Case: 1:20-cv-04699 Document #: 161 Filed: 09/30/21 Page 1 of 33 PageID #:3084
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILILNOIS
`EASTERN DIVISION
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`IN RE: TIKTOK, INC.,
`CONSUMER PRIVACY
`LITIGATION
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`This Document Relates
`to All Cases
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`MDL No. 2948
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`Master Docket No. 20 C 4699
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`Judge John Z. Lee
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`Magistrate Judge Sunil R. Harjani
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`MEMORANDUM OPINION AND ORDER
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`In August 2018, the Beijing-based technology company ByteDance, Ltd.
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`(“ByteDance”) launched a social media platform and entertainment application
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`known today as TikTok (“TikTok” or “the App,” formerly known as Musical.ly) in the
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`United States and elsewhere abroad. The App, which allows users to share relatively
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`short homemade videos, quickly became one of the most ubiquitous in the world, and
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`boasts more than 800 million active users across the globe today.
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`Soon after the App exploded in popularity across the United States, however,
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`so too did concerns, and litigation, about its handling of user data. The lead plaintiffs
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`(“Plaintiffs”) in this multidistrict litigation (“MDL”) are United States residents who
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`allege that the subsidiaries of ByteDance—TikTok, Inc. (formerly Musical.ly, Inc.),
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`TikTok, Ltd., ByteDance Inc., and Beijing ByteDance Technology Co., Ltd.
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`(collectively, “Defendants”)—have been flouting U.S. privacy law by surreptitiously
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`harvesting and profiting from Plaintiffs’ private information, including their
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`biometric data, geolocation information, personally identifiable information, and
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`unpublished digital recordings, through the App. Following months of negotiations,
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`Plaintiffs have reached a settlement agreement with Defendants that would provide
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`$92 million in monetary relief and an array of injunctive relief for the putative
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`settlement class.
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`Before the Court is Plaintiffs’ motion for preliminary approval of the
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`settlement agreement, as well as various objections from putative class members.
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`For his part, Objector Dennis Litteken contends that the settlement agreement is not
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`fair, reasonable, and adequate, because it does not reflect the net expected value of
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`continued litigation to the class, and that the proposed notice plan is deficient.
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`Objector Mark S., as parent and legal guardian of his minor son, A.S., echoes these
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`contentions and adds that the settlement does not account for conflicts between minor
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`and non-minor class members and that the proposed release is overly broad vis-à-vis
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`the proposed settlement in a somewhat related case pending in this judicial district.
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`Finally, Objectors Brian Behnken and Joshua Dugas insist that the proposed opt-out
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`procedure is so onerous as to violate due process and the Federal Arbitration Act. For
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`the reasons set forth below, the objections are overruled, and Plaintiffs’ motion for
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`preliminary approval is granted.
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`I.
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`Background
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`A.
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`Procedural History
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`The first of the twenty-one putative class actions comprising this MDL was
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`filed in the Northern District of California in November 2019. See Hong v. ByteDance,
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`Inc., No. 19 C 7792 (N.D. Cal.) (Koh, J.). Led by one of the future members of
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`2
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`Plaintiffs’ Interim Co-Lead Counsel team, the parties in Hong first engaged in
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`mediation in April 2020. The mediation was facilitated by Layn R. Phillips, a former
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`United States District Judge for the Western District of Oklahoma and founder of
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`Phillips ADR Enterprise, an experienced and well-respected alternative dispute
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`resolution firm.
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`Beginning in late April 2020, the other twenty putative class actions were filed
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`in four separate federal districts: the Northern District of California, the Central
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`District of California, the Southern District of Illinois, and the Northern District of
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`Illinois. On May 15, 2020, counsel from one of these cases filed a motion with the
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`Judicial Panel on Multidistrict Litigation (“JPML”) to consolidate the then-nineteen
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`related actions and to transfer them to one district court for pretrial proceedings
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`pursuant to 28 U.S.C. § 1407. After some contentious litigation, the JPML selected
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`this district, and specifically this Court, on August 12, 2020. See 8/12/20 JPML
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`Transfer Order, MDL No. 2948, ECF No. 2.
