Case: 1:20-cv-04699 Document #: 184 Filed: 01/24/22 Page 1 of 16 PageID #:3315
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`IN RE: TIKTOK, INC.,
`CONSUMER PRIVACY
`LITIGATION,
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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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`This document relates to all cases
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`Magistrate Judge Sunil R. Harjani
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`OBJECTION OF DENNIS LITTEKEN
`TO CLASS ACTION SETTLEMENT
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`Something about this settlement stinks. See Eubank v. Pella Corp., 753 F.3d 718, 720
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`(7th Cir. 2014) (explaining that when “a judge is being urged by both adversaries to approve the
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`class-action settlement that they’ve negotiated, he’s at a disadvantage in evaluating the fairness
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`of the settlement to the class . . . [but that] Members of the class who smell a rat can object to
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`approval of the settlement.”) This MDL is comprised of more than twenty class actions
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`containing widely publicized allegations that Defendant TikTok, Inc. has used technology hidden
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`in its video sharing mobile application to collect troves of data about U.S. consumers which it
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`then shares with the Chinese government. Indeed, the alleged wrongdoing led to the TikTok app
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`being banned by the U.S. military from use on government issued phones, calls from U.S.
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`Senators for a ban of the app in the United States, and ultimately an order from the President that
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`the app presented a “national emergency” that “threatened the national security, foreign policy,
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`and economy of the United States” and therefore needed to be immediately sold. (Dkt. 161 at 3-
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`4.) If TikTok did what’s alleged in the ten-count, 120-page consolidated complaint, (see
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`generally dkt. 114), then it has engaged in very serious, likely criminal, wrongdoing and the
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`settlement is woefully inadequate for a company that at the same time made $34.3 billion in
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`1
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`(cid:16)(cid:27)(cid:21)(cid:29)(cid:20)(cid:24)(cid:23)(cid:26) (cid:17)(cid:26)(cid:30)(cid:22)(cid:25)(cid:27)(cid:28)(cid:22) (cid:19)(cid:16)(cid:12) (cid:4)(cid:15)(cid:13)(cid:4)(cid:14)(cid:8)(cid:10)(cid:4)(cid:2)(cid:14)(cid:9)(cid:14)(cid:5)(cid:2)(cid:6)(cid:6)(cid:13)(cid:5)(cid:2)(cid:13)(cid:14)(cid:8)(cid:8)(cid:2)(cid:5)(cid:18)(cid:4)(cid:18)(cid:11)(cid:7)(cid:4)(cid:3)(cid:5)(cid:14)(cid:18)(cid:10)
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`2020 alone. Arjun Kharpal, TikTok owner ByteDance’s revenue surged 111% in 2020, records
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`1.9 billion users, CNBC (June 17, 2021), https://www.cnbc.com/2021/06/17/chinas-bytedance-
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`tiktok-owner-saw-revenue-surge-111percent-in-2020.html.
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`With its actions, TikTok is giving every indication that it engaged in wrongdoing. TikTok
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`immediately attempted to settle the suit with counsel in the first-filed case, well before the
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`government pressure campaign began. (Dkt. 11-1 ¶ 2.) When the case didn’t immediately settle,
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`but more cases began piling up, TikTok hand-selected counsel from a competing case where no
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`litigation whatsoever had occurred and reached a deal that was contingent on undisclosed items
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`and kept secret from everyone including the court. (See dkts. 11 & 11-1.) This settlement was
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`reached by counsel not yet appointed by the Court to represent the class, by an undisclosed client
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`whose case contained single claim under BIPA, and where no discovery or motions practice
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`testing the claims had occurred. See E.R. v. TikTok, Inc. No. 20-cv-02810 (N.D. Ill.). It is beyond
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`a doubt that TikTok did not have any class member’s best interests at heart when it took that
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`step. See Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 282-83 (7th Cir. 2002) (discussing “a
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`‘reverse auction,’ the practice whereby the defendant in a series of class actions picks the most
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`ineffectual class lawyers to negotiate a settlement with in the hope that the district court will
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`approve a weak settlement that will preclude other claims against the defendant.”). It’s also plain
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`that counsel attending the mediation was simply interested in reaching topline number, with no
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`thought or insight into the value of the several claims at issue. This process reeks of collusion.
