19 Stearns, 2009 WL 4723366, at *15-16 (dismissing class allegations because Plaintiffs’ warranty
20 claims involved elements “individual to each purported class member, such as the provision of
21 notice, an opportunity to cure, and reliance”); Vinole v. Countrywide Home Loans, Inc., 246 F.R.D.
22 637, 641-42 (S.D. Cal. 2007) (dismissing class allegations because plaintiffs failed to “allege [a]
23 common scheme or policy that would diminish the need for individual inquiry”).
24 V. CONCLUSION
25 For each of these reasons, the Second Amended Complaint should be dismissed in its entirety
26 with prejudice, and the class allegations should be stricken.
27 DATED: December 17, 2010 GIBSON, DUNN & CRUTCHER LLP
28 By: /s/ Ashlie Beringer

Ashlie Beringer
Gibson, Dunn &
Crutcher LLP 25

Levitt v. Yelp Motion To Dismiss

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Levitt v. Yelp Motion To Dismiss

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Case3:10-cv-01321-MHP Document59 Filed12/17/10 Page1 of 32

1 GIBSON, DUNN & CRUTCHER LLP

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YELP’S MOTION TO DISMISS AND TO STRIKE CV 10-01321 MHP; CV 10-02351 MHP

21 B. Plaintiffs Lack Standing To Pursue Their Claims ...................................................... 12

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10 E. The Second Amended Complaint Should Be Dismissed Without Leave

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1 NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED CLASS ACTION

3 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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22 harm that are insufficient to demonstrate standing here.

28 cannot constitute extortion as a matter of law.

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8 class definition is hopelessly overbroad and encompasses hundreds of thousands of businesses,

11 businesses – or to determine whether millions of consumer reviews were properly removed or

15 III. ALLEGATIONS IN THE COMPLAINT1

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2 Beringer (“Beringer Decl.”) (referenced in ¶¶ 2-3, 5 of the SAC).2

3 1. Yelp’s Automated Review Filter

14 2. Yelp’s Advertising Program

19 appearing on their business pages. Id.

20 B. Named Plaintiffs’ Allegations

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4 he received an offer to purchase advertising on Yelp.

23 reviews, months before declining to advertise. Id. ¶¶ 43-45, 49.

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3 b. Cats & Dogs

27 [Footnote continued from previous page]

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2 in favor of advertisers. Id. ¶¶ 83-84.

17 contributed to this belief. Id. ¶¶ 85-86.

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1 D. The Second Amended Complaint

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4 B. Plaintiffs Lack Standing To Pursue Their Claims

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6 ¶ 104 (alleging “Paver Pro also experienced a decline in business”).

15 This alleged “injury” is mere conjecture, and is certainly not concrete or

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1 b. Plaintiffs Have Not Alleged a Non-Speculative Causal Connection

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13 direct connection between Defendant’s activities and Plaintiff’s business”).

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5 at Yelp about advertising at all. Id. ¶ 99.

8 lack of standing. See supra p. 12.

9 c. Plaintiffs Fail to Sufficiently Allege a Redressable Injury

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6 unlawful or unfair conduct”)).

12 . . . or had any other business dealing with the defendant’”)

23 purchasing their iPods”).

24 C. Plaintiffs Also Fail To State A Claim Under The UCL

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4 the UCL, Plaintiffs’ UCL claim must be dismissed.

5 1. Plaintiffs Have Not Alleged “Unlawful” Conduct

16 a. Plaintiffs Fail to Allege That Yelp Engaged in a Threat of Unlawful Injury