Case: 1:20-cv-04699 Document #: 214 Filed: 04/14/22 Page 1 of 17 PageID #:11254
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`IN RE: TIKTOK, INC., CONSUMER PRIVACY
`LITIGATION
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`This Document Relates to All Cases
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`MDL No. 2948
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`Master Docket No. 20-cv-4699
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`Judge John Z. Lee
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`Magistrate Judge Sunil R. Harjani
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`RESPONSE OF MARK S., AS PARENT AND LEGAL GUARDIAN OF HIS MINOR
`SON, A.S., TO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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`Case: 1:20-cv-04699 Document #: 214 Filed: 04/14/22 Page 2 of 17 PageID #:11255
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`INTRODUCTION
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`The Court should deny final approval of the Settlement1 because it is not fair, reasonable
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`or adequate. Mark S. acknowledges that the Settlement provides for a facially large settlement
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`value of $92 million. However, that number only tells a portion of the story. Regardless of the
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`size of the Settlement, the schedule for class members to file their objections in relation to the
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`date for Class Counsel to file their fee petition was unlawful. Without more, the unlawful
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`schedule precludes final approval of the Settlement.
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`Beyond the unlawful schedule, conflicts of interest resulted in Class Counsel and the
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`minor class representatives being unable to adequately represent minor class members. The
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`conflicts result from: (a) the minor class representatives seemingly having not disaffirmed their
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`agreements with TikTok (they are totally silent on the issue); and (b) Class Counsel negotiating
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`the claims of minor class members under the age of 13 while in violation of a preliminary
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`injunction in a related matter. Because of the conflicts, minor class members should have had
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`separate, conflict-free representation during settlement negotiations.
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`Further, the Settlement is not fair, reasonable or adequate because it does not provide fair
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`value based on the net expected value of the alleged claims if the litigation were to move
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`forward. Finally, the Notice Program failed to provide the best notice practicable because the
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`media portion of the plan targeted the wrong people.
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`PROCEDURAL BACKGROUND
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`On February 25, 2021, Plaintiffs filed Plaintiffs’ Motion for Preliminary Approval of
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`Class Action Settlement. Dkt. 122. On March 1, 2021, Mark S., as parent and legal guardian of
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`his minor son, A.S., filed his initial objections to the preliminary approval motion. Dkt. 126. In
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`his objections, Mark S. contended, among other reasons, that the Settlement should not be
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`1 Capitalized terms have the meaning set forth in the Settlement Agreement and Release (Dkt. 122-1).
`1
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`approved because: (a) it did not account for conflicts between minor and non-minor class
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`members; (b) the Notice Plan failed to provide notice via the TikTok software application (the
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`“TikTok App”); and (c) it failed to provide adequate relief to class members. Id. at 2.2 After the
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`Court held a preliminary approval hearing, TikTok agreed to provide notice via the TikTok App
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`if ordered to do so by the Court. See Dkt. 139 at 3.
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`On September 30, 2021, the Court preliminarily approved the Settlement. Dkt. 161-62. In
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`its Memorandum and Opinion Order, the Court expressly agreed with Mark S. “that notice
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`through the App itself would significantly enhance the notice program and that the benefit to
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`class members of providing in-app notice outweighs any detriment.” Dkt. 161 at 29. Thus, in
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`granting preliminary approval, the Court accepted TikTok’s offer to provide notice via the
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`TikTok App. Id.
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`In the Preliminary Approval Order, the “Court approve[d], as to form and content, the
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`proposed Class Notices submitted to the Court.” Dkt. 162 ¶ 14; see also Dkt. 122-4 (proposed
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`notices). The approved version of the long-form class notice (the “Approved Notice”) contained
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`a section titled “Your Legal Rights and Options in This Settlement.” See Dkt. 122-4 at 3.
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`Therein, was a row titled “Object” that stated as follows:
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`OBJECT
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`Write to the Court if you do not like the Settlement
`Deadline: DATE
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`On November 13, 2021, the Settlement Administrator established a website devoted to
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`Id.
