Case: 1:20-cv-04699 Document #: 212 Filed: 04/14/22 Page 1 of 27 PageID #:11206
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`IN RE: TIKTOK, INC.,
`CONSUMER PRIVACY
`LITIGATION,
`
`
`
`This document relates to all cases
`
`
`MDL No. 2948
`
`Master Docket No. 20 C 4699
`
`Judge John Z. Lee
`
`Magistrate Judge Sunil R. Harjani
`
`
`OBJECTOR DENNIS LITTEKEN’S OPPOSITION
`TO FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT
`AND OBJECTION TO CLASS COUNSEL’S FEES
`
`

`

`Case: 1:20-cv-04699 Document #: 212 Filed: 04/14/22 Page 2 of 27 PageID #:11207
`
`TABLE OF CONTENTS
`
`
`I.
`
`II.
`
`A Settlement Where 98.6% of the Class Gets Nothing Isn’t Fair and Shouldn’t be
`Approved ............................................................................................................................2
`
`Class Counsel’s Publication-Focused Notice Plan Had Predictably Poor Results and
`the Direct Notice Was Insufficient....................................................................................5
`
`In the Seventh Circuit, Class Counsel’s Fee Brief Must be Filed Before the
`Objection Deadline. It Wasn’t ..........................................................................................7
`
`IV. Class Counsel’s Explanations of the Process Leading to the Settlement and the
`Allocation Do Not Instill Confidence That the Settlement is Fair ...............................10
`
`V. Mr. Litteken Properly Objected to Class Counsel’s Attempt to Inhibit Those Who
`are Critical of the Settlement ..........................................................................................13
`
`VI. Class Counsel’s Percentage Fee Request Ignores Seventh Circuit Law and Is
`Undermined by an Unbelievable Lodestar Amount .....................................................13
`
`CONCLUSION ............................................................................................................................20
`
`
`
`
`III.
`
`
`
`
`
`
`
`
`
`
`
`
`i
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`

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`TABLE OF AUTHORITIES
`
`
`United States Appellate Court Cases
`
`Camp Drug Store, Inc. v. Cochran Wholesale Pharm., Inc.,
`
`897 F.3d 825 (7th Cir. 2018) .............................................................................................18
`
`Creative Montessori Learning Centers v. Ashford Gear LLC,
`
` 662 F.3d 913 (7th Cir. 2011) ............................................................................................11
`
`In re Equifax Inc. Customer Data Sec. Breach Litig.,
`
`999 F.3d 1247 (11th Cir. 2021) ...........................................................................................3
`
`In re Nat’l Football League Players Concussion Inj. Litig.,
`821 F.3d 410 (3d Cir. 2016).................................................................................................9
`
`
`In re Subway Footlong Sandwich Mktg. & Sales Pracs. Litig.,
`
`869 F.3d 551(7th Cir. 2017) ..............................................................................................12
`
`In re Sw. Airlines Voucher Litig.,
`
`799 F.3d 701 (7th Cir. 2015) .............................................................................................11
`
`In re Synthroid Mktg. Litig.,
`
`264 F.3d 712 (7th Cir. 2001) .............................................................................................14
`
`In re Synthroid Mktg. Litig.,
`
`325 F.3d 974 (7th Cir. 2003) .............................................................................................17
`
`In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig.,
`
`895 F.3d 597 (9th Cir. 2018) ...............................................................................................9
`
`Kaufman v. Am. Express Travel Related Servs. Co., Inc.,
`
`877 F.3d 276 (7th Cir. 2017) ...............................................................................................7
`
`Keil v. Lopez,
`
`862 F.3d 685 (8th Cir. 2017) ...............................................................................................9
`
`Pearson v. NBTY, Inc.,