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`The next day, on August 13, 2020, Defendant’s counsel and Plaintiffs’ counsel
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`from eleven of the MDL member cases participated in a second round of mediation
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`with Judge Phillips. Spearheaded by another future member of Plaintiffs’ Interim
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`Co-Lead Counsel team, this mediation had been months in the making. By that time,
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`extraordinary political pressure had mounted against TikTok’s U.S. operations,
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`culminating in an August 6, 2020, executive order by then-President Trump declaring
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`that TikTok presented “a national emergency” that “threaten[s] the national security,
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`3
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`foreign policy, and economy of the United States.” Exec. Order No. 13,942, 85 Fed.
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`Reg. 48,637 (Aug. 6, 2020).
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`The executive order gave ByteDance forty-five days to sell TikTok’s U.S.
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`operations to a U.S. company before the App would be banned in this country,
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`although the White House later extended the deadline. See Proclamation No. 10,061,
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`85 Fed. Reg. 51,297 (Aug. 14, 2020). In light of this ultimatum, Defendants were
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`motivated at the second mediation session to resolve this litigation in order to shed
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`TikTok’s existing liabilities and maximize its value in preparation for sale.1 After
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`more than twelve hours of negotiation, this mediation session ended in an agreement
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`in principle for class-wide resolution. The terms were later memorialized in a signed
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`agreement on September 4, 2020, although it remained confidential, even from the
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`Court, for some time thereafter.
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`On September 28, 2020, the Court appointed three attorneys to serve as
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`Plaintiffs’ Co-Lead Counsel, one to serve as Plaintiffs’ Liaison Counsel, and five to
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`serve as members of the Plaintiffs’ Steering Committee (collectively, the “Plaintiffs’
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`Leadership Group”). See Case Management Order No. 3, ECF No. 94. In making
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`these selections, the Court drew upon the attorneys’ efforts “in identifying or
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`investigating potential claims in the action”; their “experience in handling class
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`actions, other complex litigation, and the types of claims asserted in the action”; their
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`Although ByteDance initially agreed to sell its U.S. operations of TikTok to Oracle
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`and Walmart later in September 2020, a final agreement never materialized, and
`negotiations have since stalled as the Biden administration has shelved Trump’s threat to
`blacklist the App. See, e.g., Bobby Allyn, Biden Administration Pauses Trump’s TikTok Ban,
`Backs Off Pressure
`to Sell App, National Public Radio, Feb. 10, 2021,
`https://www.npr.org/2021/02/10/966584204/ (last accessed Sept. 29, 2021).
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`4
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`“knowledge of the applicable law”; and the resources that they would “commit to
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`representing the class”; as well as among other factors pertaining to their “ability to
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`fairly and adequately represent the interests of the class.” See Fed. R. Civ. P.
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`23(g)(1)(A)–(B). The Court also was driven by a desire to diversify the members of
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`the Plaintiffs’ Leadership Group in terms not only of their individual experiences,
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`locations, attributes, and qualifications, but also of their relationship to and
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`involvement in the settlement efforts thus far, in hopes that such diversity would
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`promote more robust efforts to represent the interests of the putative class as a whole.
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`Once the Court designated the members of the Plaintiffs’ Leadership Group,
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`they engaged in an extensive effort to evaluate the September 4, 2020, settlement
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`agreement. Members were tasked with analyzing an array of legal, factual, and
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`strategic issues; evaluating confirmatory discovery, including interrogatories,
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`document requests, depositions by written question; reviewing the results of a weeks’-
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`long, on-site inspection of TikTok’s source code conducted by a world-renowned
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`expert; and engaging in further negotiations with Defendants. See Pls.’ Mot. Prelim.
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`Approval Class Action Settlement (“Pls.’ Mot.”), Ex. F, Carroll Decl. ¶¶ 29–37, ECF
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`No. 122-6. Through these efforts, the Plaintiffs’ Leadership Group achieved an
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`addendum to the settlement agreement that strengthens many of its terms, especially
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`with regard to injunctive relief, as well as a consensus amongst Plaintiffs on the terms
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`now presented before the Court.