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`the Settlement. See Dkt. 196 ¶ 30. The website contained a downloadable and searchable version
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`of the Approved Notice. Id. In the “Your Legal Rights and Options in This Settlement” section,
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`the deadline for objections was (and is) January 31, 2022. See Exhibit 1 (printout of Approved
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`2 Citations to the page numbers of docketed entries are to the CM/ECF-stamped page numbers unless
`otherwise noted.
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`2
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`Notice – Apr. 14, 2022) at 3; Exhibit 3 (printout of Approved Notice – Nov. 15, 2021) at 3;
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`Declaration of Scott R. Drury ¶¶ 2, 4 . The Approved Notice did not provide any other date for
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`class member objections or others response to subsequent filings. See Exs. 1, 3.
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`The Settlement website also reproduces the “Your Legal Rights and Options in This
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`Settlement” section of the Approved Notice on the website’s homepage. See Exhibit 2
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`(Settlement website’s homepage – April 14, 2022) at 3-4; Drury Decl. ¶ 3. Prior to January 25,
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`2022, the objection deadline was listed as January 31, 2022. See Exhibit 4 (printout of pre-
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`January 25, 2022 Settlement website homepage) at 4; Drury Decl. ¶ 6.
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`Beginning on November 14, 2021, the Settlement Administrator sent approximately 81
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`million class notification emails to email addresses affiliated with class members. See Dkt. 196 ¶
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`7. The email notice provided a link to the Settlement website. See Dkt. 196 ¶ 10 and pp.16-17.
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`Beginning on December 30, 2021, the Settlement Administrator resent approximately 33 million
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`class notification emails to those class members who did not receive the original email because it
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`bounced back to the sender. See id. ¶ 9.
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`On November 15, 2021, TikTok provided notification of the Settlement via the TikTok
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`App. Id. ¶ 11. That in-app notice provided a link to the Settlement website. Id.
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`On or about January 25, 2022, the Settlement website was altered. Specifically, on the
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`homepage, the row within the “Your Legal Rights and Options in This Settlement” section was
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`modified to include a date to respond to any fee petition:
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`OBJECT
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`Write to the Court if you do not like the Settlement
`Deadline: DATE
`Deadline for responses to Plaintiffs’ Motion for Final Approval
`and Motion for Attorneys’ Fees: April 14, 2022
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`See Exhibit 5 (printout of January 25, 2022 Settlement webpage) at 4; Drury Decl. ¶ 6. The
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`downloadable version of the Approved Notice was not altered. No additional mass emails or in-
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`app notices were sent to class members advising them of the alteration or the new date. See Dkt.
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`196 (not describing any post-January 25, 2022 mass class-member emails or in-app notices).
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`On January 30, 2022, Mark S. objected to the Settlement in his capacity as parent and
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`legal guardian of his minor son, A.S. Dkt. 187. While Mark S. believed that A.S. previously had
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`disaffirmed any agreement A.S. had with TikTok through his initial objections filed in this case
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`and his objections in the matter of T.K. v. ByteDance Tech. Co., Ltd. (“T.K.”), No. 1:19-cv-7915
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`(N.D. Ill.), the January 30, 2022 objections made clear that A.S. disaffirmed any such agreement.
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`Dkt. 187 at 8.
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`On March 31, 2022, Plaintiffs filed their Motion for Final Approval of Class Action
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`Settlement and Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and Class
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`Representative Service Awards. Dkt. 195, 197.
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`ARGUMENT
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`I.
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`Mark S. Complied with the Approved Notice’s Objection Requirements.
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`The Approved Notice sets forth three requirements for objecting to the Settlement: (a) “a
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`detailed statement of the Class Member’s objection(s) . . .”; (b) “the Class Member’s full name,
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`address and telephone number”; and (c) “information demonstrating the Class Member is entitled
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`to be included as a member of the class.” Dkt. 187-2 at 8-9. Mark S.’s objections satisfy each of
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`those requirements. See, generally, Dkt. 187. Indeed, Mark S. provided more information than is
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`required in the Approved Notice, including: (a) a verification that the factual information in the
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`objections is true and correct; and (b) a list of any other class action settlements to which his
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`counsel has objected in the last five years. See id. at 7-8, 18. Mark S. also stated that he would
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`provide additional information if required by the Court. Id. at 7, n.11.
