Case: 1:20-cv-04699 Document #: 207 Filed: 04/13/22 Page 1 of 13 PageID #:4613
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`IN RE: TIKTOK, INC., CONSUMER
`PRIVACY LITIGATION
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`
`
`
`This Document Related to All Cases
`
`
`MDL No. 2948
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`Master Docket No. 20-cv-4699
`
`Judge John Z. Lee
`
`Magistrate Judge Sunil R. Harjani
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`
`
`
`
`OPPOSED1 MOTION TO ACCEPT MOVANTS’ TIMELY AND VALID
`REQUEST FOR EXCLUSION FROM THE SETTLEMENT, IN THE
`ALTERNATIVE, OBJECTIONS TO CLASS SETTLEMENT FOR
`FAILURE TO PROVIDE NOTICE REGARDING THE OPT OUT
`PROCEDURE
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`Movants are 2,254 people each of whom, individually signed and submitted a timely opt
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`out form, requesting to be excluded from the class action settlement. Declaration of Michael Kind
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`(“Kind Decl.”) ¶ 39, Exh. B; Declaration of Yana Hart (“Hart Decl.”) ¶ 3, Exh. E; Declaration of
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`Joshua B. Swigart (“Swigart Decl.”), ¶ 3, Exhs. G, H. The Settlement Administrator wrongfully,
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`and without any authority, determined that Movants’ individually signed exclusion requests were
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`“mass opt outs” and, therefore, not allowed. Although it is unclear why the Settlement
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`Administrator determined these individually signed opt outs to be “mass” opt outs, the only
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`plausible, yet absurd, explanation of their rejection is that the 2,254 opt outs were sent inside of
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`several envelopes as opposed to 2,254 envelopes. No opt outs were jointly signed by multiple
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`1 TikTok, Inc. opposes Movants’ motion; Plaintiffs in this matter have indicated that they take
`“no position” on the instant motion.
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`1
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`Movants. Therefore, the Settlement Administrator wrongfully determined that those exclusion
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`requests were “class opt outs” and therefore not allowed.
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`
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`This motion is based upon the accompanying memorandum of points and authorities, all
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`papers and records on file herein and on such oral arguments which may be presented at the hearing
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`of the motion.
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`I.
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`INTRODUCTION
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`It is fundamental to Due Process that an absent plaintiff be allowed to remove herself from
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`a class action settlement, if she so choses.
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`[W]e hold that due process requires at a minimum that an absent plaintiff
`be provided with an opportunity to remove himself from the class by
`executing and returning an “opt out” or “request for exclusion” form to the
`court.
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`Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
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`Opt-out rights play a central role in class actions because the class actions bind parties who
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`are not central participants, imposing res judicata effect on their individual rights. Therefore, courts
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`absolutely must protect the rights of the absentee class members allowing for them to follow
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`reasonable and clear instructions for submitting their exclusion requests. See id.
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`Movants, following the Court’s Preliminary Approval Order (“Order”) (Dkt. 162) and the
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`class Notice instructions, submitted their individual exclusion requests, within each of the 2,254
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`exclusions stating: (i) the name of the Action; (ii) the person’s or entity’s full name, address, email
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`address and telephone number; (iii) a specific statement of the person’s or entity’s intention to be
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`excluded from the Settlement; (iv) the identity of the person’s or entity’s counsel, if represented;
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`and (v) the person’s or entity’s authorized representative’s signature and the date on which the
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`request was signed. Kind Decl., Exh. B; Hart Decl., Exh. E; Swigart Decl., Exhs. G, H. Each
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`request for exclusion contains specific language, showing the class member’s informed consent,
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`and intent to be excluded from the class settlement. See id. Each Movant has individually signed
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`his or her request for exclusion. Id.
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`2
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`First, each individual request for exclusion provided all of the information required by the
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`class Notice and the Court’s Order. See id. Since Movants complied with the Notice requirements,
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`Due Process requires that their opt out requests be honored. Phillips Petroleum Co. 472 U.S. at
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`812. The Settlement Administrator erroneously deemed these individual opt outs as “mass opt
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`outs” for an unknown reason. In fact, none of the concerns raised in this Court’s September 30,
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`2021, Order, regarding “class opt outs” are present here. Counsel for the Movants did not provide
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`a single signed opt out form for all 2,254 individuals. Each Movant signed an individual exclusion
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`request, that included an unequivocal intent to opt out of the class settlement. Therefore, the Court
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`must accept the Movants’ valid exclusion requests, and grant this instant Motion.