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`Amid these settlement efforts, Plaintiffs filed a consolidated amended class
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`action complaint on December 18, 2020. See Consolidated Am. Class Action Compl.
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`(“Compl.”), ECF No. 114. The complaint identifies a Nationwide Class, defined as all
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`United States residents who have used the App prior to preliminary approval, and
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`an Illinois Subclass, defined as all Illinois residents who have used the App to create
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`one or more videos prior to preliminary approval, which is premised on alleged
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`violations of Illinois’s Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp.
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`Stat. 14/1 et seq. Compl. ¶ 322.
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`In addition to the BIPA claim (brought on behalf of the putative Illinois
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`Subclass), the complaint asserts nine counts on behalf of the putative Nationwide
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`Class: violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030;
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`violation of the Video Privacy Protection Act (“VPPA”), id. § 2710; violation of
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`California’s Comprehensive Computer Data Access and Fraud Act (“CCDAFA”), Cal.
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`Penal Code § 502; violation of California’s Unfair Competition Law (“UCL”), Cal. Bus.
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`& Prof. Code § 17200 et seq.; violation of California’s False Advertising Law (“FAL”),
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`id. § 17500 et seq.; violation of the right to privacy under the California Constitution,
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`see Cal. Const. art. I, § 1; intrusion upon seclusion under California common law;
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`unjust enrichment under California common law; and violation of consumer
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`protection statutes in various other states. Compl. ¶¶ 338–427.2
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`After five months of vetting and working to improve upon the original
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`settlement agreement, Plaintiffs moved for preliminary approval on February 25,
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`According to the complaint, California substantive law (unlike Illinois substantive law
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`under BIPA) should apply to every member of the putative Nationwide Class, regardless of
`the member’s state of residence, because California’s substantial contacts with the asserted
`claims—Defendants’ U.S. headquarters and principal place of business are located there, and
`the alleged misconduct emanated from there—give it a substantial interest in regulating
`Defendants’ U.S. operations. Compl. ¶¶ 334–37.
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`6
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`2021, at which time its terms were first unveiled. See Pls.’ Mot., Ex. A, Settlement
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`Agreement and Release (“Settlement Agreement”), ECF No. 122-1. In brief, the
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`Settlement Agreement provides as follows.
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`B.
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`Terms of the Settlement Agreement
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`First, the Settlement Agreement provides for monetary relief in the form of a
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`$92 million escrow account that Defendants would fund within 90 days for the benefit
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`of Settlement Class members. Settlement Agreement § 4.1. After deducting all
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`Court-approved settlement-related costs and fees, including reasonable attorneys’
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`fees, the fund would be divided into a total number of pro rata shares equal to the
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`sum of (1) the number of Nationwide Class members (an estimated 89 million
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`persons) who submit a valid claim and (2) five times the number of Illinois Subclass
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`members (an estimated 1.4 million persons, all members of the Nationwide Class as
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`well) who submit a valid claim. Id. §§ 4.5, 5.2–5.3, 13.1; id., Ex. C, Plan of Allocation
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`and Distribution of Settlement Funds at 2, ECF No. 122-3. In this way, members of
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`the Nationwide Class would each receive one share, while members of the Illinois
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`Subclass would each receive one share (for being members of the National Class) plus
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`five additional shares, for six shares overall.3
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`Members selected as class representatives also may be eligible for a service
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`award of up to $2,500 each. Settlement Agreement § 13.2. And any residual funds
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`In order to arrive at the multiplier for the Illinois Subclass, Plaintiffs’ Leadership
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`Group designated separate independent counsel to represent the interests of the Nationwide
`Class and the interests of the Subclass. After evaluating the strength and weaknesses of the
`respective claims, the attorneys then engaged in arms-length negotiations to arrive at the
`multiple. Pls.’ Mot., Ex. J, Rotter Decl. ¶¶ 7–9, ECF No. 122-10; id., Ex. K, Zouras Decl. ¶¶
`6–12, ECF No. 122-11.
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`would be redistributed to class members to the extent feasible or otherwise
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`distributed on terms approved by the Court. Id. §§ 5.4.1–5.4.2. Nothing would revert
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`to Defendants. Id. § 4.5.