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`As the Court is aware, the result was a $92 million settlement to resolve all conceivable
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`claims against TikTok. The top line number may be impressive in the abstract, but in the
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`circumstances of this case, with a Nationwide Class of around 89 million, the number is much
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`less noteworthy. Moreover, the Settlement is titled heavily in favor of about 1.4 million class
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`members who live in Illinois. And any class member looking at the settlement or the notice
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`would conclude TikTok is paying the bulk of the $92 million because TikTok was violating the
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`Illinois Biometric Information Privacy Act by collecting biometrics as part of its consumer data
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`harvesting, thus entitling those Illinois class members to six times what everyone else gets.
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`Everyone else, including Mr. Litteken, gets a pittance. But if you look closer, the only thing class
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`members are told for sure is that TikTok didn’t violate BIPA because TikTok has warranted, and
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`Class Counsel has apparently confirmed, that TikTok has “not used the App to collect biometric
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`information or [] identifiers as defined by [BIPA].” (Dkt. 122-1 § 7.1; see also id. §§ 7.2–7.3;
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`dkt. 161 at 22.) If Class Counsel have confirmed other facts related to TikTok’s wrongdoing, the
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`class isn’t told. No other justification for the contrasting treatment of Illinois subclass members
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`ever is provided. Again, something stinks.
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`To cover the stench, Class Counsel have taken a series of steps, some more extraordinary
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`than others, to make this inadequate settlement seem fairer than it is. They first tried to cover up
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`the relatively small size of the settlement by relying almost exclusively on publication notice and
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`making misleading statements about the feasibility of providing direct notice to nearly every
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`class member though the TikTok app. Only when called out by Mr. Litteken and the Court did
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`TikTok apparently agree to in-app notice, at no cost, that Class Counsel was unable to negotiate.
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`This poor notice allowed Class Counsel to claim Class Members were getting sufficient relief,
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`but only based on the claim rates that inadequate notice would produce. Next, Class Counsel
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`sought to protect their anticipated request for one-third of the settlement in fees by setting the
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`objection deadline before they are required to file their fee petition, in blatant violation of
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`Seventh Circuit authority. Class Counsel also have further frustrated the objection process by
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`listing differing objection criteria in the class notice and the preliminary approval order they
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`drafted. And as has already been laid out, Ms. Carroll has gone far out of the bounds of a
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`vigorous and healthy debate about what kinds of settlements benefit class members and are
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`deserving of judicial approval through her attempts to get Mr. Litteken and his counsel to drop
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`their objection to this unfair settlement. (See dkts. 165, 178.) This certainly calls Ms. Carroll’s
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`adequacy as class counsel into question. See Creative Montessori Learning Ctrs. v. Ashford Gear
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`LLC, 662 F.3d 913, 919 (7th Cir. 2011).
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`In other words, a flawed process produced predictably flawed results. The Court should
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`deny the request for final approval. At a minimum, the Court must order Settlement Class
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`Counsel to re-notice the class with sufficient information concerning their fee request and adjust
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`the objection deadline accordingly.
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`I.
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`Required Information Concerning Objector
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`The counsel-drafted preliminary approval order, (dkt. 162), and the notice provided to the
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`class, list different sets of information for class members to submit in order to object to the
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`settlement. (Compare id. ¶ 9 (requiring seven categories of information) with § 16 at
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`https://perma.cc/D7C5-2L9R (requiring three categories of information). Both sets require far
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`more information from objectors than is provided to the class about the Class Representatives
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`supposedly protecting their interests. Mr. Litteken believes that the information required by the
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`notice is sufficient and that no objecting class member should be denied their right to object
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`because they provided what the settling parties told them was required. Johnson v. Quantum
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`Learning Network, Inc., No. 15-CV-05013-LHK, 2016 WL 8729941, at *3 (N.D. Cal. Aug. 12,
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`2016) (Koh, J.) (“The Settlement and Notice should be consistent so that a Class Member
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`wishing to object is able to do so properly.”) Nevertheless, Mr. Litteken will provide the
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`following requested information, with the exception of his retainer agreement with his counsel,
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`his declaration, and his counsel’s declaration, unless compelled to do so by this Court. Mr.
