Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 1 of 69 PageID #:3462
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` UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`T.K., THROUGH HER MOTHER
`SHERRI LESHORE, and A.S.,
`THROUGH HER MOTHER, LAURA
`LOPEZ, individually and on behalf
`of all others similarly situated,
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`Plaintiffs,
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`v.
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`Case No. 19-CV-7915
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`Judge John Robert Blakey
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`BYTEDANCE TECHNOLOGY CO.,
`LTD., MUSICAL.LY INC. MUSICAL.LY
`THE CAYMAN ISLANDS
`CORPORATION,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Plaintiffs T.K., through her mother Sherri Leshore, and A.S., through her
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`mother Laura Lopez, move for final approval of a proposed class action settlement
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`(the “Proposed Settlement Agreement”), [81], and attorneys’ fees, costs, and service
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`awards, [69]. Separately, Mark S., a member of the Proposed Settlement Class,
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`objects to the settlement proposal. [24]; [74]. Mark S. also moves for attorneys’ fees
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`and a service award. [71]. For the reasons explained below, this Court grants
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`Plaintiffs’ motion for final approval, [81], and, subject to the modifications described
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`herein, grants Plaintiffs’ motion for attorneys’ fees, costs, and service awards, [69].
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`This Court denies Mark S.’ motion for attorneys’ fees and service award, [71], and
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`denies Plaintiffs’ motion for sanctions, [75].
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`1
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`Background1
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`On May 12, 2020, Plaintiffs filed their initial motion [28] for final approval of
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`I.
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`the Proposed Settlement, a settlement this Court had preliminarily approved in
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`December 2019, [13]. In March 2020, after finding that the Proposed Settlement
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`Class had not received adequate notice of the settlement within the meaning of
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`Federal Rule of Civil Procedure 23, this Court denied Plaintiffs’ motion for final
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`approval, along with Plaintiffs’ related motion for attorneys’ fees, costs, and service
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`awards, [29], without prejudice. [62]. This Court required that Plaintiffs provide
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`additional notice to the class before filing any renewed motion for final approval or
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`renewed motion for fees, costs, and service awards. Id. In the same opinion and
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`order, this Court denied Mark S.’ motion to intervene. Id.
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`The following month, the parties reached an agreement regarding potentially
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`overlapping claims in this action and in In re TikTok, Inc., Consumer Privacy
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`Litigation, No. 20-CV-4699, MDL No. 2948 (N.D. Ill.) (the “TikTok MDL”), whereby
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`Defendants confirmed that they would not seek to enforce their rights under the
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`Proposed Settlement Agreement’s release clause against members of the Proposed
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`Settlement Class in the event class members also sought recovery in the TikTok
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`MDL. [68]. Given that agreement, this Court denied Mark S.’ motion to enforce this
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`Court’s preliminary injunction and for reassignment of the related TikTok MDL [51].
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`1 This Court assumes familiarity with the factual background explained in its Memorandum Opinion
`and Order denying Plaintiff's first motion for class certification. [62]. This Court incorporates by
`reference the facts and findings explained therein.
`2
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 3 of 69 PageID #:3464
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`In accordance with this Court’s March 2020 order, Plaintiffs launched their
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`Supplemental Notice Program (“SNP”) on May 5, 2021. [81-2] at 2. During the SNP,
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`Angeion Group LLC, the settlement administrator, received an additional 89,316
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`claim forms, bringing the total number of claim forms received to 193,928. Id. at 4.
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`The launch of the SNP also triggered additional windows for members of the Proposed
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`Settlement Class to submit objections to the Proposed Settlement or opt-out of the
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`class entirely. Id. at 4–5. During the SNP no additional class members submitted
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`objections or requested exclusion. Id.2 The costs of the SNP amounted to $30,035.
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`[81-1] ¶ 10.
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`Plaintiffs now move for final approval of the Proposed Settlement. [81].
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`Plaintiffs and Mark S. both move for attorneys’ fees and service awards, with
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`Plaintiffs also seeking costs. [69]; [71]. In connection with Mark S.’ motion for
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`attorneys’ fees and service award, Plaintiffs’ have filed a motion for sanctions
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`pursuant to Federal Rule of Civil Procedure 11. [75].