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`Second, if more was required from the absentee plaintiffs who wish to opt out, then the
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`Notice violated Movants’ due process rights by failing to advise them of these additional
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`requirements. See Phillips Petroleum Co., 472 U.S. at 812 (“The notice must be the best
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`practicable, ‘reasonably calculated, under all the circumstances, to apprise interested parties of the
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`pendency of the action and afford them an opportunity to present their objections.”); In re Sys.
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`Software Assocs. Sec. Litig., Master File No. 97 C 177, 2000 U.S. Dist. LEXIS 3071, at *30 (N.D.
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`Ill. Mar. 8, 2000) (“[D]ue process requires that an absent plaintiff be provided with the opportunity
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`to opt out of the proposed class.”); Chaffee v. A&P Tea Co., Nos. 79 C 3625, 1991 WL 5859, at
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`*2 (N.D. Ill. Jan. 16, 1991) (The “notice requirement of Rule 23 is designed to guarantee that those
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`bound by the ruling in a class action were accorded their due process rights to notice and an
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`opportunity to be heard.”). Here, each Movant complied with the Court’s Preliminary Approval
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`Order and the Notice requirements. Nevertheless, the Settlement Administrator “invalidated” these
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`individual exclusion requests. Should the Court determine that the Opt Outs were, in fact, invalid,
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`the Movants object on the grounds that the Notice was not sufficiently clear to meet the Due
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`Process requirements and Rule 23’s requirement for “the best notice that is practicable under the
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`circumstances.” Fed. R. Civ. P. 23.
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`Third, should this Court find any deficiency within the signed opt out requires (which
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`Movants do not believe exists), and in an abundance of caution, Movants request additional time
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`3
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`to cure any such deficiency and/or provide the Movants with an opportunity to be heard. There is
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`no question that Movants acted in good faith and timely submitted their unequivocal exclusions
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`from the class settlement. However, since Movants each unequivocally, and individually,
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`requested to be opted out of the settlement, this Court should rule that Movants’ requests are valid
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`and opt Movants out of the class.
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`II.
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`STATEMENT OF FACTS
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`A. Preliminary Approval Orders.
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`On September 30, 2021, this Court overruled the objects by Brian Behnken and Joshua
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`Dugun, requesting to be allowed to “opt out en masse by means of a single unsigned, electronic
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`filing from their lawyers.” Dkt. 161, pp. 30. The Court recognized the potential for “unauthorized
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`mass opt-outs” and ruled that “individual signatures” were required. Id. “For this reason, courts
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`have routinely enforced the requirement that class members individually sign and return a paper
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`opt-out form as ‘vital’ to ensuring ‘that the class member is individually consenting to opt out.’”
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`Dkt. 161. As the result, the Court ordered:
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`Requests for Exclusion (“Opt-Outs”). Any Settlement Class Member who
`does not wish to participate in the Settlement must submit a Request for
`Exclusion to the Settlement Administrator stating his or her intention to be
`excluded from the Settlement. For a Request for Exclusion to be valid, it
`must set forth: (i) the name of the Action; (ii) the person’s or entity’s full
`name, address, email address and telephone number; (iii) a specific
`statement of the person’s or entity’s intention to be excluded from the
`Settlement; (iv) the identity of the person’s or entity’s counsel, if
`represented; and (v) the person’s or entity’s authorized representative’s
`signature and the date on which the request was signed.
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`Dkt. 162, pp. 6, ¶ 10 (Oct. 1, 2021).
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`Notably, while “individual signatures” were required, this Court did not require people to
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`directly submit their individually signed exclusions requests to the administrator. See id. Nor was
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`counsel banned from submitting such requests. See id. Similarly, there was no requirement that
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`each of the individual opt outs be placed in a separate envelope for mailing; which, if known,
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`Movants would have completed. See id.
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`4
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`B. Class Notice.