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`Litteken objects to those requirements as an unnecessary barrier to asserting his right to object.
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`Bezdek v. Vibram USA, Inc., 809 F.3d 78, 84 n.3 (1st Cir. 2015) (“Becauseparties to
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`a settlement have a shared incentive to impose burdensome requirements on objectors and
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`smooth the way to approvalof the settlement, district courts should be wary of possible efforts
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`by settling parties to chill objections.”) His signature and that of his counsel are more than
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`adequate. Personal information is redacted per Fed. R. Civ. P. 5.2.
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`Name: Dennis Litteken
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`Address:
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`Phone Number:
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`TikTok Handle:
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`This objection appliesto all class members in part, and to class members whoare notpart of the
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`favored Illinois Subclass. Mr. Litteken is represented by, and intends to appear atthe final
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`approval hearing though, his counsel Jay Edelson, Ryan D. Andrews, and J. Eli Wade-Scott of
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`Edelson PC. His counsel have objected to the following settlements within the last five years: (1)
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`Prelipceanu v. Jumio Corp., No. 2018-CH-15883 (Cir. Ct. Cook Cnty., Ill.) (objection
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`overruled); (2) Remijas v. Neiman Marcus, No. 14-cv-1735 (N.D.Ill.) (objection sustained, see
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`341 F. Supp. 3d 823 (N.D.Ill. 2018); (3) Cohen v. Fedex, No. CIVDS1818604 (Sup. Ct. San
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`Bernardino Cnty.) (objection overruled); and (4) Jn re NCAA Student-Athlete Concussion Injury
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`Litig., No. 13-cv-9116 (N.D.Ill.) (objection sustained in substantial part, see dkts. 115, 246). The
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`orders addressing each of these objections are matters of public record.
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`IL.
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`Setting the Deadline for Class Counsel to Move for Fees After the Objection
`Deadline Violates Rule 23(h).
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`In an attempt to insulate their apparently forthcoming request for more than $30 million
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`in attorney fees from meaningful opposition, Class Counsel drafted, and this Court entered, a
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`preliminary approval order that violates Rule 23(h) and controlling precedent on its face.1 (Dkt.
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`162.) As the Seventh Circuit has repeatedly made plain, Rule 23(h) requires a motion for
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`attorneys’ fees in a class action to be made prior to the deadline for objections to be filed.
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`Kaufman v. Am. Express Travel Related Servs. Co., Inc., 877 F.3d 276, 284 (7th Cir. 2017) (“the
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`plain text of Rule 23(h) . . . requires parties to file motions for attorneys’ fees before the deadline
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`to object to the settlement.”); Redman v. RadioShack Corp., 768 F.3d 622, 637–38 (7th Cir.
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`2014) (“Class counsel did not file the attorneys’ fee motion until after the deadline set by the
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`court for objections to the settlement had expired. That violated the rule. . . . There was no
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`excuse for permitting so irregular, indeed unlawful, a procedure.”)
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`Here, the “Opt-Out and Objection Deadline” is January 31, 2022. This date for objections
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`is repeated in the class notice and the settlement website. www.tiktokdataprivacysettlement.com.
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`In violation of Rule 23(h) and controlling case law, however, the “Deadline to file Motion for
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`Attorneys’ Fees and Services Awards” is March 31, 2022. (Dkt. 162 ¶ 25.) Nothing is said in the
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`class notice or settlement website about the filing of Class Counsel’s motion for fees. In this
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`Circuit, including such an irregular and unlawful procedure is not harmless error: while class
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`members may understand from the notice that Class Counsel will seek one-third of the
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`Settlement Fund, they are
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`handicapped in objecting because the details of class counsel’s hours and expenses
`[will be] submitted later, with the fee motion, and so they [will] not have all the
`information they need[] to justify their objections. The objectors were also
`handicapped by not knowing the rationale that would be offered for the fee request
`. . . .