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`II.
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`Plaintiffs’ Motion for Final Approval
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`A.
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`Legal Standard
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`The class action suit constitutes “an ingenious device for economizing on the
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`expense of litigation and enabling small claims to be litigated,” Thorogood v. Sears,
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`Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008), one ideal for “situations . . . in which
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`the potential recovery is too slight to support individual suits, but injury is
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`substantial in the aggregate,” Beaton v. SpeedyPC Software, 907 F.3d 1018, 1030 (7th
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`2 Mark S. supplemented his objections to the Proposed Settlement during the SNP. [74].
`3
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`Cir. 2018) (quoting Murray v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir. 2006)).
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`But with these economies come a significant risk. Defendants, who have the goal of
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`“minimizing the sum of the damages they pay the class and the fees they pay the
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`class counsel,” may find themselves “willing to trade small damages for high
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`attorneys’ fees,” creating a “community of interest between class counsel, who control
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`the plaintiff’s side of the case, and the defendants.” Thorogood, 547 F.3d at 744–45.
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`And the class members may have stakes in the class action “too small to motivate
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`them to supervise the lawyers in an effort to make sure that the lawyers will act in
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`their best interests.” Id. at 744.
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`To help mitigate this risk, Rule 23 lays out requirements for settlement. Before
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`approving a proposed settlement, a court must first find that the settlement is “fair,
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`reasonable, and adequate.” In re Subway Footlong Sandwich Mktg. & Sales Practices
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`Litig., 869 F.3d 551, 555–56 (7th Cir. 2017) (quoting Fed. R. Civ. P. 23(e)(2)). This
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`Court’s assessment of the Proposed Settlement under Rule 23 follows.
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`B.
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`Analysis
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`1.
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`Certification of the Settlement Class
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`Federal Rule of Civil Procedure 23 states that the “claims, issues, or defenses
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`of a certified class may be settled, voluntarily dismissed, or compromised only with
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`the court’s approval.” Fed R. Civ. P. 23(e) (emphasis added). Accordingly, before
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`approving the Proposed Settlement, this Court must certify the Proposed Settlement
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`Class. This means that the Proposed Settlement Class has to satisfy Rule 23(a)’s
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`requirements of numerosity, commonality, typicality, and adequacy. The class at
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`4
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`issue here must also meet Rule 23(b)(3)’s requirements that “questions of law or fact
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`common to class members predominate over any questions affecting individual
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`members” and that “a class action is superior to other available methods for fairly
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`and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Finally, the
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`Seventh Circuit imposes an additional requirement: “the class must be ‘identifiable
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`as a class,’” meaning that the class definition “must be ‘definite enough that the class
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`can be ascertained.’” Greene v. Mizuho Bank, Ltd., 327 F.R.D. 190, 194 (N.D. Ill.
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`2018) (alteration in original) (quoting Oshana v. Coca-Cola Co., 472 F.3d 506, 513
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`(7th Cir. 2006)).
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`a.
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`Definiteness and Ascertainability
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`To satisfy the requirement of definiteness and ascertainability, a class must
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`“be defined clearly and based on objective criteria.” Mullins v. Direct Digital, LLC,
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`795 F.3d 654, 659 (7th Cir. 2015). Under the “weak” version of ascertainability
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`employed by the Seventh Circuit, courts worry most about “the adequacy of the class
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`definition itself,” not “whether, given an adequate class definition, it would be
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`difficult to identify particular members of the class.” Id. A class definition that
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`“identifies a particular group of individuals . . . harmed in a particular way . . . during
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`a specific period in particular areas” indicates a definite and ascertainable class. Id.
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`at 660–61.
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`Here, the Proposed Settlement defines the class as “all persons residing in the
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`United States who registered for or used the Musical/.ly and/or TikTok software
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`application prior to the Effective Date when under the age of 13 and their parents
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`5
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`and/or legal guardians.”3 [5-2] at 22. This definition “is as objective as they come.”
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`Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408, 417–18 (N.D. Ill. 2012)
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`(finding that class consisting of “individuals holding an Abercrombie promotional gift
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`card whose value was voided on or around January 30, 2010” met Rule 23’s
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`ascertainability requirement).