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` In addition to monetary relief, the Settlement Agreement provides for broad
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`injunctive relief. Specifically, Defendants agree to refrain from using the App to
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`collect or store a domestic user’s biometric data, geolocation information, or ‘clipboard’
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`content; from storing or transmitting a domestic user’s data outside of the United
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`States; and from pre-uploading domestic user-generated content; unless expressly
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`disclosed in TikTok’s privacy policy and in compliance with all applicable laws. Id. §
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`6.1. Defendants also would delete all pre-uploaded user-generated content collected
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`from domestic users who did not ‘save’ or ‘post’ the content, and would require a newly
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`designed annual training program for their employees and contractors on compliance
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`with data privacy laws. Id. §§ 6.2–6.3.
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`What is more, Defendants agree to hire a third-party firm at their own expense
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`to review their data privacy training for a period of three years and to provide a
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`written verification of that review. Id., Attach., Addendum No. 1 to Settlement
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`Agreement § 4.3, ECF No. 122-1. Defendants would not share users’ personally
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`identifiable information with any third party to the extent prohibited by the Video
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`Privacy Protection Act and would disclose the extent to which they share any user
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`data with third parties in TikTok’s privacy policy. Id. § 4.1.
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` In exchange for such monetary and injunctive relief, members of the
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`Settlement Class agree to release Defendants from any and all claims that were or
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`could have been asserted in this MDL relating to the collection and use of user data.
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`Id. §§ 2.30, 12.1–12.5.4 To opt out of this bargain, a member of the Settlement Class
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`must timely complete, sign, and mail a request for exclusion using a designated form
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`to a designated settlement administrator, setting forth: (i) the name of this matter;
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`(ii) the person’s or entity’s full name, address, email address and telephone number;
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`(iii) a specific statement of the person’s or entity’s intention to be excluded from the
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`settlement; (iv) the identity of the person’s or entity’s counsel, if represented; and (v)
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`the date on which the request was signed. Id. § 10.1.
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`The parties propose to provide notice of the Settlement Agreement to members
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`of the Settlement Class through a program led by an experienced third-party
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`administrator. See id. § 9.1; id., Ex. L, Weisbrot Decl., ECF No. 122-12. The program
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`will include direct notice to all class members whose email addresses the
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`administrator is able to identify and validate from an analysis of class data records
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`as well as a national media campaign consisting of targeted advertisements via the
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`internet, Facebook, Instagram, Twitter, and various search engines, with specific
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`emphasis on reaching Illinois Subclass members. Weisbrot Decl. ¶¶ 12, 19, 24, 36,
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`40. The digital media campaign alone is anticipated to reach over 95% of class
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`members more than five times each, while at least one-third of class members are
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`At the same time, Defendants agree to waive their right to enforce the release to the
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`extent that the release would prevent class members from participating in the pending
`settlement in T.K. v. ByteDance Tech. Co., No. 19 C 7915 (N.D. Ill.) (Blakey, J.). Settlement
`Agreement § 2.4; see also 4/28/21 Min. Entry, T.K., ECF No. 68 (noting that Defendants “do
`not object to an ostensible ‘double recovery’ by members of the settlement class” in both that
`case and this case). For this reason, the Court overrules Mark S.’s objection that the release
`in this case is overbroad by making class members choose between the proposed settlement
`in this case and in T.K.
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`9
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`expected to receive direct email notice. Id. ¶¶ 15, 18, 47. The proposed notice plan
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`also calls for a dedicated settlement website and a toll-free telephone line. Id. ¶ 14.
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`Furthermore, while Defendants were initially reluctant to provide notice via
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`the TikTok App’s ‘inbox’ feature for a variety of reasons, they have since agreed to do
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`so at their own cost. Pls.’ Suppl. Mem. Supp. Mot. Prelim. Approval Class Action
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`Settlement at 25, ECF No. 137.
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`II.
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`Legal Standard
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`“Federal Rule of Civil Procedure 23(e) requires court approval of any
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`settlement that effects the dismissal of a class action.” Reynolds v. Beneficial Nat’l
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`Bank, 288 F.3d 277, 279 (7th Cir. 2002) (cleaned up). When parties seek preliminary
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`approval of a class-action settlement agreement under Rule 23(e), the district court
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`must undertake three essential inquiries.