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`Ignoring their own Approved Notice, Plaintiffs contend that Mark S.’s objections are
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`deficient because they did not comply with requirements set forth in the Preliminary Approval
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`Order. See Dkt. 195 at 48, n.19. As set forth in Mark S.’s objections, the Approved Notice and
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`the Preliminary Approval Order inexplicably contain different requirements. See Dkt. 187 at 7,
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`n.11. Plaintiffs ignore the discrepancy and the consequences of requiring class members to
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`adhere to requirements that are different than those set forth in the Approved Notice.
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`Specifically, if class members are required to abide by requirements different than those set forth
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`in the Approved Notice, then the Approved Notice is defective because it does not provide the
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`“best notice that is practicable under the circumstances.” See Fed. R. Civ. P. 23(c)(2)(B). In any
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`event, Mark S. has provided the information necessary for Plaintiffs to determine whether A.S. is
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`a class member and has standing to object. To the extent the Court seeks more information, Mark
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`S. can provide it.
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`II.
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`Plaintiffs’ Self-Help Remedy of Altering the Settlement Website Does Not Remedy
`the Unlawful Schedule or Cure the Harm to Class Members.
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`Mark S. has objected to the Settlement on the grounds that the schedule for objecting to
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`the Settlement was unlawful because it required objections to be filed before the filing of
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`Plaintiffs’ fee petition. See Dkt. 187 at 8-9. The law in the Seventh Circuit is clear – a schedule
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`that requires objections to a class action settlement to be made before the deadline for the filing
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`of motions seeking attorneys’ fees violates Fed. R. Civ. P. 23(h) and is unlawful. See Fed. R.
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`Civ. P. 23(h); Redman v. Radio Shack, 768 F.3d 622, 637-38 (7th Cir. 2014); Kaufman v.
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`American Express Travel Related Services Co., Inc., 877 F.3d 276, 283-84 (7th Cir. 2017); see
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`also In re: Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 993-95 (9th Cir. 2010). Absent a
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`schedule that allows class members to object to filed a fee petition, objectors are handicapped.
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`See Redman, 768 F.3d at 637-38. Without the details provided in the fee petition, objectors could
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`only make generalized arguments about the potential fees class counsel may seek. See id.; see
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`also Kaufman, 877 F.3d at 283.
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`While Plaintiffs only respond to Mark S.’s objection in a cursory footnote (see Dkt. 195
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`at 53, n.24), in response to a different objector, Plaintiffs seek to sidestep the above-cited
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`controlling precedent by contending that it does not address a “scenario with separate settlement
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`and fee objection deadlines.” See id. at 60. However, there are not separate objection deadlines in
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`this case.
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`The Preliminary Approval Order contains a single “Objection Deadline” of January 31,
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`2022. Dkt. 162 at 10 (emphasis added). Below the Objection Deadline, the Preliminary Approval
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`Order sets forth a separate date for “any responses to Plaintiffs’ Motion and Memorandum in
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`Support of Final Approval and Motion for Attorneys’ Fees and Service Award.” See id.
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`(emphasis added). The Preliminary Approval Order’s use of different terms in the two different
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`sections indicates that it is referring to different things. If the Preliminary Approval Order
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`intended to allow any class member (whether they previously had objected or not) to object to
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`Plaintiffs’ fee petition, it would have allowed for “objections” to the fee petition. Cf. Denan v.
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`Trans Union LLC, 959 F.3d 290, 296 (7th Cir. 2021) (basic statutory construction rule is that
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`identical words used in different parts of a statute have the same meaning). The Order’s use of
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`the word “responses” indicates a different meaning than “objection” – likely, the ability for those
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`who already have appeared in the case to file a response.
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`Even if the Preliminary Approval Order could be read to allow new objectors to object to
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`the fee petition after the objection deadline, Plaintiffs fail to address the fact that the Approved
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`Notice only sets forth the single objection deadline of January 31, 2022. See Dkt. 187-2 at 3, 8.
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`That notice was disseminated to millions of class members in November and December 2020.
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`While the Settlement website was later altered to include information about the April 14,
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`2022 response date (see Ex. 2), that alteration did not cure the unlawful nature of the schedule.