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`Although Plaintiffs note the impossibility of identifying all members of the
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`Proposed Settlement Class, e.g., [81] at 28, this fact does not destroy definiteness and
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`ascertainability. Rule 23 does not require the identification of “absent class members’
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`actual identities.” Boundas, 280 F.R.D. at 417. Instead, it suffices “that the class be
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`ascertainable.” Id. (emphasis in original). A class that requires its members to
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`identify themselves through affidavits or claim forms, like the one used here, see [28-
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`2] at 4, 28, meets that standard, see Boundas, 280 F.R.D. at 417–18 (finding class
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`ascertainable where the only way to identify certain class members was through the
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`submission of affidavits in which they claimed membership). This Court finds that
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`the class definition meets the requirements of definiteness and ascertainability.
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`b.
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`Rule 23(a) Requirements
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`i.
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`Numerosity
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`Rule 23(a)(1) permits class certification only if “the class is so numerous that
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`joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The rule contains
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`no magic number that will satisfy this requirement, but the Seventh Circuit has held
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`3 The “Effective Date” represents the first date after either: (1) the time to appeal an order by this
`Court approving the settlement has expired, with no appeal having been filed; or (2) an appellate court
`affirms an order by this Court approving the settlement and, in doing so, forecloses the possibility of
`further review. [5-1] at 22.
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`6
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`that a class of forty members constitutes “a sufficiently large group” to satisfy
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`numerosity “where the individual members of the class are widely scattered and their
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`holdings are generally too small to warrant undertaking individual actions.”
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`Barnes v. Air Line Pilots Ass’n, Int’l, 310 F.R.D. 551, 557 (N.D. Ill. 2015) (quoting
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`Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969)).
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`While Plaintiffs may not “rely on ‘mere speculation’ or ‘conclusory allegations’” to
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`show numerosity, Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008) (quoting
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`Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990)), they need not
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`“plead or prove the exact number of class members,” Barnes, 310 F.R.D. at 557.
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`Courts may also rely on “common sense assumptions” when determining numerosity.
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`Phipps v. Sheriff of Cook Cty., 249 F.R.D. 298, 300 (N.D. Ill. 2008).
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`Here, Plaintiffs estimate that the Proposed Settlement class contains
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`approximately six million members. [81] at 3. Plaintiffs base this estimate upon the
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`“limited information . . . provided to Class Counsel” by Defendants. Id.; see also [5-1]
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`at 5.4 This reasonable estimate satisfies numerosity. As other courts have noted,
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`TikTok has over 100 million users in the United States alone. See, e.g.,
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`Marland v. Trump, No. CV 20-4597, 2020 WL 5749928, at *2 (E.D. Pa. Sept. 26,
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`2020). Plaintiffs note the impossibility of determining the exact class size, [28] at 9,
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`4 Mark S. offers up his own estimate as to the size of the class, but this Court declines to adopt his
`figures. Whereas the Plaintiffs’ estimate draws from TikTok’s own records, [5-1] at 5, Mark S.’ estimate
`extrapolates from data collected by third-parties and makes unsupported assumptions about use of
`the TikTok app across age groups, [74] at 4–5. For example, Mark S.’ model would require this Court
`to assume that, out of his projected universe of 32.5 million TikTok users aged ten to nineteen, ten-
`year-olds make up exactly one-tenth, eleven-year-olds another tenth, and so on.
`7
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`but even a sliver of this user base would constitute a class large enough to satisfy the
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`numerosity requirement.5
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`ii.
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`Commonality
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`A court may certify a class only if “there are questions of law or fact common
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`to the class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs meet this requirement of commonality
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`by demonstrating that “class members ‘have suffered the same injury’” and that their
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`claims “depend upon a common contention . . . of such a nature that it is capable of
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`class-wide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011)
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`(quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Determination
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`of the “truth or falsity” of that common contention “will resolve an issue that is central
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`to the validity of each one of the claims in one stroke.” Id. at 350. Rule 23 requires
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`only one common question to satisfy commonality. Id. at 359.