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`First, the court must determine whether it “will likely be able” to certify the
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`putative class for purposes of judgment on the proposed settlement. Fed. R. Civ. P.
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`23(e)(1)(B)(ii); see Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., Nos. 07 C 2898, 09
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`C 2026, 2011 WL 3290302, at *3 (N.D. Ill. July 26, 2011). The criteria for class
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`certification “demand undiluted, even heightened attention” in the Rule 23(e) context
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`given that “a court asked to certify a settlement class will lack the opportunity,
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`present when a case is litigated, to adjust the class, informed by the proceedings as
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`they unfold.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997); see also Uhl
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`v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002).
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`Second, the district court must determine whether the proposed settlement is
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`10
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`“within the range of possible approval” with regard to the criteria set forth in Rule
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`23(e)(2). Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (cleaned up); see
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`Fed. R. Civ. P. 23(e)(1)(B)(i). Under Rule 23(e)(2), the court may finally approve a
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`proposal settlement “only after a hearing and only on finding that it is fair,
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`reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). At the preliminary approval
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`stage, however, the purpose of the inquiry is only “to ascertain whether there is any
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`reason to notify the class members of the proposed settlement and to proceed with a
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`fairness hearing,” Gautreaux, 690 F.2d at 621 n.3, “not to conduct a full-fledged
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`inquiry into whether the settlement meets Rule 23(e)’s standards,” Am. Int’l Grp.,
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`2011 WL 3290302, at *6. “Thus, although neither the Federal Rules of Civil
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`Procedure nor binding case law requires it,” courts in this district have tended to
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`perform “a more summary version of the final fairness inquiry” at the preliminary
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`approval stage. Id. (collecting cases); see In re Gen. Motors Corp. Engine Interchange
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`Litig., 594 F.2d 1106, 1132 (7th Cir. 1979) (stating that preliminary approval
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`hearings are preferable but not mandatory).
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`The Seventh Circuit’s “longstanding guidance” on Rule 23(e)(2) instructs
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`district courts to consider the following factors in conducting a fairness inquiry: “(1)
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`the strength of the case for plaintiffs on the merits, balanced against the extent of
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`settlement offer; (2) the complexity, length, and expense of further litigation; (3) the
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`amount of opposition to the settlement; (4) the reaction of members of the class to the
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`settlement; (5) the opinion of competent counsel; and (6) stage of the proceedings and
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`the amount of discovery completed.” Wong v. Accretive Health, Inc., 773 F.3d 859,
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`11
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`863 (7th Cir. 2014) (quoting Gautreaux, 690 F.2d at 631); see also Fed. R. Civ. P.
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`23(e)(2) (listing factors for final approval). “The most important factor relevant to the
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`fairness of a class action settlement is the strength of plaintiff’s case on the merits
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`balanced against the amount offered in the settlement.” In re Gen. Motors, 594 F.2d
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`at 1132 n.44. At the same time, courts “do not focus on individual components of the
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`settlements, but rather view them in their entirety in evaluating their fairness.” Isby
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`v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996) (cleaned up).
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`Third, if the district court finds that it will likely be able to certify the putative
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`class and that the proposed settlement is within the range of possible approval, the
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`court must then direct the plaintiffs to provide notice “in a reasonable manner to all
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`class members who would be bound” by the proposed settlement agreement. Fed. R.
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`Civ. P. 23(e)(1). For any Rule 23(b)(3) class proposed to be certified for purposes of a
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`settlement under Rule 23(e), “the court must direct to class members the best notice
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`that is practicable under the circumstances, including individual notice to all
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`members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).
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`This notice requirement “is designed to guaranty that those bound by the ruling in a
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`class action were accorded their due process rights to notice and an opportunity to be
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`heard.” Chaffee v. A&P Tea Co., Nos. 79 C 2735 and 79 C 3625, 1991 WL 5859, at *2
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`(N.D. Ill. Jan. 16, 1991).