`
`772 F.3d 778 (7th Cir. 2014) .............................................................................................14
`
`Redman v. RadioShack Corp.,
`
`768 F.3d 622 (7th Cir. 2014) ..................................................................................... passim
`
`Silverman v. Motorola, Inc.,
`
`739 F.3d 956 (7th Cir. 2013) .......................................................................................15, 16
`
`
`
`
`ii
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`

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`
`Wong v. Accretive Health, Inc.,
`
`773 F.3d 859 (7th Cir. 2014) .........................................................................................2, 12
`
`United States District Court Cases
`
`Aranda v. Caribbean Cruise Line, Inc.,
`
`No. 12 C 4069, 2017 WL 1369741 (N.D. Ill. Apr. 10, 2017)............................................16
`
`Breckenridge Brewery of Colorado, LLC v. Xcel Energy, Inc.,
`
`No. 06-cv-01110-REB-MEH, 2021 WL 4060386 (D. Colo. July 23, 2021) .....................19
`
`Crumpton v. Octapharma Plasma, Inc.,
`
`19-cv-8402 (N.D. Ill. Feb. 16, 2022) ...................................................................................3
`
`Douglas v. W. Union Co.,
`
`328 F.R.D. 204 (N.D. Ill. 2018) .........................................................................................19
`
`E.R. v. TikTok,
`
`No. 1:20-cv-02810, dkt. 1 (N.D. Ill. May 8, 2020) ............................................................20
`
`Higgins v. TV Guide Mag., LLC,
`
`No. 15-cv-13769 (E.D. Mich. Dec. 5, 2018) .......................................................................3
`
`In re Anthem, Inc. Data Breach Litig.,
`
`No. 15-MD-02617-LHK, 2018 WL 3960068 (N.D. Cal. Aug. 17, 2018) .........................14
`
`In re Broiler Chicken Antitrust Litigation,
`
`No. 16 C 8637, 2021 WL 5709250 (N.D. Ill. Dec. 1, 2021) .............................................15
`
`In re Capital One TCPA Litig.,
`
`80 F. Supp. 3d 781 (N.D. Ill. 2015) ........................................................................... passim
`
`In re Facebook Biometric Info. Priv. Litig.,
`No. 15-cv-3747-JD (N.D. Cal.) ................................................................................. passim
`
`
`In re Facebook Biometric Info. Priv. Litig.,
`
`522 F. Supp. 3d 617 (N.D. Cal. Feb. 26, 2021) ...................................................................3
`
`In re Trans Union Corp. Priv. Litig.,
`
`No. 00 C 4729, 2008 WL 11358136 (N.D. Ill. Jan. 3, 2008) ..............................................5
`
`In re Trans Union Corp. Priv. Litig.,
`
`No. 00 C 4729, 2009 WL 4799954 (N.D. Ill. Dec. 9, 2009) .............................................17
`
`In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig.,
`
`No. MDL 2672 CRB (JSC), 2016 WL 6248426 (N.D. Cal. Oct. 25, 2016) ........................9
`
`
`
`iii
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`

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`
`Khoday v. Symantec Corp.,
`
`No. 11-cv-180 (JRT/TNL), 2016 WL 1637039 (D. Minn. Apr. 5, 2016) .........................19
`
`Moeller v. American Media, Inc.,
`
`No. 16-cv-11367 (E.D. Mich. Sept. 28, 2017) .....................................................................4
`
`Powers v. Filters Fast, LLC,
`
`No. 20-CV-982-JDP, 2022 WL 461996 (W.D. Wis. Feb. 15, 2022) ..................................5
`
`Raden v. Martha Stewart Living Omnimedia, Inc., et al.,
`
`No. 16-cv-12808 (E.D. Mich. July 17, 2019) ......................................................................4
`
`Redman v. RadioShack Corp.,
`
`No. 11 C 6741, 2014 WL 497438 (N.D. Ill. Feb. 7, 2014) ..................................................8
`
`Ruppel v. Consumers Union of United States, Inc.,
`
`No. 16-cv-02444 (S.D.N.Y. Dec. 4, 2018) ..........................................................................4
`
`Tait v. BSH Home Appliances Corporation,
`
`No. SACV 10-0711-DOC (ANx), 2015 WL 4537463 (C.D. Cal. July 27, 2015) .............19
`
`Thome v. NOVAtime Tech., Inc.,
`