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`Redman, 768 F.3d at 638; but see Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1252 (11th Cir.
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`Incredibly, this is the second blatantly unlawful provision in that order. (See dkts. 165,
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`178 (demonstrating the impropriety of the preliminary injunction contained in the same order).)
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`2020) (noting process handicaps objectors but splitting with the Seventh Circuit on if such a
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`violation can be harmless error). Nor does the later April 14, 2022 “Deadline for any responses
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`to Plaintiffs’ …. Motion for Attorneys’ Fees and Service Award” remedy this error. The order
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`and Notice give one deadline to object—January 31, 2022. The April deadline appears to apply
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`to Defendant, who has the right under the settlement to object to fees. (See dkt. 122-1 § 13.3.)
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`Here, that matters. The request for a flat one-third of the settlement fund, like several
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`prior actions by class counsel, would run afoul of Seventh Circuit fee decisions and other
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`relevant considerations. For instance, under Seventh Circuit law a sliding-scale approach to fees
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`is warranted in a settlement of this size. In re Synthroid Mktg. Litig., 325 F.3d 974 (7th Cir.
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`2003); see also Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2017 WL 1369741, at *1
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`(N.D. Ill. Apr. 10, 2017), aff’d sub nom. Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d
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`792 (7th Cir. 2018). In addition, the class notice (the only place where class members currently
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`are told what Class Counsel will seek in fees) states they will request one-third of the entire
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`settlement fund. But in this Circuit, any percentage request must be of the amount actually made
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`available to the class and cannot include the costs of notice and administration. Redman, 768
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`F.3d at 630; Pearson v. NBTY, Inc., 772 F.3d 778, 781 (7th Cir. 2014) (“notice and fees ... are
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`costs, not benefits.”). And even a percentage request within the bounds of controlling case law
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`can’t possibly be justified by the class counsel’s lodestar in a case where nothing has happened
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`other than lawyers fighting over who should be lead. See In re Nat’l Collegiate Athletic Ass’n
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`Student-Athlete Concussion Inj. Litig., 332 F.R.D. 202, 221 (N.D. Ill. 2019) (“Though not
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`required, a district court may calculate a reasonable fee under one method and then cross-check
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`its calculation under the other.”); see also Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d
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`756, 762–63 (S.D.W. Va. 2009) (noting that the risk of nonpayment to class counsel is greatly
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`reduced is cases that immediately enter mediation with an eye toward early settlement). Finally,
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`if the Court determines that the market would apply a flat fee instead of a sliding-scale approach,
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`it’s hard to imagine why that percentage should possibly be more than the 15% awarded by the
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`court in Facebook that everyone agrees was a better deal that required considerably more work.
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`Or if the Court determines that TikTok settled, not because of the lawsuit, but because of
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`governmental pressure, it’s hard to see how class counsel was anything other than a vehicle used
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`by TikTok for its own purposes. Should that turn out the be the case, Class Counsel should be
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`limited to their lodestar and the Court should appoint a Special Master to review the billing
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`records. But, of course, little more about the request can be said because objectors currently lack
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`any detail about the size of the request, or Class Counsel’s justifications for it.
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`Ultimately, Class Counsel’s unforced error in violating Rule 23(h) requires, at a
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`minimum, re-noticing of the class so that they have all information about Class Counsel’s fee
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`request to which they are entitled at the time they are obligated to object. Because this error is
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`entirely of Class Counsel’s making, the costs of further notice should come at their expense.
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`III.
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`The Ordered Notice is Better, But Still Not “The Best Practicable.”