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`The Notice to the Class Members provided as follows:
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`EXCLUDING YOURSELF FROM THE SETTLEMENT
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`If you do not want benefits from the Settlement, and you want to keep the
`right to sue or continue to sue Defendants on your own about the legal issues
`in this case, then you must take steps to get out of the Settlement. This is
`called excluding yourself—or it is sometimes referred to as “opting out” of
`the Settlement Class.
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`10. How do I get out of the Settlement?
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`To exclude yourself from the Settlement, you must send a timely letter by
`mail to:
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`Musical.ly and/or TikTok Class Action
`Attn: Exclusion Request
`P.O. Box 58220 Philadelphia, Pennsylvania 19102
`
`
`Your request to be excluded from the Settlement must include: (i) the name
`of the Action; (ii) your full name, address, email address and telephone
`number; (iii) a specific statement of your intention to be excluded from the
`Settlement; (iv) the identity of your counsel, if represented; and (v) your
`signature and the date on which the request was signed.
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`Your exclusion request must be postmarked no later than January 31, 2022.
`You cannot ask to be excluded on the phone, by email, or at the Settlement
`Website.
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`
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`
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`You may opt out of the Settlement Class only for yourself or your minor
`child.
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`Class Notice, Kind Decl., Exh. A. pp. 6.2
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`While the notice required to be signed by claimants (as they are – Exhs. B, E, G, H), there
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`was no limitation on who can facilitate this submission to the Settlement Administrator. Id. To the
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`2 See also Dkt. 196, Exh. B (directing the individuals wishing to opt out to use
`www.tiktokdataprivacysettlement.com website, which contains the same notice within the
`“Important Documents”) (see https://angeion-
`public.s3.amazonaws.com/www.TikTokDataPrivacySettlement.com/docs/TikTok+Long+Form+
`Notice+(website)+v3+draft+20211019.pdf)
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`contrary, the notice anticipated inclusion of “the identity of your counsel, if represented,” and thus,
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`submission of the individual requests via counsel. Id.
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`C. Movants’ Exclusion Requests.
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`After the class action settlement was preliminary approved, Movants each—individually—
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`completed a form that requested to be excluded from this class action.3 Each Movant requested
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`that their respective attorneys submit their letter to the Settlement Administrator. E.g., Kind Decl.,
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`¶¶ 39-43; Hart Decl., ¶¶ 6-9; Swigart Decl., ¶¶ 6-9. Counsel then timely mailed each individual
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`exclusion request to the Settlement Administrator (Angeion Group LLC). Id., Exhs. B, E, G, H. A
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`copy was also sent to the class counsel, and/or defense counsel. Id.
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`Specifically, Kind Law and Freedom Law Firm submitted 419 individual exclusion
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`requests on January 21, 2022. Kind Decl., Exh. B. Clarkson Law Firm submitted 433. Hart Decl.,
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`Exh. E. Swigart Law Group submitted 1,402 opt outs. Swigart Decl., Exhs. G, H. While many of
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`the requests were provided to the Settlement Administrator at once, each request was signed and
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`submitted by each Movant separately4, on a separate paper or form. Kind Decl., ¶¶ 39-43; Hart
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`Decl., ¶¶ 6-9; Swigart Decl., ¶¶ 6-9. Each law firm subsequently received a letter from the
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`3 Electronic signatures have been repeatedly accepted by courts, including the U.S. Supreme Court.
`See e.g. Becker v. Montgomery, 532 U.S. 757, 763, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001)
`(“We do not doubt that the signature requirement can be adjusted to keep pace with technological
`advances.”); Flakes v. Carr, No. 21-2464, 2022 U.S. App. LEXIS 4701, at *3 (7th Cir. Feb. 22,
`2022) (rejecting argument that an electronic signature was invalid as a “non-starter:” “”Congress
`has made clear that a signature ‘may not be denied legal effect . . . solely because it is in electronic
`form.’”) (citing 15 U.S.C. § 7001(a)(1); Princeton Indus., Prods. v. Precision Metals Corp., 120
`F. Supp. 3d 812, 819-822 (N.D. Ill. 2015) (discussing series of cases to explain that Illinois has its
`own version of laws allowing for electronic signatures and even acceptances of the “signature
`block at the end of an email”); Just Pants v. Wagner, 247 Ill.App.3d 166, 173, 617 N.E.2d 246,
`251, 187 Ill. Dec. 38 (1st Dist. 1993)(“a writing has been considered ‘signed’ for the purpose of
`the statute even if it merely contains something which manifests that the instrument has been
`executed . . . by the party to be charged by it.”). Importantly, the process of opting out should not
`be more burdensome than the process of participating in the case.