`No. 19-cv-6256 (N.D. Ill. Mar. 8, 2021)..............................................................................3
`
`State Circuit Court Cases
`
`Kusinski v. ADP LLC,
`
`No. 2017-CH-12364 (Cir. Ct. Cook Cnty. Feb. 10, 2021) ..................................................3
`
`Sekura v. L.A. Tan Enters., Inc.,
`
`No. 2015-CH-16694 (Cir. Ct. Cook Cnty. Dec. 1, 2016) ....................................................3
`
`Miscellaneous Authority
`
`Cal. Bus. & Prof. Code § 6149 ......................................................................................................13
`
`Fed. R. Civ. P. 23 ................................................................................................................... passim
`
`Fed. R. Evid. 602 .............................................................................................................................6
`
`Fed. Trade Comm’n,
`
`Consumers and Class Actions: A Retrospective and Analysis of Settlement Campaigns
`(Sept. 2019), available at https://www.ftc.gov/system/files/documents/reports/consumers-
`class-actions-retrospective-analysis-settlement-
`campaigns/class_action_fairness_report_0.pdf ...................................................................2
`
`
`
`iv
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`

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`
`
`Tik Tok Long Form Notice, available at
`https://angeion-
`public.s3.amazonaws.com/www.TikTokDataPrivacySettlement.com/docs/TikTok+Long
`+Form+Notice+(website)+v3+draft+20211019.pdf ........................................................7, 8
`
`
`
`
`
`
`
`v
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`Case: 1:20-cv-04699 Document #: 212 Filed: 04/14/22 Page 7 of 27 PageID #:11212
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`
`
`It is now clear that Mr. Litteken isn’t alone in his view that this settlement is unfair.
`
`98.6% of the Class apparently thought the terms were so bad they didn’t bother filing a claim.
`
`Either that or the notice plan was so ineffectual that the Class didn’t learn about their rights in the
`
`first place. This “unprecedented” reaction from the Class didn’t even meet the embarrassing
`
`1.5% claims goal Class Counsel set for themselves. As recent trends in class action claims rates
`
`make clear, this poor showing is far below the double-digit participation rates that should have
`
`occurred had Class Counsel cared to put in the effort. The Court shouldn’t approve a deal where
`
`98.6% of the Class gets nothing and the lawyers get more than $30 million.
`
`
`
`Attempting to justify the notice plan’s resulting 1.4% claim rate, Class Counsel point to
`
`various metrics to claim both the direct notice and media publication “reached” a sufficient
`
`number of Class Members to satisfy due process. But the declaration they point to instead
`
`demonstrates that neither the direct individual notice nor media publication meet the bare
`
`minimum 70% percent threshold. Worse, the Settlement Administrator’s declaration appears to
`
`demonstrate that the “reach” of the publication notice is less than half of what Class Counsel
`
`represent to the Court. All told, Class Counsel have failed to show the Class received sufficient
`
`notice of the settlement, which may account for the unacceptably low response rate. Given the
`
`insufficient notice and Class Counsel’s failure to file their fee petition ahead of the objection
`
`deadline in violation of Seventh Circuit precedent, more notice should be conducted before this
`
`settlement can be approved, if it warrants approval at all.
`
`
`
`And given the apparent collusion surrounding the settlement, approval should be
`
`withheld or at a minimum the allocation between the classes adjusted. Class Counsel have
`
`effectively no answer to how it’s fair for the Illinois subclass to get 84% of the settlement funds
`
`
`
`1
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`

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`when Class Counsel confirmed through discovery that TikTok’s warranty that its app didn’t ever
`
`collect biometrics in violation of BIPA was true.