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`Here, Plaintiffs allege that Defendants “surreptitiously tracked, collected, and
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`disclosed the personally identifiable information and/or viewing data of children
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`under the age of 13,” “without parental consent.” [1] ¶ 1. All members of the Proposed
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`Settlement Class share statutory claims based upon Defendants’ alleged violations of
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`federal and California privacy law. Id. ¶¶ 70–77, 86–103. The core issue of whether
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`Defendants collected and shared class members’ personally identifiable information
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`without parental consent remains central to these claims. Accordingly, the Proposed
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`Settlement Class meets the Rule 23(a)(2)’s commonality requirement.
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`5 Additionally, the settlement administrator notes receipt of 193,928 claims, of which it estimates
`168,607 “will be deemed valid and approved for payment.” [81-2] at 4. This further suggests that the
`class here satisfies numerosity.
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`8
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`iii.
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`Typicality
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`Rule 23 also requires that the “claims or defenses of the representative parties
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`are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). This
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`typicality requirement ensures “that the named representative’s claims have the
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`same essential characteristics of the class at large.” Oshana, 472 F.3d at 514 (quoting
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`Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 597 (7th Cir. 1993)). A named
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`plaintiff has a “typical” claim if it “arises from the same event or practice or course of
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`conduct that gives rise to the claims of other class members” and has “the same legal
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`theory” at its core. Lacy v. Cook Cty., 897 F.3d 847, 866 (7th Cir. 2018) (quoting
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`Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).
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`Plaintiffs have established typicality. Every member of the Proposed
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`Settlement Class, including the named Plaintiffs, alleges that Defendants “tracked,
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`collected, and disclosed” their “personally identifiable information and/or viewing
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`data” without parental consent while they were “under the age of 13,” or that they
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`are the parent or legal guardian of such a person. [1] ¶¶ 1–3, 18–37, 49–51; [5] at 6–
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`8. Because the class members’ claims all arise from the same course of conduct, and
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`the class members base their claims upon the same legal theories, this Court finds
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`that the Proposed Settlement Class meets the typicality requirement.
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`iv.
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`Adequacy
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`To determine adequacy, courts consider two factors: “(1) the adequacy of the
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`named plaintiffs as representatives of the proposed class’s myriad members, with
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`their differing and separate interests, and (2) the adequacy of the proposed class
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`9
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 10 of 69 PageID #:3471
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`counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011), as
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`modified (Sept. 22, 2011). A named plaintiff will not serve as an adequate
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`representative of a proposed class when her claims are “antagonistic or conflicting”
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`with those of the other class members, Rosario, 963 F.2d at 1018, or when she
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`remains “subject to a defense that would not defeat unnamed class members,”
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`Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011). The adequacy of class
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`counsel turns on counsel’s qualifications, experience, and ability to conduct the
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`litigation. See Kolinek v. Walgreen Co., 311 F.R.D. 483, 491 (N.D. Ill. 2015) (citing
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`Rosario, 963 F.2d at 1018).
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`The named plaintiffs here share the same injuries as other members of the
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`Proposed Settlement Class; each of the Plaintiffs contends either that Defendants
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`collected, used, and disclosed their personally identifiable information while they
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`were under the age of thirteen and without parental consent, or that they are the
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`parent or legal guardian of such a person. [1] ¶¶ 2–3. Nothing in the record suggests
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`that the named Plaintiffs have claims antagonistic to or conflicting with those of the
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`class as a whole, or that defenses not applicable to the claims of other class members
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`apply to those of the named Plaintiffs.
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`Nor does the record support a finding of inadequacy as to Class Counsel.
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`Plaintiffs present unrefuted evidence of their counsel’s expertise in litigating
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`consumer class actions, many of which involve privacy rights, [5-1] at 10–20, and
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`there has been no credible allegation of “a lack of integrity” on the part of Class
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`Counsel, or other allegation that would cast “serious doubt on their trustworthiness
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`10
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`as representatives of the class,” exists.6 Creative Montessori Learning Ctrs. v. Ashford
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`Gear LLC, 662 F.3d 913, 917 (7th Cir. 2011).
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`c.
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`Rule 23(b) Requirements
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`Here Plaintiffs seek to certify the Proposed Settlement Class under
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`Rule 23(b)(3), which requires that common questions predominate over individual
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`ones and that a class action suit constitutes a superior method for resolving the
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`dispute. Fed. R. Civ. P. 23(b)(3). This Court addresses each requirement in turn
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`below.