`4 The law firms maintain a Certificate of Completion, verifying each individual digital signature
`which depicts their own IP addresses from which each client accessed the signed form, the date
`they viewed and signed the form on, and the device that was used to sign the form (for instance
`“mobile” device). Hart Decl., ¶ 12; Kind Decl., ¶ 44; Swigart Decl., ¶ 11.
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`6
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`appointed settlement administrator, Angeion Group LLC, stating that “[p]ursuant to Section 10 of
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`the Settlement Agreement . . . the Exclusion Requests you submitted in ‘mass’ . . . is not valid.”5
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`Kind Decl., Exh. C; Hart Decl., Exh. F; Dkt. 196 pp. 21-23.
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`D. Movants’ Response to Angeion Group LLC
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`On March 1, 2022, counsel jointly submitted a response to the Settlement Administrator.
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`Kind Decl., Exh. D. In the letter, counsel asked what additional information the Settlement
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`Administrator would need to reverse its baseless decision. Id. Counsel detailed that Movants had
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`complied with the instructions in the Class Notice and both preliminary approval Orders. Id.
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`Angeion Group LLC did not respond. Hart Decl., ¶ 14; Swigart Decl., ¶ 14. As a result, this motion
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`follows.
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`III. ARGUMENT
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`Movants respectfully request that this Court accept their exclusion requests because: (1)
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`they properly complied with the class Notice requirements; (2) their exclusion requests were not
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`“class opt outs;” (3) Movants’ requests for exclusion should be honored under the Excusable
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`Neglect doctrine; and (4) If more was required, the Notice was not sufficiently clear to provide
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`Due Process.
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`A. The requests for exclusion provided all the information required by the class Notice.
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`Due process requires that this Court accept Movants’ requests to opt out because Movants
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`complied with the class Notice. All class members in a Rule 23(b)(3) action are entitled to due
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`process, including notice. Phillips Petroleum, 472 U.S. 797, 810-813. The procedural due process
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`rights of these members include an opportunity to be excluded from the action. Id. Here, in relevant
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`part, the Notice provided:
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`Your request to be excluded from the Settlement must include: (i) the name
`of the Action; (ii) your full name, address, email address and telephone
`number; (iii) a specific statement of your intention to be excluded from the
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`5 Although Clarkson has not received all of the remaining notices for all of the 433 clients stating
`that the opt outs were invalid, the Settlement Administrator appears to have determined all of
`Clarkson’s clients’ opt outs to be invalid. See Dkt. 196, ¶¶ 39-40.
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`Settlement; (iv) the identity of your counsel, if represented; and (v) your
`signature and the date on which the request was signed.
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`Your exclusion request must be postmarked no later than January 31, 2022.
`You cannot ask to be excluded on the phone, by email, or at the Settlement
`Website.
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`You may opt out of the Settlement Class only for yourself or your minor
`child.
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`Kind Decl., Exh. A. See also Court Order, Dkt. 162.
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`It cannot be disputed that the exclusion requests fully complied with the requirements of the
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`Notice (or this Court’s Order Dkts. 161, 162). See In re Navistar Maxxforce Engines Mktg., 990
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`F.3d 1048, 1050 (7th Cir. 2021) (holding that where a judge “specified in excruciating detail how
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`opting out is to be accomplished” the court does not need to accept exclusion requests that variated
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`from the court’s set procedures). While the notice required “your signature,” there was no
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`limitation on who can submit the request. Kind Decl., Exh. A. To the contrary, the notice
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`anticipated inclusion of “the identity of your counsel, if represented.” Id. In fact, in the
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`Administrator’s letter rejecting Movants’ opt outs, the Administrator does not claim that Movants
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`failed to comply with the Notice. Kind Decl., Exh. C; Hart Decl., Exh. F; dkt. 196 pp. 21-23 (does
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`not even mention the class Notice). Thus, Movants fully complied with the Notice and Court’s
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`requirements. Accordingly, their requests to opt out must be honored.