`
`
`
`Should the Court reach the issue of Class Counsel’s fees, the percentage request runs
`
`afoul of Seventh Circuit guidance for a fund of this size, and their claimed lodestar of over $14
`
`million can’t be taken seriously for a case where nothing of substance has happened. Applying
`
`the Seventh Circuit’s approach to funds of this size yields at most $16,916,760.02. Ordering the
`
`production of Class Counsel’s billing records and a subsequent review would likely produce an
`
`award of much less.
`
`I.
`
`
`
`
`A Settlement Where 98.6% of the Class Gets Nothing Isn’t Fair and Shouldn’t be
`Approved.
`
`Class Counsel boast that the “unprecedented” 1.2 million individuals that filed claims,
`
`representing just 1.4% of the Class, shows that the settlement has “substantial support”
`
`warranting final approval. To the contrary, “the reaction of members of the class to the
`
`settlement” is far below what should be acceptable and compels denial of approval at this time.1
`
`See Wong v. Accretive Health, Inc., 773 F.3d 859, 863 (7th Cir. 2014).
`
`
`
`As a recent Federal Trade Commission study found, claims rates in consumer class
`
`actions generally are far higher than the 1.4% here. See Fed. Trade Comm’n, Consumers and
`
`Class Actions: A Retrospective and Analysis of Settlement Campaigns 11 (Sept. 2019) (“Across
`
`all cases in our sample requiring a claims process, the median calculated claims rate was 9%, and
`
`the weighted mean (i.e., cases weighted by the number of notice recipients) was 4%.”).
`
`
`While Mr. Litteken continues his focus on the subpar claims rate, it’s also noteworthy
`1
`that Class Counsel and the Settlement Administrator assumed the role of this Court and
`unilaterally deemed invalid over 4,000 requests to opt out of the settlement. (Dkt. 196 ¶ 39.)
`These 4,000 Class Members and their counsel clearly believed that the settlement was inadequate
`and that they could do better in individual arbitrations or litigation.
`
`
`
`2
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`

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`Professor’s Rubenstein’s declaration in In re Facebook Biometric Information Privacy
`
`Litigation, No. 15-CV-3747 (N.D. Cal.) (“Facebook BIPA”), cited by the Class Representatives
`
`(dkt. 195 at 30), is not to the contrary. Professor Rubenstein’s general conclusion was “that the
`
`average claims rate for the largest sized classes is 5.7%,” which looked at classes larger than
`
`286,000. Facebook BIPA, dkt. 517-2. Class Counsel claim that his analysis of the very top tier,
`
`the limited 7 case sample size used in his report where the class was larger than 2,682,347
`
`members, would anticipate a 1.4% claims rate. But when the 22% claims rate from the Facebook
`
`BIPA case is added to the analysis that average increases to 3.975%. Id. While the claims rates
`
`predicted by Professor Rubenstein are still very low, they are 2.8 to 6.4 times higher than what
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`Class Counsel achieved here, i.e., they should have got 3,360,000 to 8,900,000 claims from their
`
`89-million-member class.
`
`
`
`The 1.4% claims rate is also contrary to the recent trend of double-digit claims rates in
`
`privacy class actions, including in cases with millions of class members. See In re Facebook
`
`Biometric Info. Priv. Litig., No. 15-cv-3747-JD, 522 F. Supp. 3d 617, 620 (N.D. Cal. Feb. 26,
`
`2021) (22% claims rate in 6.9-million-member class); In re Equifax Inc. Customer Data Sec.
`
`Breach Litig., 999 F.3d 1247, 1259 (11th Cir. 2021) (noting claims rate exceeded 10% of 147
`
`million member class); Crumpton v. Octapharma Plasma, Inc., No. 19-cv-8402, dkt. 92 (N.D.