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`Before proceeding to this three-part inquiry, it bears emphasizing the Seventh
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`Circuit’s recognition that, due to “the built-in conflict of interest in class action suits,”
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`the law “quite rightly requires more than a judicial rubber stamp when the lawsuit
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`12
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`that the parties agreed to settle is a class action.” Redman v. RadioShack Corp., 768
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`F.3d 622, 629 (7th Cir. 2014). On the contrary, the ever-present problem in class
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`action litigation of lawyers who “may . . . place their pecuniary self-interest ahead of
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`that of the class . . . . requires district court judges to exercise the highest degree of
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`vigilance in scrutinizing proposed settlements of class actions.” Reynolds, 288 F.3d
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`at 280. The appellate court has even “gone so far as to term the district judge in the
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`settlement phase of a class action suit a fiduciary of the class, who is subject therefore
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`to the high duty of care that the law requires of fiduciaries.” Id. At the same time, it
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`has recognized that “[f]ederal courts naturally favor the settlement of class action
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`litigation.” Isby, 75 F.3d at 1196.
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`III. Analysis
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`A. Whether the Putative Class Is Likely To Be Certified
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`The first issue is whether the Court “will likely be able” to certify the putative
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`Settlement Class for purposes of a judgment on the proposed settlement. Fed. R. Civ.
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`P. 23(e)(1)(B)(ii). This inquiry focuses on two rules: Rule 23(a) and Rule 23(b)(3).
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`1.
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`Rule 23(a)
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`First, under Rule 23(a), the Court must determine whether it is likely to find
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`that: “(1) the class is so numerous that joinder of all members is impracticable; (2)
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`there are questions of law or fact common to the class; (3) the claims or defenses of
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`the representative parties are typical of the claims or defenses of the class; and (4)
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`the representative parties will fairly and adequately protect the interests of the
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`class.” Fed. R. Civ. P. 23(a).
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`13
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`The first three of these prerequisites are readily satisfied in this case. Given
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`its estimated 89 million members nationwide, the Class is plainly too numerous for
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`joinder to be practicable. Cf. McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D.
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`Ill. 2002) (“Although there is no ‘bright line’ test for numerosity, a class of forty is
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`generally sufficient to satisfy Rule 23(a)(1).”). And there are abundant questions of
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`law and fact arising from the “nucleus of operative fact” common to those 89 million
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`class members, including, to name some of the key examples:
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`• Whether Defendants improperly collected, stored, disseminated, or
`otherwise used class members’ biometric data and personally
`identifiable information;
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`• Whether Defendants exceeded the scope of their authorized access to
`class members’ electronic devices;
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`• Whether Defendants were unjustly enriched through their alleged
`misconduct;
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`• Whether class members consented to Defendants’ alleged misconduct by
`agreeing to TikTok’s terms of service;
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`• Whether class members suffered actual damages; and
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`• Whether class members are entitled to monetary and injunctive relief.
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`Cf. Parker v. Risk Mgmt. Alternatives, Inc., 206 F.R.D. 211, 213 (N.D. Ill. 2002) (“[A]
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`common nucleus of operative fact is usually enough to satisfy the [commonality]
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`requirement.”). Similarly, because each class member is a user of the App who
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`confronted the same alleged misconduct in much the same manner, the claims of the
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`proposed class representatives typify those of the absent class members. Cf. id.
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`(“Typicality is satisfied if a plaintiff’s claims arise from the same event, practice or
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`course of conduct that gives rise to the claim of the other class members, and if the
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`claims are based on the same legal theory.”).
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`The Court also finds that the proposed representative parties will fairly and
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`adequately protect the interests of the Nationwide Class and Illinois Subclass as a
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`whole, and have done so thus far. This prerequisite of Rule 23(a) has two components:
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`(1) “the representatives must not possess interests which are antagonistic to the
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`interests of the class,” and (2) “the representatives’ counsel must be qualified,
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`experienced and generally able to conduct the proposed litigation.” CV Reit, Inc. v.
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`Levy, 144 F.R.D. 690, 698 (S.D. Fla. 1992); see also Retired Chi. Police Ass’n v. City of
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`Chi., 7 F.3d 584, 598 (7th Cir. 1993).