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`Mr. Litteken appreciates the attention that the Court gave to this settlement at preliminary
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`approval and that it required TikTok to implement his proposal that notice be provided through
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`the TikTok inbox. (Dkt. 132 at 4.) Mr. Litteken has no doubt that this additional notice will result
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`in marked improvement to the embarrassingly low 1.5% claims rate estimated by Class Counsel
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`at preliminary approval. But given that notice is going to have to be re-sent given the violation of
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`Rule 23(h), Mr. Litteken submits that more can be done to obtain the emails of the two-thirds of
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`the class the settling parties claim to not have. (See dkt. 122-12 ¶ 18.)
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`In his initial objection, Mr. Litteken proposed that notice should be disseminated both
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`through the TikTok app and that Class Counsel should subpoena app platform providers (like the
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`Apple Store or the Google Play Store) for email information for the entire class. This was met
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`with assurances that Class Counsel already tried to TikTok to agree to such notice but it was
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`disregarded because “we don’t think people actually pay attention to that.” (Dkt. 138-5 at 13:15-
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`16.) The Court recognized that Class Counsel’s proposed notice plan, which relied heavily on
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`publication notice, was a non-starter, and ordered in-app notice. (Dkt. 161 at 29.) The Court was
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`absolutely correct. Because class members must file a claim in order to receive benefits under the
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`Settlement, direct notice is essential. And when robust direct notice is provided and the amount
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`class members can recover is meaningful to them, they actively participate at rates far above the
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`meager predictions by Co-Lead Counsel here. See In re Facebook Biometric Info. Priv. Litig.,
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`522 F. Supp. 3d 617, 628-29 (N.D. Cal. 2021) (robust direct notice given to 6.9-million-member
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`class in privacy case resulting in 22% filing claims to receive $345 each); Edwards v. Hearst
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`Comm’n Inc., No. 15-cv-9279, dkt. 310 (S.D.N.Y. Apr. 4, 2019) (direct notice given to
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`approximately 4-million-member class in privacy case resulting in 7.4% filing claims for $100);
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`Kusinski v. ADP, LLC, 2017 CH 12364 (Cook Cnty., Ill. Feb. 10, 2021) (robust direct notice to
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`320,000-member class in BIPA case resulting in 12.5% filing claims to receive $375 each).
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`Because the Court will need to require a second round of notice, the Court should also
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`order the parties to produce information about whether this notice truly was effective—for
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`instance, did it translate to the types of claims rates one expects in cases with robust direct
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`notice? If not, the Court should order Class Counsel to obtain emails for as many class members
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`as it can through the app platforms. See, e.g., In re Suboxone Antitrust Litig., No. 16-5073, 2021
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`WL 3929698, at *1-8 (E.D. Pa. Sept. 2, 2021) (rejecting a publication notice plan because class
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`counsel could reasonably obtain the contact information of many class members by issuing 26
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`subpoenas, about 22 more than would be required here).
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`IV.
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`If Everyone Admits TikTok Didn’t Violate BIPA, Why is the Illinois Subclass
`Getting all the Money?
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`Mr. Litteken, a California resident, attempted to point out at preliminary approval that
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`there has been no permissible justification as to why the Illinois subclass is receiving nearly all
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`of the money in this settlement. To grant final approval, the court must determine whether “the
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`proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “A
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`distribution of relief that favors some class members at the expense of others may be a red flag
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`that class counsel have sold out some of the class members at the expense of others, or for their
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`own benefit.” William B. Rubenstein, 4 NEWBERG ON CLASS ACTIONS § 13:56 (5th ed.); True v.
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`Am. Honda Motor Co., 749 F. Supp. 2d 1052, 1067 (C.D. Cal. 2010) (“Courts generally are wary
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`of settlement agreements where some class members are treated differently than others.”).