`
`Ill. Feb. 16, 2022) (Kendall, J.) (“The Court further acknowledges the Parties achieved an
`
`excellent claims rate of 22% as a result of the Notice program.”); Sekura v. L.A. Tan Enters.,
`
`Inc., No. 2015-CH-16694 (Cir. Ct. Cook Cnty. Dec. 1, 2016) (15% claims rate); Kusinski v. ADP
`
`LLC, No. 2017-CH-12364 (Cir. Ct. Cook Cnty. Feb. 10, 2021) (13% claims rate); Thome v.
`
`NOVAtime Tech., Inc., No. 19-cv-6256, dkt. 90 (N.D. Ill. Mar. 8, 2021) (10% claims rate);
`
`Higgins v. TV Guide Mag., LLC, No. 15-cv-13769, dkt. 79 at 1 (E.D. Mich. Dec. 5, 2018) (15%
`
`
`
`3
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`

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`claims rate for privacy settlement under Michigan law); Raden v. Martha Stewart Living
`
`Omnimedia, Inc., et al., No. 16-cv-12808, dkt. 52 at 1 (E.D. Mich. July 17, 2019) (13% claims
`
`rate for privacy settlement under Michigan law); Ruppel v. Consumers Union of United States,
`
`Inc., No. 16-cv-02444, dkt. 111 (S.D.N.Y. Dec. 4, 2018) (16.8% claims rate for privacy
`
`settlement under Michigan law); Moeller v. American Media, Inc., No. 16-cv-11367, dkt. 42
`
`(E.D. Mich. Sept. 28, 2017) (10% claims rate for privacy settlement under Michigan law). The
`
`majority of the cases Class Counsel rely on to support the reasonableness of their 1.4% claims
`
`rate come from an era when certain counsel either ignored how many class members participated
`
`or sought to keep claims low to artificially inflate the individual payments made to class
`
`members. As noted above, that era should end, and the Court should demand greater
`
`participation to earn final approval.
`
`
`
`In the end, Class Counsel achieved what they set out to do: get a low claims rate that
`
`allows them to claim the relief to the Class is comparable to other settlements. And as Mr.
`
`Litteken has argued, if Class Counsel achieved a reasonable claims rate, the relief to the Class is
`
`inadequate and unfair. (Dkts. 132 at 9, 184 at 14-15.) Instead of recognizing this as a failure and
`
`working to increase the number of Class Members interested in participating in their settlement,
`
`Class Counsel did the bare minimum, content with poor results. Class Counsel could have gone
`
`the extra mile and obtained more email addresses, and they could have sent reminder notice to
`
`the emails and reminder notice to the in-app inbox to increase participation. But if a 1.4% claims
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`rate is acceptable, they have no incentive to try. Because additional notice is required as a result
`
`of Class Counsel’s failure to satisfy due process and to file its fee petition before the objection
`
`deadline (more on that below), these steps should now be taken at Class Counsel’s expense.
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`4
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`II.
`
`
`
`
`Class Counsel’s Publication-Focused Notice Plan Had Predictably Poor Results and
`the Direct Notice Was Insufficient.
`
`Even after achieving a claims rate under the 1.5% they had predicted, Class Counsel and
`
`their selected administrator still claim the notice campaign was successful. It plainly was not.
`
`The Class should not have to pay $3,276,268.43 for a notice plan that resulted in 98.6% of the
`
`Class getting nothing.