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`B. Movants’ exclusion requests were not “class opt outs.”
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`Movants fully satisfied this Court’s concerns regarding “class opt outs,” discussed in this
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`Court’s September 30, 2021, Order. In its Memorandum Opinion and Order (Dkt. 161) signed on
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`September 30, 2021, this Court overruled Brian Behnken’s and Joshua Dugan’s objections that
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`“they should be able to opt out en masse by means of a single unsigned, electronic filing from their
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`lawyers.” Id. (emphasis added). In overruling the objection, this Court correctly held that it was
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`“vital” that “the class member is individually consenting to opt out.” Id. (citation omitted)
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`Therefore, this Court found that each class member would need to individually consent to their
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`exclusion request, which was done here.
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`Each Movant, individually, completed a request to be excluded from this class action. E.g.,
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`Kind Decl., Exh. B; Hart Decl., Exh. E, Swigart Decl., Exhs. G, H. Each request includes a
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`statement that “I would like to be excluded from the class action settlement reached in In Re
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`TikTok, Inc., Consumer Privacy Litigation: 20-cv-4699 [MDL 2948], Northern District of Illinois
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`(Eastern Division) [“Class Action”]” - or a similar statement. Id. Each of the opt out requests
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`include a heading “Tik Tok Class action Opt Out Request.” Id. Each client consented, and
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`requested, for counsel to submit their opt out request to the Settlement Administrator. Id. In the
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`419 opt outs submitted from Kind Law and 433 opt outs submitted by Clarkson, the following
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`statement was included in most of the opt out requests:
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`The specific reason for exclusion: I do not wish to be a part of the
`settlement class, and I would like to retain the right to file my own
`individual lawsuit against TikTok, Inc., if I believe it to be necessary. I
`understand that by opting out, I am giving up my right to receive any
`payment under the settlement. I have not been coerced by anyone to opt out
`of this Class Action, and I choose to opt out of my own free will.
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`Id. at Exh. B, E. Each Movant requested that their respective attorney submit their letter to the
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`Settlement Administrator. E.g., Kind Decl., ¶¶ 39-43; Hart Decl., ¶¶ 6-9; see similar Swigart Decl.,
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`¶¶ 6-9.
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`The Administrator acted without authority and in bad faith in refusing to accept Movants’
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`requests, based on the Notice, Settlement Agreement, and the Court’s Order. There is absolutely
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`nothing in the movants’ signed separate exclusion requests that leaves any doubt of their
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`unequivocal desire to opt out.
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`Simply put, Movants did not “opt out en masse by means of a single unsigned, electronic
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`filing from their lawyers,” and instead submitted individual opt outs in order to comply with the
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`Court’s September 30 Order. Council of Social Work Education, Inc. v. Texas Instruments, 105
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`F.R.D. 68, 70 (N.D. Texas 1985) (“The decision to be in or out of a class is solely the decision of
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`the one whose rights are to be foreclosed by class litigation.”).
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`Therefore, the concerns raised in this Court’s September 30 Order are not present here,
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`where each absentee class member signed their own exclusion forms unequivocally expressing
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`their intent to opt out. See In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 241 (3d Cir. 2002)
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`(involving lawyers who wanted to “effect mass opt outs of all of their clients with the filing of a
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`single notice”); In re CenturyLink Sales Practices & Sec. Litig., No. 17-2795 (MJD/KMM), 2020
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`U.S. Dist. LEXIS 114110, at *7 (D. Minn. June 29, 2020) (rejecting 2,000 opt outs because of the
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`“failure to include individual signatures”); In re Oil Spill by Oil Rig Deepwater Horizon, 910 F.