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`Here, neither the 6-to-1 allocation of claims in favor of the Illinois Subclass nor the
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`process used to reach it was remotely fair. Start with the process. After the initial complaint in
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`the cases comprising the MDL was filed (and before any of the subsequent pile-on of copycat
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`cases), TikTok attempted to resolve the claims against it. (Dkt. 11-1 ¶ 2.) When that settlement
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`failed to provide TikTok with an escape from litigation, in the words of one Co-Lead Counsel,
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`TikTok then
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`negotiated the purported settlement with only certain plaintiffs’ counsel, hand-
`selected by Defendants themselves, at an August 13, 2020 mediation conducted
`before this Court has considered leadership applications or issued a Rule 23(g)
`leadership order – and after attorney Katrina Carroll’s administrative appointment
`in the N.D. Ill. actions as temporary interim lead counsel for the JPML proceedings
`had expired. That is, Defendants negotiated the purported settlement in a leadership
`vacuum with no clarity as to who had ultimate authority on the plaintiffs’ side to
`consummate a settlement on behalf of the entire Class – a structurally-flawed
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`arrangement that created the wrong incentives for plaintiffs’ counsel who
`participated in the mediation.
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`(Dkt. 12 at 9-10.) Later, Ms. Carroll and TikTok then barred competing counsel from
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`participating in the mediation and refused to disclose the terms of the binding term sheet they
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`agreed to on August 13. (Dkt. 11-1 ¶¶ 5-6, 8; dkt. 122-6 ¶ 20).2
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`At the time the agreement was reached, Ms. Carroll’s clients were named only by their
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`initials (E.R. and L.H.), which while required for minors is highly suspect for the adult guardian
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`especially in light of Ms. Carroll’s prior improper use of familiar class representatives and the
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`specter of impropriety that has plagued this settlement from the get-go. Gordon v. Caribbean
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`Cruise Line, Inc., No. 14 C 5848, 2019 WL 498937, at *9 (N.D. Ill. Feb. 8, 2019) (Lee, J.)
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`(finding named plaintiff was an inadequate class representative in a case brought by Ms. Carroll
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`because of his “significant business ties” and “close personal ties to Carroll.”) Indeed, we know
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`far less about the Class Representatives than is being required to exercise class member’s right to
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`object. But given the limited information provide about the Class Representatives here and that
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`the past attempt to use an improper class representative was only unearthed through adversarial
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`litigation, see id., more needs to be disclosed to ensure the Court or TikTok vetted the adequacy
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`of the parties agreeing to the settlement.
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` That resulting Settlement, signed on September 4, 2020, was entered into without the
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`benefit of any discovery, confirmatory or otherwise, but nevertheless prioritized the Illinois
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`Subclass such that their share of the $92 million fund would always be 3 to 10 times more than
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`The Court’s forced marriage of competing counsel seeking control of this case doesn’t
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`fully explain the change of heart by Counsel initially locked out of the settlement. The Court
`should insist upon the production of any agreements between counsel related to the division of
`the over $30 million dollars Class Counsel has indicated it intends to seek in fees. See Fed. R.
`Civ. P. 23(e)(3).
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`the Nationwide Class, with the exact difference in payment to be mediated with Judge Phillips.3
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`(Dkt. 122-1 § 5.3.2.) Beginning on December 28, 2020, in apparent violation of their own
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`agreement, the task of determining how much more the Illinois Subclass would get than the rest
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`of the class was delegated to Mr. Zouras (for the Illinois Subclass) and Mr. Rotter (for the
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`Nationwide Class). (Dkt. 122-11 ¶¶ 6, 7; dkt. 122-7 ¶ 25(f).) These negotiations that resulted in
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`the 6:1 allocation (the exact middle of the predetermined range) were based solely on the
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`“Settlement Agreement and addendum, mediation briefs, and other confidential work product.”
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`(Dkt. 122-11 ¶ 8.) Apparently after the allocation was reached, the February 16, 2021 addendum
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`removed the oversight of Judge Phillips from this process. (Dkt. 122-1, Addendum § 3.1.) At the
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`time the allocation was decided, TikTok had warranted that it didn’t violation BIPA, provided no
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`similar warranty about whether the other serious allegations of wrongdoing had or had not
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`occurred, absolutely no discovery of any had been provided, and none of the claims had even
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`been challenged by a motion to dismiss.