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`The alteration did not result in new notice being provided to the millions of class members who
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`were sent email notice in November and December 2020 or who received notice via the TikTok
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`App in November 2020. Moreover, the alteration was only made to the Settlement website’s
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`homepage, not to the downloadable the Approved Notice. Thus, the alteration served to create
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`more confusion because there were now two different versions of important dates without any
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`indication to lay class members as to which version controlled. To the extent the altered notice
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`on the Settlement website’s homepage is the controlling notice, that only highlights the defective
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`and improper nature of the Approved Notice that remains accessible through the Settlement
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`website. See Fed. R. Civ. P. 23(c)(2)(B) (requiring best notice practicable under the
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`circumstances).
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`III. The Settlement Does Not Satisfy the Adequacy Requirement of Rule 23(a)(4).
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`A.
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`The Minor Class Representatives and Their Counsel Cannot Adequately
`Represent the Interests of Minor Class Members.
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`1.
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`It Does Not Appear that the Minor Class Representatives Have
`Disaffirmed Their Agreements with TikTok, Resulting in a Conflict
`Between Them (and Their Counsel) and Minor Class Members.
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`Nowhere in the fifty-nine substantive pages of the Motion for Final Approval do
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`Plaintiffs address a critical issue – whether the minor class representatives have disaffirmed their
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`agreements with TikTok and whether they did so before the mediation that resulted in the
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`Settlement. See, generally, Dkt. 195. Given that Mark S. has affirmatively represented that A.S.
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`has disaffirmed any agreement A.S. had with TikTok, Plaintiffs certainly would have made the
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`same representation regarding the minor class representatives if the representation were true.
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`Absent such disaffirmance, the minor class representatives stood in the same position as non-
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`minor class members at the time of the mediation – i.e., they were subject to arguments that they
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`would have to arbitrate their claims again TikTok on an individual basis.
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`Consistent with Plaintiffs’ position throughout the case, the Motion for Final Approval
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`makes clear that the primary litigation risk herein stems from a purported arbitration agreement
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`and class action waiver that class members allegedly agreed to. See Dkt. 195 at 12-13, 36; see
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`also Dkt. 122 at 9-10, 12-13, 29; Dkt. 137 at 17. According to Plaintiffs, the purported arbitration
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`and class action waiver provisions “would moot Plaintiffs’ class case as a threshold matter even
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`before a motion to dismiss is considered, effectively valuing all asserted claims at $0 (absent
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`individual pursuit of those claims in arbitration).” Dkt. 137 at 17 (emphasis added). This “sky is
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`falling” view of the case may have been true for non-minor class members and minor class
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`members who had not disaffirmed their agreement with TikTok at the time of the mediation.
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`However, it was not true for the millions of minor class members with the ability to disaffirm
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`their agreements with TikTok.
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`Plaintiffs’ silence regarding disaffirmance by any of the minor class representatives, as
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`well as the lack of any verified statement from any minor class member or representative thereof
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`acknowledging any such disaffirmance, is a tacit admission that the minor class members failed
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`to timely disaffirm their agreements with TikTok. As a result, at the mediation, Class Counsel
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`and the minor class representatives could not have represented the best interests of the millions
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`of minor class members who had viable, non-arbitrable claims and, as to minor class members
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`under the age of 13, the need for different injunctive relief. This is because Class Counsel were
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`necessarily handicapped by their obligation to obtain the best deal for their clients, whose claims
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`were subject to an arbitration agreement that Class Counsel believed would make the claims
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`worthless absent a deal.
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`Due to the conflict, it was and is necessary for minor class members with the ability to
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`disaffirm their agreements to be represented by a class representative (and his/her counsel) who
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`has disaffirmed his/her agreement with TikTok. When a court is confronted with a request for
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`settlement-only class certification, as is the case here, it must give “undiluted, even heightened,
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`attention” to Rule 23 protections “designed to protect absentees by blocking unwarranted or
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`overbroad class definitions.” Amchem Products v. Windsor, 521 U.S. 591, 620 (1997). Included
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`in this analysis is the adequacy inquiry under Rule 23(a)(4). See id. at 625. This inquiry “serves
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`to uncover conflicts of interest between named parties and the class they seek to represent.” Id. A
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`conflict arises where the interests of those within a single class are not aligned. See id. at 626.