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`Here, the proposed Nationwide Class representatives’ interests are aligned
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`with, not antagonistic to, those of the absent Nationwide Class members, because
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`they all want to use the App without having their privacy rights violated and to
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`receive compensation for their allegations that Defendants have previously violated
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`those rights under law that applies nationwide. The same goes for the proposed
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`Illinois Subclass representatives’ interests in vindicating the privacy rights of Illinois
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`users of the App under BIPA. And especially given that the proposed class counsel
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`are the same attorneys whom the Court vetted and selected to serve as Plaintiffs’
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`Interim Co-Lead Counsel, the Court is confident that they possess the qualifications,
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`experience, and capabilities needed to champion these interests.
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`
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`Disagreeing with this conclusion, Mark S. objects that the proposed settlement
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`does not satisfy Rule 23(a)(4) because, in his view, it omits additional subclasses
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`needed to account for two conflicts that exist between minor and non-minor putative
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`class members. First, Mark S. contends that minor class members should receive
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`greater compensation because, unlike non-minor class members, they are able to
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`disaffirm the purported arbitration agreements and class action waivers found in
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`TikTok’s terms of service, which are among the primary litigation risks Plaintiffs
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`face. But Mark S. overlooks that disaffirmance would seem to require individual
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`minor class members, at the very least, to stop using the App, which may not be
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`worthwhile. Cf., e.g., C.M.D. ex rel. De Young v. Facebook, Inc., 621 F. App’x 488, 489
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`(8th Cir. 2015) (“By continuing to use facebook.com after bringing their action,
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`Plaintiffs manifested an intention not to disaffirm the contract.”). And Mark S. does
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`not contend that any minor class members have disaffirmed these agreements to
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`date. In any event, twenty-eight of the thirty-five proposed class representatives are
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`themselves minors and have an interest in ensuring that their rights (and those of
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`other minor class members) are aggressively pursued. And, indeed, the proposed
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`class counsel, all of whom represent minor Plaintiffs, represent that they studied this
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`issue while negotiating the settlement.
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`
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`Second, Mark S. posits that minors under the age of thirteen require unique
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`injunctive relief in order to ensure that Defendants delete all of their personal
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`information and disclose the identities of the entities with whom Defendants
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`previously shared this information. But Mark S. fails to explain why this is so, and
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`the Court discerns no reason why minor class members under thirteen would suffer
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`harms that are different than those of older minor class members, after the
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`settlement is implemented.
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`2.
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`Rule 23(b)(3)
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`Because Plaintiffs seek to certify the Class under Rule 23(b)(3), the Court also
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`must consider whether it is likely to conclude that: “the questions of law or fact
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`common to the class members predominate over any questions affecting only
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`individual members”; and “a class action is superior over other available methods for
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`fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Factors
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`particularly pertinent to these issues here “include: (A) the class members’ interests
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`in individually controlling the prosecution . . . of separate actions” and “(B) the extent
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`and nature of any litigation concerning the controversy already begun.” See id.
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`
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`These prerequisites are satisfied as well. Predominance is met because many
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`of the issues of law and fact common to members of the Nationwide Class and Illinois
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`Subclass, respectively, may be resolved “through generalized proof”—namely, by
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`examining Defendants’ uniform data collection and privacy practices against their
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`legal obligations. And these issue “are more substantial” than any issues that may
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`be “subject only to individualized proof.” See Roach v. T.L. Cannon Corp., 778 F.3d
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`401, 405 (2d Cir. 2015).
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`The requirement of superiority also is met because, given the relatively modest
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`amounts that class members would stand to recover in individual actions, it is
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`improbable that many “would possess the initiative to litigate individually.” See
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`Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974); cf.
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`Amchem, 521 U.S. at 617 (“The policy at the very core of the class action mechanism
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`is to overcome the problem that small recoveries do not provide the incentive for any
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`individual to bring a solo action prosecuting his or her rights.” (cleaned up)). Indeed,
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`as the procedural history of this MDL illustrates, this is precisely the kind of matter
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`in which “a class suit is the best, an