`
`
`
`But determining what notice worked and what didn’t is impossible to tell from the limited
`
`information provided by the Settlement Administrator. See Powers v. Filters Fast, LLC, No. 20-
`
`CV-982-JDP, 2022 WL 461996, at *1 (W.D. Wis. Feb. 15, 2022) (“The administrator’s
`
`explanation of its notice procedures is rather vague. It doesn't explain how it determined that 89
`
`percent of the class received notice. And though it provided a copy of the legal notice
`
`accompanying the emails it sent the class, it doesn’t provide a sample of the actual email it sent,
`
`making it impossible for the court to determine whether the email adequately communicated to
`
`class members that they were receiving notice of a class settlement.”). Here, what is provided
`
`fails to establish that the requisite individual notice was provided to the Class. See, e.g., In re
`
`Trans Union Corp. Priv. Litig., No. 00 C 4729, 2008 WL 11358136, at *10 (N.D. Ill. Jan. 3,
`
`2008) (rejecting notice plan for providing insufficient individual notice). The Settlement
`
`Administrator says that it received 80,989,886 emails associated with Class Members. (Dkt. 196
`
`¶ 7.) No information is given about how many Class Members were identified that did not have
`
`an email or whether multiple emails were associated with a single account. What we do know is
`
`that only 56,457,812, or 70% of the emails they did have, were actually delivered. (Id. ¶ 10.)
`
`Further, nothing is provided about what steps were taken to ensure that the notices that were
`
`delivered were not delivered directly to spam folders. And nothing is said about whether any
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`instances of notices going to spam were reported to the administrator or Class Counsel, and if so,
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`
`
`5
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`

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`what was done. Finally, nothing is provided about what the email actually looked like (we have
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`only the text) or how many people clicked through from the email to file claims. Ultimately,
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`Class Counsel has failed to show that email notice was individually delivered to 70% of the 89-
`
`million-member class.
`
`
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`Worse is the Settlement Administrator’s testimony about the in-app notice. To start, the
`
`Settlement Administrator doesn’t have actual knowledge of how TikTok implemented this
`
`campaign or what its limits were but testifies about them anyway. (Id. ¶ 11; Fed. R. Evid. 602.)
`
`Evidence from someone at TikTok with actual knowledge of the in-app notice should be
`
`compelled by the Court. And the hearsay that the Settlement Administrator does testify to gives
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`the Court no information about how many Class Members the in-app notice was provided to or
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`how many Class Members “tapped” on the notice to go the settlement website. (Dkt. 196 ¶ 11.)
`
`TikTok certainly has this information. Given the lack of information provided, the Court cannot
`
`conclude that the requisite individual direct notice was provided to the Class to satisfy Rule 23
`
`and due process.
`
`
`
`And that leaves the focus of the Settlement Administrator’s efforts, and likely greatest
`
`cost of the notice plan, on the media publication component. In addition to being no substitute
`
`for direct individual notice to Class Members, the “reach” or notice to actual Class Members
`
`appears to be far less that what Class Counsel represents to the Court. First, all of the Settlement
`
`Administrator’s metrics, including its reach estimates, appear to be based on a constructed
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`“Target Audience” that may or may not include actual Class Members, and which has a
`
`population of only 34,680,000 people, or about 42% of the Class (at best). (Id. ¶ 14.) Reaching a
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`given percentage of a “Target Audience” is not the same thing as delivering notice to actual
`
`Class Members. (See id. at 4 describing the “Target Audience”.) Thus, the Platt Declaration does
`
`
`
`6
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`

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`not establish that notice was provided to 96.78% of the Class three times like Class Counsel
`
`claim. (Dkt. 195 at 26.) Moreover, providing or measuring “impressions” of ads is also not the
`
`same thing as providing a copy of the Court-approved notice. The Settlement Administrator
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`failed to provide any copies of the digital ads they used and conspicuously omits the click-
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`through rate, even though he avers that Angeion tracked conversion rate in order to “driv[e]
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`optimizations.” (Dkt. 196 ¶ 21.)
`
`
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`As such, Class Counsel has failed to show that the notice plan satisfied due process.
`
`III.
`
`
`
`
`In the Seventh Circuit, Class Counsel’s Fee Brief Must be Filed Before the
`Objection Deadline. It Wasn’t.