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`Here, a conflict unquestionably exists between non-minor class members and minor class
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`members – and between the minor class members who have not disaffirmed their agreements
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`with TikTok and those minor class members who have or could disaffirm. While Class Counsel
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`claim that they “vetted” the issue of disaffirmance and considered arguments related thereto (see
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`Dkt. 195 at 50), their words cannot overcome the inexorable fact that at all times they stood in a
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`conflicted position.
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`In the Motion for Final Approval, Plaintiffs state in cursory fashion that TikTok contends
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`that disaffirmance purportedly presents individualized issues. Id. at 13. To the extent the
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`statement is an argument, it is waived due to its perfunctory and undeveloped nature. See White
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`v. United States, 8 F.4th 547, 552 (7th Cir. 2021). On the merits, the argument fails. As to minor
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`class members, common issues predominate over any individualized questions. See Fed. R. Civ.
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`P. 23(b)(3); see also Arenson v. Whitehall Convalescent and Nursing Home, Inc., 164 F.R.D.
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`659, 666 (N.D. Ill. 1996). Those common questions include whether TikTok unlawfully profited
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`from its use of class members’ unique identifying information, whether TikTok unlawfully
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`collected class members’ biometric data, whether TikTok unlawfully transferred class members’
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`personally identifiable user data to servers in China, whether TikTok surreptitiously took class
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`members’ private draft videos without notice or consent, and whether TikTok violated various
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`state and federal statutes and common law.
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`On the other hand, no evidence has been presented that any class member, let alone any
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`minor class member, is subject to arbitration. Thus, at this time, the undeveloped argument
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`regarding arbitration is wholly speculative. See Fischer v. Instant Checkmate LLC, No. 19 C
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`4896, 2022 WL 971479, at *9 (N.D. Ill. Mar. 31, 2022). Further, merely because class members
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`may be subject to arbitration is not a bar to class certification. See id. Moreover, should a time
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`come when it is necessary to learn whether minor class members have or seek to disaffirm their
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`agreements with TikTok, this can be done via a claim form.3 In that same form, disaffirming
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`minor class members could also authorize TikTok to disable their TikTok accounts.
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`TikTok’s alternative argument that even if minors could disaffirm their agreements, some
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`of the minors have released their claims in this case due to the settlement in T.K. (Dkt. 195 at 13)
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`is at direct odds with the understanding of the court in T.K. See T.K. Dkt. 94 at 44. In its final
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`approval order, the court in T.K. stated with respect to the release in the settlement agreement in
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`that case that “in light of representations by the parties, members of the Proposed Settlement
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`Class remain free to pursue their BIPA claims in the pending MDL.” Id. While the court’s order
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`solely referenced BIPA claims, there is no logical reason that it would not cover all of the claims
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`in this case. Such an interpretation would be consistent with this Court’s statement at the
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`preliminary approval hearing regarding any impact the Settlement release in this case would
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`have on T.K.:
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`3 Mark S. notes that the lack of evidence regarding class members who may wish to disaffirm results from
`a lack of discovery on the issue. To the extent the Court want additional information regarding
`disaffirmance, Mark S. respectfully submits the Court should allow limited discovery on the topic.
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`And the last one I had here on my list was the release excluding TikTok. But I
`think that Mr. Weibell’s statement is sufficient, and certainly if the settlement gets
`approved, it would count as judicial estoppel . . . . I think that at this point I’m
`satisfied that the release in this case would not encompass the claims that class
`members set forth in the T.K. class action.
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`Dkt. 138-5 at Tr. 47:6-14 (emphasis added).
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`Mark S. has always feared that TikTok’s strategy of litigating in two forums would result
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`in TikTok later trying to play one case off of the other. See, e.g., Dkt. 59-1 (motion to enforce
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`T.K. preliminary injunction). With TikTok’s present argument, the fear has come true. In an
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`effort to strong-arm the Court into approving the Settlement, TikTok is taking the position that
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`the failure to do so will result in T.K. class members being stuck with the paltry settlement in that
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`case. However, based on the above-quoted statements of the court in T.K. and this Court, it is
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`clear that TikTok’s position is not consistent with the understanding of either court. That there is
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`any ambiguity is the direct consequence of Class Counsel and TikTok negotiating the Settlement
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`here in violation of the T.K. preliminary injunction that precluded minor class members from
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`asserting the claims in this case. See T.K. Dkt. 13 ¶ 16; see also Dkt. 59-1.