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`i.
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`Predominance
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`To certify a class under Rule 23(b)(3), a court must find that “questions of law
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`or fact common to class members predominate over any questions affecting only
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`individual members.” Fed. R. Civ. P. 23(b)(3). This assessment focuses upon the “‘the
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`legal or factual questions that qualify each class member’s case as a genuine
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`controversy,’ with the purpose being to determine whether a proposed class is
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`‘sufficiently
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`cohesive
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`to warrant
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`adjudication
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`by
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`representation.’”
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`Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 814 (7th Cir. 2012)
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`(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). Although the
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`predominance requirement resembles “Rule 23(a)’s requirements for typicality and
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`6 In his objections to the settlement, Mark S. asserts that the “current putative class representatives
`have failed to fairly and adequately protect the interests of the class,” [24] at 28, and that “class counsel
`and Defendants acted in concert” to reach a settlement that “serves to benefit class counsel and
`Defendants, without consideration” of the Proposed Settlement Class, id. at 39. As discussed in
`greater detail below, these allegations lack merit.
`11
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`commonality,” this criterion “is far more demanding.” Id. (quoting Amchem, 521 U.S.
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`at 623–24).
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`A class satisfies the predominance requirement when “common questions
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`represent a significant aspect” of a case and can be “resolved for all members” of a
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`“class in a single adjudication.” Id. (quoting 7AA Charles Alan Wright & Arthur R.
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`Miller, Federal Practice and Procedure § 1778 (3d ed. 2011)). A question “becomes a
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`common question” when the “same evidence will suffice for each member to make a
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`prima facie showing.” Id. at 815 (quoting Blades v. Monsanto Co., 400 F.3d 562, 566
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`(8th Cir. 2005)). If, on the other hand, “members of a proposed class will need to
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`present evidence that varies from member to member” in order to “make a prima facie
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`showing on a given question,” that question remains an individual one. Id. (quoting
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`Blades, 400 F.3d at 566).
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`But the case management and judicial economy concerns at the heart of the
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`predominance requirement matter less when plaintiffs seek to certify a class for
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`settlement purposes only. See Fed. R. Civ. P. 23(b) advisory committee’s note to 1966
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`amendment. In deciding whether to certify a settlement-only class, “a district court
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`need not inquire whether the case, if tried, would present intractable management
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`problems,” an inquiry typically necessary to satisfy Rule 23(b)(3)’s predominance
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`requirement. Douglas v. W. Union Co., 328 F.R.D. 204, 211 (N.D. Ill. 2018) (emphasis
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`added) (quoting Amchem, 521 U.S. at 620). Accordingly, “individualized issues” that
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`may bar certification for adjudication purposes will not necessarily bar certification
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`for settlement. See 2 William Rubenstein, Newberg on Class Actions § 4:63 (5th ed.
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`12
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 13 of 69 PageID #:3474
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`2021) (hereinafter Newberg). In fact, courts “regularly certify settlement classes that
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`might not have been certifiable for trial purposes because of manageability concerns.”
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`Id.
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`Plaintiffs’ Video Privacy Protection Act (“VPPA”) claims turn on whether
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`Defendants “knowingly disclose[d]” Plaintiffs’ “personally identifiable information”
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`without the “informed . . . consent” of their parents or legal guardians. 18 U.S.C.
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`§ 2710(b). From these claims, this Court identifies two key questions: (1) whether
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`Defendants collected and disclosed Plaintiffs’ personally identifiable information; and
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`(2) whether Defendants obtained consent from the parents of users under the age of
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`thirteen before doing so.
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`The question of whether Defendants obtained parental consent before
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`collecting personally identifiable information of under-thirteen users remains
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`common to all class members. Clearly, individualized issues would no doubt arise at
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`trial. For example, this Court would likely need “individual proof” that each Plaintiff
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`“actually uploaded or generated any information that was collected by TikTok” in
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`order to determine whether Defendants collected and disclosed Plaintiffs’ personally
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`identifiable information. [34] at 9. In the trial context, where case management
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`concerns help guide the predominance analysis, the need for such individualized proof
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`might weigh against certification. Not so here.