`
`The Seventh Circuit could not have been more clear that fee motions must be filed before
`
`the deadline to object. Kaufman v. Am. Express Travel Related Servs. Co., Inc., 877 F.3d 276,
`
`284 (7th Cir. 2017) (“the plain text of Rule 23(h) . . . requires parties to file motions for
`
`attorneys’ fees before the deadline to object to the settlement.”); Redman v. RadioShack Corp.,
`
`768 F.3d 622, 637–38 (7th Cir. 2014) (“Class counsel did not file the attorneys’ fee motion until
`
`after the deadline set by the court for objections to the settlement had expired. That violated
`
`the rule. . . . There was no excuse for permitting so irregular, indeed unlawful, a procedure.”).
`
`Indeed, it is the universal practice of experienced class action lawyers practicing in this Circuit to
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`file any petition for attorneys’ fees at least two weeks before the objection deadline.
`
`
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`Here, it is equally clear that this precedent was not followed. The deadline for Class
`
`Members to file objections was January 31, 2022. That was the only deadline provided for in
`
`notice. (Dkt. 196 (email notice) at 17 (“you may object to the settlement by submitting a written
`
`objection by January 31, 2022.”); available at https://angeion-
`
`public.s3.amazonaws.com/www.TikTokDataPrivacySettlement.com/docs/TikTok+Long+Form+
`
`Notice+(website)+v3+draft+20211019.pdf (twice listing January 31, 2022 as the only deadline to
`
`
`
`7
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`

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`Case: 1:20-cv-04699 Document #: 212 Filed: 04/14/22 Page 14 of 27 PageID #:11219
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`object).) Nowhere in the direct notice or the website notice were Class Members told that after
`
`the objection deadline Class Counsel would move for fees, that the motion would be posted on
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`the settlement website, and that a second secret objection deadline existed if they had specific
`
`objections to the fees. (See id.) Indeed, the so-called “Fee Response Deadline” was entirely
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`absent from any notice provided to the Class until Class Counsel got called on by nearly all the
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`objectors for their flagrant violation of Rule 23(h). Only then, and mere days before the objection
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`deadline, did they inform the Class of the second deadline to object. (See dkt. 192 catching Class
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`Counsel red-handed changing the settlement website to add the secret second objection
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`deadline.)
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`Class Counsel offer several reasons why they believe the filing of their fee petition after
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`the deadline for Class Members to object comports with Rule 23(h) and Seventh Circuit
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`precedent. First, they claim their failure to follow precedent is excused because the class notice
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`says they will ask for one-third of the settlement fund for fees, refers to the settlement website,
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`and that the motion was posted “on the website upon filing.” (Dkt. 195 at 58.) This argument is
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`nearly identical to the district court’s reasoning in Redman that the Seventh Circuit reversed.
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`Redman v. RadioShack Corp., No. 11 C 6741, 2014 WL 497438, at *12 (N.D. Ill. Feb. 7, 2014)
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`(accepting argument that “the Notice of Class Action Settlement in this case gave objectors a
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`clear understanding of the amount that class counsel would receive under the settlement terms.
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`Ultimately, several objectors were able to challenge the proposed attorneys’ fees because the
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`class notice included the amount of the fee award. . . . The facts that objectors in this case
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`identified and protested the requested fees belies any alleged prejudicial impact as a result of the
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`objection deadline falling before the fee application was received.”) rev’d 768 F.3d 622 (7th Cir.
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`2014). Further, the motion for fees was not posted on the website “upon filing” as Class Counsel
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`state. They waited four days before bothering to post it on the website.