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`Class Counsel and the Court at preliminary approval justified this process and resulting
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`6:1 allocation for a host of reasons: (1) because the settlement was mediated with former district
`
`Judge Layn Phillips, (2) the collation of firms appointed by the Court purportedly confirmed the
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`fairness of the deal through confirmatory discovery and an “exhaustive” analysis of the law, (3)
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`the non-BIPA causes of action have various litigation risks; (4) comparable BIPA and VPPA
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`settlements are within the projected values here; and (5) the pressure put on TikTok by the
`
`former President’s orders was so great it paid nearly $100 million it otherwise wouldn’t have.
`
`The Settlement notably omits a host of customary (and in some cases required) terms:
`3
`There is no agreed-upon notice plan or attached proposed notices (see dkt. 122-1 §9), no named
`settlement administrator (id. § 2.32), no method of distributing claims provided (id. § 5.3.4), and
`an admission that size of both classes was at the time of signing was unknown (id. § 7.4).
`
`12
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`

`

`Case: 1:20-cv-04699 Document #: 184 Filed: 01/24/22 Page 13 of 16 PageID #:3327
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`(See dkt. 161 at 21.) But these post hac rationalizations don’t stand up to scrutiny.
`
`First, while the original August 13, 2020 settlement was reached with the assistance of
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`Judge Phillips, his further assistance and oversight was literally written out of the settlement
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`agreement when it came to determining the proper allocation. (Dkt. 122-1, Addendum § 3.1.)
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`Instead, that allocation was made by two attorneys on the same team with information hand-
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`selected for them. That’s not an arm’s-length negotiation and the result (unsurprisingly) was in
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`the middle of the predetermined amount.
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`Second, Class Counsel’s justifications for the settlement here are heavy on adjectives, but
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`devoid of substance about what discovery showed or what the point of their memo writing on
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`various claim was or what it concluded. (See dkt. 122-7 describing the efforts as “candid”,
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`“collaborative”, “careful”, “critical”, “contributing” and “countless”.) Further, it appears that the
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`confirmatory discovery was focused heavily, if not solely on BIPA. (See dkt. 122-1 § 7.3 noting
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`focus on “collection of biometric data”; § 7.5 noting responding to document requests in a case
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`only asserting BIPA claims.) In fact, the only concrete determination to come from these efforts
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`was to have the expert the parties used in the In re Facebook Biometric Information Privacy
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`Litigation case state what everyone (including the Court) appears to now agree on: TikTok didn’t
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`violate BIPA. (Dkt. 122-6 ¶ 39.) The parties are tellingly silent about any efforts made to verify
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`Plaintiffs’ other allegations of serious misconduct on TikTok’s part.
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`Third, Class Counsel cited significant obstacles to success faced by the non-BIPA claims.
`
`Frankly, it’s hard to see how any of these obstacles to success could be higher than Counsel’s
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`own admission that the BIPA claim is meritless.
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`Ultimately, the only information the classes are left with is that the Illinois class
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`possessing the one claim that’s been proven to be frivolous is getting all the money. That’s not
`
`13
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`

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`Case: 1:20-cv-04699 Document #: 184 Filed: 01/24/22 Page 14 of 16 PageID #:3328
`Case: 1:20-cv-04699 Document #: 184 Filed: 01/24/22 Page 14 of 16 PagelD #:3328
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`fair and at a minimum thatallocation should be readjusted to reflect reality, something that,
`
`oddly, the Settlement appears to allow the Court to do sua sponte. (See dkt. 122-1 § 5.3.2
`
`discussing the allocation betweenclassesstating, “It is not a condition of the Agreement that any
`
`particular multiplier be approved by the Court. Class Representatives and Class Counsel may not
`
`terminate this Agreement based on the Court’s modification of the allocation multiplier.”) Cf
`
`Officersfor Justice v. City & County ofSan Francisco, 688 F.2d 615, 630 (9th Cir. 1982)
`
`(observing that while district courts can suggest modifications to a settlement, “ultimately,it
`
`must consider the proposal as a whole and as submitted” and “the settlement must standorfall as
`
`a whole”).