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`Nor do individualized damages questions bar certification here. Courts in
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`every circuit “have uniformly held that the 23(b)(3) predominance requirement is
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`satisfied despite the need to make individualized damage determinations.” 2 Newberg
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 14 of 69 PageID #:3475
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`§ 4:54; see also, e.g., Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th
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`
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`Cir. 2017) (noting district court’s error in ruling that “class certification was
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`precluded based on the need for damages to be assessed individually”). In the
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`settlement-class context, the need for individualized damages presents even less of a
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`problem because case management concerns have minimal import.
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`Similarly, differences between the federal and state law claims present in this
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`case do not prevent certification. Although class certification will sometimes “be
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`inappropriate” when recovery “depends on law that varies materially from state to
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`state,” the settlement context presents no need to “draw fine lines among state-law
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`theories of relief.” In re Mex. Money Transfer Litig., 267 F.3d 743, 746–47 (7th Cir.
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`2001). Thus, “the fact that . . . claims . . . implicate the laws of different states” will
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`not “defeat predominance for the purpose of certifying a settlement class.” In re
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`AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 974 (N.D.
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`Ill. 2011).
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`ii.
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`Superiority
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`
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`To certify a class under Rule 23(b)(3), this Court must also find that “a class
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`action is superior to other available methods for fairly and efficiently adjudicating
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`the controversy.” Fed. R. Civ. P. 23(b)(3). This occurs when a class action achieves
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`“economies of time, effort, and expense” and promotes “uniformity of decision as to
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`persons similarly situated, without sacrificing procedural fairness or bringing about
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`other undesirable results.” Driver v. AppleIllinois, LLC, 265 F.R.D. 293, 304 (N.D.
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`Ill. 2010) (quoting Amchem, 521 U.S. at 615). Where plaintiffs seek to certify a class
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 15 of 69 PageID #:3476
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`for settlement purposes only, trial-related concerns do not factor into a court’s
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`analysis of superiority. Amchem, 521 U.S. at 620.
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`
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`Here the superiority requirement is satisfied. The Proposed Settlement Class
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`represents millions of similar lawsuits. Because certification of the Proposed
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`Settlement Class and approval of the Proposed Settlement will resolve these claims
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`in one fell swoop, a class action constitutes the most efficient means of adjudicating
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`this controversy. The Proposed Settlement Class meets the requirements set out in
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`Rule 23(a) and Rule 23(b)(3), and this Court hereby certifies the class for the purpose
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`of settlement only.
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`2.
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`Notice
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`
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`Federal Rule of Civil Procedure 23 requires notice to a class when it is certified
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`under Rule 23(b)(3), when the parties reach a settlement, and when class counsel files
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`a fee petition. Fed. R. Civ. P. 23(c)(2)(B), (e), (h)(1). Separately, the Class Action
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`Fairness Act (“CAFA”) requires that certain government agencies receive notice of a
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`proposed class action settlement in a federal case. 28 U.S.C. § 1715. For the reasons
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`explained below, this Court finds that the parties provided adequate notice to the
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`Proposed Settlement Class.
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`a.
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`Rule 23
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`i.
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`Form of the Notice
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`
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`Under Rule 23(c)(2)(B), absent members of a “class proposed to be certified for
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`settlement under Rule 23(b)(3)” must receive “the best notice” of class certification
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`“that is practicable under the circumstances, including individual notice to all
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 16 of 69 PageID #:3477
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`members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B)
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`(notice of certification). Notice of the settlement itself or notice of a fee petition must
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`meet a similar standard. See Fed. R. Civ. P. 23(e)(1)(B) (requiring notice of settlement
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`“in a reasonable manner to all class members who would be bound by the proposal”);
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`Fed. R. Civ. P. 23(h)(1) (requiring notice of class counsel’s motion for attorneys’ fees
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`to “be . . . directed to class members in a reasonable manner”).
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`Of course, the members of the class must receive the best notice practicable
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`“not just because the Rules require it, but ‘as a matter of due process.’”
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`Kaufman v. Am. Exp. Travel Related Servs., Inc., 283 F.R.D. 404, 406 (N.D. Ill. 2012).