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`Supp. 2d 891, 937 (E.D. La. 2012) (invalidating 9,460, requests because “they were not signed by
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`the individual wishing to be excluded” but “were signed by counsel purporting to act on behalf of
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`the purported Class Members”); see also Martin v. Kan. City Chiefs Football Club, LLC (In re
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`NFL Players' Concussion Injury Litig.), No. 2:12-md-02323-AB, 2019 U.S. Dist. LEXIS 652, at
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`*18 (E.D. Pa. Jan. 3, 2019) (the movant’s ex-husband’s opt out did not automatically opt out the
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`movant since individual opt outs were required); Seacor Holdings, Inc. v. Mason (In re Deepwater
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`Horizon), 819 F.3d 190, 192 (5th Cir. 2016) (involving a class member who made no reasonable
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`indication of a desire to opt out of the settlement class because their attorney failed to discuss the
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`need to opt out with his client before the opt-out deadline); In re Ins. Brokerage Antitrust Litig.,
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`282 F.R.D. 92, 118 (D.N.J. 2012) (class member entity was not allowed to unilaterally opt out
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`other class members).
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`Here, Movants each individually signed their opt out request and specifically said that they
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`wanted to be excluded. This Court must honor Movants’ timely exclusion request.
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` C. If more was required, the Notice was not sufficiently clear to provide Due Process.
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`Due Process precludes a finding that Movants were required to do more than what the
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`Notice required. “For any class certified under Rule 23(b)(3) . . . the court must direct to class
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`members the best notice that is practicable under the circumstances, including individual notice to
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`all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); Phillips
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`Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985) (Each class
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`member has a due process right to opt out of a class settlement.); Breslow v. Prudential-Bache
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`Properties, Inc., 1994 U.S. Dist. LEXIS 12325, 1994 WL 478611 at *2 (N.D. Ill. Sept. 1, 1994);
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`Gert v. Elgin Nat'l Indus. Inc., 773 F.2d 154, 159 (7th Cir. 1985) (When a class has been certified
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`under Rule 23(b)(3), notice and an opportunity to opt out must be sent to absent class members.).
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`The purpose of Rule 23(c)(2) is to afford members of the class due process, thereby
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`guaranteeing class members the opportunity to be excluded from the class action and not be bound
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`by any subsequent judgment. Id. (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-74, 40
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`L. Ed. 2d 732, 94 S. Ct. 2140 (1974)); see also McCubbrey v. Boise Cascade Home & Land Corp.,
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`71 F.R.D. 62, 70 (N.D. Cal. 1976) (“The serious due process implications of holding an absent
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`member bound by a class adjudication demand that we look beyond formalistic procedures to
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`evaluate whether a class member has reasonably expressed a desire to be excluded from a class
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`suit.”); Council of Social Work Education, Inc. v. Texas Instruments, 105 F.R.D. 68, 70 (N.D.
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`Texas 1985) (“‘[C]onsiderable flexibility’ should be used in determining what constitutes an
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`effective request for exclusion;” “[i]t need only be sufficiently unequivocal and timely to be
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`counted.”); see also In re Four Seasons Securities Laws Litigation, 493 F.2d 1288, 1291 (10th
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`Cir.1974) (rejecting a “rule that in order to opt out the request must be explicit” and instead holding
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`that a “reasonable indication” of intent to opt out is sufficient); Plummer v. Chemical Bank, 668
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`F.2d 654, 657 n. 2 (2d Cir.1982) (“Any reasonable indication of a desire to opt out should
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`suffice.”).
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`Here, the Notice did not inform absent class members of any additional requirements,
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`including precluding their counsel from submitting these requests.6 Therefore, if such a
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`6 Furthermore, precluding counsel from submitting their clients’ individually signed opt out
`requests would be unduly burdensome and unreasonably interfere with attorney-client
`relationships, and their absolute right to retain counsel of their choice. Importantly, the Court “must
`be especially wary of unequal treatment among class segments” See Arena v. Intuit Inc., No. 19-
`cv-02546-CRB, 2021 U.S. Dist. LEXIS 41994, at *35 (N.D. Cal. Mar. 5, 2021) (citing In re
`Bluetooth Headset Prods. Liability Litig., 654 F.3d 935, 946 (9th Cir. 2011) (rejecting proposed
`opt out procedure as unduly burdensome especially where the class members’ expected recovery
`was minimal, and noting that heightened opt out procedures are only proper in cases where class
`members’ recovery is in at least thousands of dollars); Espenscheid v. DirectSat USA, LLC, 705
`F.3d 770, 772 (7th Cir. 2013) (noting the “obvious” difference between class actions and collective
`actions is the “need to protect the right of Rule 23(b)(3) class members to opt out.”)