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`2.
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`Class Counsel’s Violation of the Preliminary Injunction Created a
`Conflict.
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`As discussed above, when Class Counsel negotiated the settlement, they were acting in
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`violation of the T.K. preliminary injunction. That violation necessarily precluded Class Counsel
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`from advocating for T.K. class members in the same manner that they would had they not
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`violated the preliminary injunction. This is because at any time during negotiations, TikTok
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`could have informed Class Counsel that it was seeking to enforce the T.K. preliminary
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`injunction, which would have precluded any participation of any T.K. class members in the
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`MDL, absent transfer of T.K. into the MDL or vice versa. As a result, throughout the
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`negotiations, Class Counsel was in a severely disadvantaged and conflicted position – i.e., should
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`Class Counsel push to obtain the true value of the T.K. class members’ claims (which claims
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`were not hindered by an arbitration agreement) and risk TikTok enforcing the injunction, or
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`should Class Counsel seek to maximize fees by taking what they could get for the T.K. class
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`members? See Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014). Because of the conflict,
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`even if Class Counsel believed they were acting in the best interests of the T.K. class members,
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`the Court cannot be certain of that.4 Further, because Class Counsel has not provided any
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`information about what portion of the Settlement is attributable to the addition of the T.K. class
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`members, there is no way to evaluate Class Counsel’s efforts on behalf of those class members.5
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`Plaintiffs contend that Mark S. has failed to identify the conflict caused by the T.K.
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`preliminary injunction and further contend that there could not have been a conflict because
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`Plaintiffs asserted enjoined claims in this case. Dkt. 195 at 51. As discussed above, it is
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`Plaintiffs’ assertion and pursuit of enjoined claims in this case that created the conflict.6 While
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`Plaintiffs note that the court in T.K. did not enforce the preliminary injunction (id. at 52), they
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`ignore that the court’s decision was based on the various representations in this case and in T.K.
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`that T.K. class members would not be harmed if both cases were allowed to proceed
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`simultaneously. See, supra; see also T.K. Dkt. 68. Based on those representations, the court in
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`T.K. did not believe it was necessary to enforce the preliminary injunction. T.K. Dkt. 68.
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`Through his efforts, Mark S. put TikTok in the position of having to make the representations.
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`4 Mark S. recognizes that in his counsel’s fee petition, they argued that TikTok had its own reasons for
`wanting to settle T.K. class members’ claims in the MDL. See Dkt. 201 at 11-12. TikTok’s motivations
`have no bearing on Class Counsel’s conflict.
`5 As a matter of simple math, Mark S.’s counsel has attributed a pro rata share of the $92 million
`common fund to the T.K. class members. See Dkt. 201 at 2. That figure underestimates the value that
`should have been obtained, given that T.K. class members are not necessarily bound by any arbitration
`agreement.
`6 Plaintiffs state that Mark S. argued that T.K. did not involve BIPA claims. Dkt. 195 at 52, n.22. It is
`undisputed that the plaintiffs in T.K. did not allege BIPA claims. However, the T.K. settlement sought to
`release BIPA claims without providing fair value. Indeed, that was a major part of Mark S.’s objections in
`T.K.
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`Plaintiffs also assert that Mark S. contends that T.K. class members should get nothing
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`from the Settlement because they released their claims in T.K. Id. at 52. The record belies the
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`assertion. Mark S. has continuously sought to best position the T.K. class members, as
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`demonstrated by his efforts to negate the broad release in T.K., obtain a higher settlement value
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`in T.K., and obtain independent representation for T.K. class members (and all minors) in this
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`case.
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`IV.
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`The Suspicious Circumstances Surrounding the Settlement Require a Calculation of
`the Net Expected Value.