`
`Nor doesciting the first and near-decade old VPPA settlements as purported comparator
`
`settlements add muchto the analysis. Times have changed, and so has the view ofsufficient
`
`relief for privacy litigation in the public, in the courts, in congress, and with enforcement
`
`agencies. Offering minimal relief (and omitting information about what class members can
`
`plausibly recover from the notice documents)is not sufficient. In terms of recent privacy
`
`settlement with a class size of over a million people generally, this settlement’s gross per person
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`relief (approximately $1.03 for all class members, likely to be significantly less for non-Illinois
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`subclass members) for the national class is deadlast.
`
`TABLE2
`HIGHEST PER-CLASS-MEMBER RECOVERY
`
`IN PRIVACY SETTLEMENTS WITH CLASSSIZES OF ONE MILLION
`OR MORE (SINCE2015)
`
`Ea
`
`Case
`
`$14.75
`
`2
`
`$73.05
`|Birchmeier v. Caribbean Cruise Line, Inc.
`$52.01
`Jabbari v. Wells Fargo & Co.
`
`|4|In re Easysaver RewardsLitig. $29.23
`Snyder v. Ocwen Loan Servicing
`
`14
`
`

`

`(cid:16)(cid:27)(cid:21)(cid:29)(cid:20)(cid:24)(cid:23)(cid:26) (cid:17)(cid:26)(cid:30)(cid:22)(cid:25)(cid:27)(cid:28)(cid:22) (cid:19)(cid:16)(cid:12) (cid:4)(cid:15)(cid:13)(cid:4)(cid:14)(cid:8)(cid:10)(cid:4)(cid:2)(cid:14)(cid:9)(cid:14)(cid:5)(cid:2)(cid:6)(cid:6)(cid:13)(cid:5)(cid:2)(cid:13)(cid:14)(cid:8)(cid:8)(cid:2)(cid:5)(cid:18)(cid:4)(cid:18)(cid:11)(cid:7)(cid:4)(cid:3)(cid:5)(cid:14)(cid:18)(cid:10)
`Case: 1:20-cv-04699 Document #: 184 Filed: 01/24/22 Page 15 of 16 PageID #:3329
`
`6 Edwards v. Hearst Commc’ns, Inc.
`7 Ebarle v. Lifelock, Inc.
`8 Hashw v. Dep’t Stores Nat’l Bank
`In re Uber FCRA Litig.
`9
`10 Medeiros v. HSBC Card Servs.
`11 Wright v. Nationstar Mortg. LLC
`12 Bowman v. Art Van Furniture. Inc.
`13 Lee v. Global Tel*link Corp.
`14 Vasco v. Power Home Remodeling LLC
`15 Charvat v. Resort Mktg. Grp., Inc.
`16 Wilkins v. HSBC Bank Nevada, N.A.
`17 In re Capital One Tel. Consumer Prot. Act Litig.
`18 Duncan v. JPMorgan Chase Bank, N.A.
`19 Markos v. Wells Fargo Bank, N.A.
`20 In re Equifax Inc. Customer Data Sec. Breach Litig.
`
`$12.75
`$12.43
`$10.42
`$7.91
`$7.53
`$5.16
`$5.03
`$4.90
`$4.71
`$4.55
`$4.41
`$4.31
`$4.13
`$3.96
`$3.44
`
`See In re Facebook Biometric Info. Privacy Litig., No. 15-cv-3747, dkt. 499-3 (Rubenstein
`
`Declaration), at 16 Table 2 (N.D. Cal. Oct. 15, 2020).
`
`That leaves only the explanation that TikTok agreed to settle because the pressure to sell
`
`the company in the face of the former President’s threats was so great that it was willing to pay
`
`nearly $100 million (not exactly nuisance value) to make their acquisition more