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`Case: 1:20-cv-04699 Document #: 207 Filed: 04/13/22 Page 12 of 13 PageID #:4624
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`requirement is imposed after-the-fact, then this Court should find that the Notice was deficient
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`under Rule 23(c)(2) and Due Process. Therefore, the Court should either (a) invalidate any
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`additional requirements; and/or (b) require that the new notice be submitted to the class members
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`and allow sufficient time for the class members to meet these requirements and provides absentee
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`members with the right to challenge these additional requirements. See e.g., Kaufman v. Am.
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`Express Travel Related Servs. Co., 264 F.R.D. 438, 445 (N.D. Ill. 2009) (granting leave to proceed
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`with an amended notice).
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`D. In the alternative, Movants’ request additional time under Rule 6.
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`Assuming arguendo, if this Court finds that Movants failed to properly opt out in
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`accordance with the Notice or Court’s Orders, this Court should allow Movants to cure any defect7
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`under Rule 6’s excusable neglect doctrine. Under Rule 6(b), “[w]hen an act may or must be done
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`within a specified time, the court may, for good cause, extend the time: . . . on motion made after
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`the time has expired if the party failed to act because of excusable neglect.” Fed R. Civ P. 6(b);
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`Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 388 (1993); Fox v. Iowa
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`Health Sys., No. 18-cv-327-jdp, 2021 U.S. Dist. LEXIS 36880, at *5 (W.D. Wis. Feb. 26, 2021)
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`(citing Snyder v. Ocwen Loan Servicing, LLC, No. 14 C 8461, 2019 U.S. Dist. LEXIS 80926, 2019
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`U.S. Dist. LEXIS 80926, 2019 WL 2130079, at *10 (N.D. Ill. May 14, 2019) (allowing late opt-
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`outs without requiring motions from class members themselves under the court’s “considerable
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`discretion to allow late . . . opt-outs to go forward”); see also Silber v. Mabon, 18 F.3d 1449, 1455
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`(9th Cir. 1994).
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`Here, Movants all signed individual opt outs and acted in good faith and timely providing
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`the requested information. Therefore, as discussed above, their opt out requests should be honored.
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`However, out of an abundance of caution, Movants request that should this Court find any defect
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`in their opt out requests, that this Court allow movants additional time to cure any such defects.
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`7 The existence of any defects is disputed.
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`12
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`Case: 1:20-cv-04699 Document #: 207 Filed: 04/13/22 Page 13 of 13 PageID #:4625
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`IV. Conclusion
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` This Court should grant the Movants’ motion accepting their timely opt-out requests as
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`valid and compliant with the Court’s order and the Notice. Each Movant has unequivocally stated
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`that they wish to be excluded from the settlement by executing their separate requests to opt out,
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`and provided sufficient information in good faith. For the foregoing reasons, the Settlement
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`Administrator’s unilateral and erroneous decision to reject Movants’ opt out requests should be
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`overruled.
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`Dated: April 13, 2022.
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`Respectfully submitted,
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`CHICAGO CONSUMER LAW CENTER, P.C.
`
`/s/ Bryan Paul Thompson
`Bryan Paul Thompson
`Bryan.Thompson@cclc-law.com
`Robert W. Harrer
`Rob.Harrer@cclc-law.com
`33 N. Dearborn St., Suite 400
`Chicago, IL 60602
`Tel: 312.858.3239 | Fax: 312.610.5646
`
`CLARKSON LAW FIRM, P.C.
`Yana Hart (pro hac vice forthcoming)
`yhart@clarksonlawfirm.com
`22525 Pacific Coast Highway
`Malibu, CA 90265
`Tel: 213.788.4050
`Fax: 213.788.4070
`
`KIND LAW
`Michael Kind (pro hac vice forthcoming)
`8860 S. Maryland Parkway, Suite 106
`Las Vegas, NV 89123
`Tel: 702.337.2322
`Fax: 702.329.5881
`
`SWIGART LAW GROUP, APC
`Joshua Swigart (pro hac vice forthcoming)
`2221 Camino del Rio South, Ste. 308
`San Diego, CA 92108
`Tel. 619.728.6348
`Fax. 866.219.8344
`
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`13
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