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`Rule 23 incorporates constitutional due process standards. See Shurland v. Bacci
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`Cafe & Pizzeria on Ogden, Inc., 271 F.R.D. 139, 145 (N.D. Ill. 2010). A “reasonable”
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`notice effort, one that satisfies both Rule 23 and constitutional due process
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`requirements, should reach at least seventy percent of the class. Fed. Jud. Ctr.,
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`Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide
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`at 1, 3 (2010).
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`
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`This Court previously approved the parties’ plan for a “single, combined notice
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`advising the class of the proposed certification and settlement of (b)(3) classes under
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`both Rule 23(e)(1) and (c)(2)(B),” [5] at 27, finding that the notice plan satisfied “all
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`requirements provided in Rule 23(c)(2)(A) and due process,” and finding it
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`“reasonable within the meaning of Rule 23(e)(1)(B),” [13] ¶ 8.7
`
`
`7 Settlement class actions typically employ combined notices encompassing notice of certification,
`settlement, and fees. 3 Newberg § 8:1.
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 17 of 69 PageID #:3478
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`Here, Angeion Group, LLC (“Angeion”), a class action and settlement
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`
`
`
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`administration firm, developed and implemented the initial notice program. [5-1] at
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`182. Plaintiffs attest that Defendants had “no way to directly contact or identify class
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`members.” [5] at 10. Accordingly, Angeion’s notice program relied primarily upon
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`internet advertisements. [5-1] at 186. Angeion constructed the target audience for
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`the advertisements (estimated at some 6,070,000 individuals) by using a media
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`database to identify key demographic information about the Proposed Settlement
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`Class. See id. at 186–87. Angeion then purchased internet advertisements designed
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`to reach at least 70% of the members of its target audience, “on average 3.0 times
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`each.” Id. at 186–88. By Angeion’s estimates, the more than 13 million digital banner
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`ad impressions delivered through its notice program reached approximately 72% of
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`its target audience “with an average frequency of 3.00 times each.” [81-2] at 2.
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`Additionally, after this Court’s prior order denying Plaintiffs initial motion for final
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`approval, Angeion’s SNP delivered over 6.6 million more impressions. Id. at 3.
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`
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`Both the initial notice program and the SNP also included a website linked to
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`the internet advertisements and a toll-free twenty-four-hour telephone hotline. Id.
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`at 3–4. The website contained “general information about this class action,” relevant
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`“Court documents,” “important dates and deadlines pertinent to [the] Settlement,” an
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`online claim form, and a contact page allowing individuals to send questions to a
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`dedicated email address. Id. at 3, 17. Similarly, the hotline provided callers with
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`essential information regarding the Proposed Settlement and responses to frequently
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`asked questions. Id. at 3–4. In connection with the SNP, Angeion updated both the
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`17
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`Case: 1:19-cv-07915 Document #: 94 Filed: 03/25/22 Page 18 of 69 PageID #:3479
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`settlement website and hotline to inform class members of the new settlement-related
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`deadlines. Id. As of August 12, 2021, Angeion reported over 435,635 visits to its
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`website from 233,851 unique visitors and 253 calls to its hotline, “totaling 836
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`minutes of call time.” Id.
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`
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`Having reviewed the form of notice, this Court finds the notice here to be the
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`best notice practicable under the circumstances.
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`ii.
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`Content of the notice
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`
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`Rule 23 not only controls the form of notice, but also its content. The combined
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`notice at issue here notified members of the Proposed Settlement Class of
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`certification, settlement, and attorneys’ fees. Because Rule 23 has different
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`requirements for notice of certification, settlement, and fees, this Court evaluates
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`each component of the combined notice in turn below.
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`A.
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`Certification and Settlement
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`
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`When plaintiffs send notice of class certification to a class “proposed to be
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`certified for purposes of settlement under Rule 23(b)(3),” that notice must “clearly
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`and concisely . . . in plain, easily understood language” state the following:
`
`(i)
`(ii)
`(iii)
`(iv)
`
`(v)
`
`(vi)
`(vii)
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`the nature of the action;
`the definition of the class certified;
`the class claims, issues, or defenses;
`that a class member may enter a