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`Nor do the out-of-circuit or pre-Redman decisions help Class Counsel. For instance, In re
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`National Football League Players Concussion Injury Litigation agrees with Redman and isn’t
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`even about a situation where class counsel filed its fee petition after the objection deadline. 821
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`F.3d 410, 446 (3d Cir. 2016) (“In those cases, the district courts denied class members the
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`opportunity to object to the particulars of counsel’s fee request because counsel were not
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`required to file a fee petition until after the deadline for class members to object expired. By the
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`time they were served with notice of the fee petition, it was too late for them to object. We have
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`little trouble agreeing that Rule 23(h) is violated in those circumstances. But in our case the fee
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`petition has not yet been filed, the District Court has not set a deadline for objections to the fee
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`petition, and the issue of whether class members will have an opportunity to object is
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`hypothetical.”). And Keil v. Lopez also agrees with Redman in substance, but directly splits with
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`the Seventh Circuit on whether violating Rule 23(h) is harmless error. 862 F.3d 685, 705 (8th
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`Cir. 2017) (“We hold only that the district court erred by setting the deadline for objections on a
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`date before the deadline for class counsel to file their fee motion.”) And the Ninth Circuit’s
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`decision In re Volkswagen “Clean Diesel” Marketing Sales Practices & Product Liability
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`Litigation concerns a situation where two wholly separate deadlines to object to the settlement
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`and to object to fees were clearly set out by the district court. 895 F.3d 597, 614 (9th Cir. 2018).
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`Indeed, Class Counsel in that case didn’t even move for fees until after the settlement was
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`approved. See In re: Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig., No.
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`MDL 2672 CRB (JSC), 2016 WL 6248426, at *23 (N.D. Cal. Oct. 25, 2016) (discussing how the
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`motion for fees would be filed after the fairness hearing and a separate deadline would be
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`established). That isn’t what’s going on here because Class Counsel isn’t waiting until after final
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`approval to move for fees, and they never told the Class about the second objection deadline
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`until their failure to follow precedent was raised.
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`Accordingly, Class Counsel’s fee petition was filed in violation of Rule 23(h) and
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`governing precedent. As the notice effort likely fell short of satisfying due process and clearly
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`resulted in an unacceptable claims rate, the Court should order renewed notice.
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`IV. Class Counsel’s Explanations of the Process Leading to the Settlement and the
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`Allocation Do Not Instill Confidence That the Settlement is Fair.
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`Mr. Litteken’s objections (dkts. 132, 184), argue that there is no justification for paying
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`the Illinois subclass six times what he and everyone non-Illinois Class Member is entitled to. See
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`Fed. R. Civ. P. 23(e)(2)(D). This is certainly the case where TikTok has warranted, and Class
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`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.) Class Counsel blows this off claiming that all settlements include defendants
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`denying the merits of the claim. (Dkt. 195 at 63.) It’s true such clauses are nearly universal, and
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`this settlement also contains such a clause. (Dkt. 122-1 § 3.4 (“TikTok has denied and continues
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`to deny each allegation and all charges of wrongdoing or liability of any kind whatsoever
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`asserted or that could have been asserted in the Civil Actions.”).) But that’s not the issue. As the
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`Court recognized, this settlement contains a highly unusual provision where TikTok swore and
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`then confirmed to Class Counsel through discovery that the app never collected any biometrics in
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`violation of BIPA. (Dkt. 161 at 22 (“In addition, Defendants have gone so far as to warrant[] and
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`confirm through discovery that they have ‘not used the App to collect biometric information or []
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`identifiers as defined by [BIPA].’ Settlement Agreement § 7.1; see also id. §§ 7.2–7.3.”).) That is
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`not a simple denial of merits of the claims against it; that is apparently demonstrated proof of the
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`absence of wrongdoing by TikTok as it relates to BIPA. That the favored Illinois class receives
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`the lion’s share of the settlement funds for a meritless claim demonstrates that the plan of
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`allocation is unfair.
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`Although paying a small portion of the Class most of the money for a meritless claim is
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`sufficient to reject the proposed allocation, Class Counsel also attempts to defend the highly
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`abnormal and seemingly collusive manner in which the settlement and allocation were reached.
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`It is “irrelevant,” they say, that settlement delegation was organized and led by an unappointed
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`lawyer with a secret client, in a newly filed case, with only an apparently