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`In his objections, Mark S. raised serious concerns regarding the suspicious circumstances
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`surrounding the Settlement, which require calculation of the net expected value of continued
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`litigation. See Dkt. 187 at 12-15. Unable to address the full scope of Mark S.’s argument,
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`Plaintiffs contend that Mark S. merely stated that it was suspicious that there was “no basis for
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`the $92 million settlement amount.” Dkt. 195 at 52. However, Mark S. set forth numerous
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`circumstances that make the settlement suspicious and require calculation of the net expected
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`value of continued litigation. While Plaintiffs claim that the Court already rejected this argument
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`(see id.), they ignore the authority cited by Mark S. that provides that where suspicious
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`circumstances surround a settlement, the Court should calculate the net expected value. See Dkt.
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`187 at 12-15; see also Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 284 (7th Cir. 2002); see
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`also Wong v. Accretive Health, Inc., 773 F.3d 859, 864 (7th Cir. 2014).
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`V.
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`The Notice Plan Does Not Provide the Best Notice Practicable.
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`In his objections, Mark S. demonstrated why the target audience of the media notice
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`portion of the Notice Plan was not the best notice practicable under the circumstances. See Dkt.
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`187 at 15-16. Ignoring the demographics of TikTok users, the median age of the targeted
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`audience was 33.7. Even if Plaintiffs’ argument that they sought to target parents of users
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`because the parents are the ones who should get the notice is taken as true, Plaintiffs fail to
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`explain at what age a person is old enough to be able to responsibly receive notice. Certainly, the
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`age is well below 33.7 years old.
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`VI.
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`There Is No Inconsistency Between Mark S.’s Objections and His Counsel’s Fee
`Petition.
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`Plaintiffs take issue with the fact that Mark S.’s counsel sought fees in T.K. for all of his
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`efforts on behalf of T.K. class members in that case and here. See Dkt. 195 at 48-49. Mark S.
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`notes that since Plaintiffs filed their Motion for Final Approval, Mark S.’s counsel has filed a fee
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`petition in this case. Dkt. 201. In that fee petition, Mark S.’s counsel set forth the work
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`performed on behalf of T.K. class members and the benefits obtained for T.K. class members. See
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`id.
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`
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`Plaintiffs disagree with Mark S.’s claim that his work on behalf of T.K. class members
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`resulted in T.K. class members being able to participate in the Settlement here. See Dkt. 195 at
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`48-49. As set forth in the fee petition of Mark S.’s counsel, which Mark S. incorporates here,
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`Mark S.’s efforts prevented the T.K. class members from quickly releasing their claims in T.K.
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`before this case settled. Moreover, Mark S.’s efforts put TikTok in the position of not knowing if
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`it ever would obtain the release in T.K., thereby incentivizing TikTok to try to resolve the T.K.
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`class members’ claims here.
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`Plaintiffs further take issue with Mark S. both objecting to the Settlement here and
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`seeking attorneys’ fees for the additional benefits obtained for T.K. class members. See id. Mark
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`S.’s positions are not inconsistent. As discussed throughout this memorandum and elsewhere,
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`Mark S. does not believe the Settlement is fair, reasonable or adequate and does not believe that
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`the Court should approve it. At the same time, Mark S. recognizes that the Court may approve
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`the Settlement. While Mark S. does not believe that T.K. class members received fair value for
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`their claims in T.K. and does not believe that the Settlement here provides them with fair value,
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`Mark S. has increased the value of their claims. Thus, Mark S.’s counsel has sought fees for the
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`benefits they have obtained for the T.K. class members.
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`While Plaintiffs try to cast Mark S. as seeking fees for the benefits Plaintiffs obtained in
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`the Settlement (see Dkt. 195 at 49), that is not the case. As a result of Mark S.’s efforts, the value
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`that TikTok has agreed to pay for the T.K. class members’ claims has increased from $1.1
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`million to over $7.3 million. The amount should be more. But if the Court approves the
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`Settlement in its current form, Mark S.’s counsel is entitled to attorneys’ fees for the increased
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`value of the T.K. class members’ claims.
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`CONCLUSION
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`For the foregoing reasons, the Court should not grant final approval to the Settlement.
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`Dated: April 14, 2022
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`Mike Kanovitz
`Scott R. Drury
`LOEVY & LOEVY
`31