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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 1 of 31 PageID #:11850
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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,
`
`
`
`
`
`This Document Relates to All Cases
`
`MDL No. 2948
`
`Master Docket No. 20-cv-4699
`
`Judge John Z. Lee
`
`Magistrate Judge Sunil R. Harjani
`
`
`
`REPLY IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL
`OF CLASS ACTION SETTLEMENT AND FOR ATTORNEYS’ FEES
`
`
`
`

`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 2 of 31 PageID #:11851
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`Table of Contents
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`I. 
`II. 
`
`III. 
`
`IV. 
`
`
`
`
`
`
`2.
`
`3.
`
`B. 
`C. 
`D. 
`
`INTRODUCTION ............................................................................................................ 1 
`FINAL APPROVAL IS WARRANTED .......................................................................... 2 
`A. 
`The Settlement provides an excellent benefit to the Class. .................................. 2 
`1.
`The Settlement’s value exceeds that of many comparable privacy
`settlements. ................................................................................................ 3
`The allocation of the Settlement fund between the two classes is fair and
`was based on meaningful analysis of the strength and value of each
`claim. ......................................................................................................... 4
`The Nationwide Class and Illinois Subclass were adequately represented,
`including by Co-Lead Counsel, Class Representative counsel,
`independent subclass counsel, and numerous Class Representatives. ...... 6
`The Claims rates indicate widespread support for the Settlement. ....................... 8 
`The Notice Plan was successful. ......................................................................... 10 
`As the Court already determined, the under-13 Class Members were adequately
`represented, and their recovery in this Settlement further demonstrates that. .... 14 
`PLAINTIFFS’ FEE MOTION SHOULD BE GRANTED ............................................ 15 
`Plaintiffs’ fee request is reasonable under both the percentage-of-the-fund and
`A. 
`lodestar methodologies. ...................................................................................... 15 
`Plaintiffs’ Fee Motion was timely filed and all Class Members had the
`opportunity to object. .......................................................................................... 21 
`C.  While other counsel for Class Representatives contributed meaningfully to this
`case, Lead Counsel’s recommended tiers for fee multipliers are fair and consider
`all counsel’s risks and contributions. .................................................................. 23 
`Objector Mark S. cannot be awarded fees for a Settlement he had no role in
`obtaining and that he repeatedly sought to undo. ............................................... 24 
`CONCLUSION ............................................................................................................... 25 
`
`B. 
`
`D. 
`
`i
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 3 of 31 PageID #:11852
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`Table of Authorities
`
` Page(s)
`
`Cases
`Hale v. State Farm Mut. Auto. Ins. Co.,
`2018 WL 6606079 (S.D. Ill. Dec. 16, 2018) ........................................................................... 18
`In re Broiler Chicken Antitrust Litig.,
`No. 16 C 8637, 2021 WL 5709250 (N.D. Ill. Dec. 1, 2021) ................................ 17, 18-19, 21
`In re Equifax Customer Data Sec. Breach Litig.,
`999 F.3d 1247 (11th Cir. 2021) .............................................................................................. 10
`In re Facebook Biometric Info. Privacy Litig.,
`522 F. Supp. 3d 617 ............................................................................................................ 9, 10
`In re Synthroid Mktg. Litig.,
`264 F.3d 712 (7th Cir. 2001) .................................................................................................. 17
`In re Synthroid Mktg. Litig.,
`325 F.3d 974 (7th Cir. 2003) ............................................................................................ 17, 18
`In re TransUnion Corp. Priv. Litig.,
`No. 00-CV-4729, 2008 WL 11358136, 2008 U.S. Dist. LEXIS 128501 (N.D. Ill. Jan. 3,
`2008) ....................................................................................................................................... 11
`In re Trans Union Corp. Priv. Litig.,
`629 F.3d 741 (7th Cir. 2011) ................................................................................................... 18
`Linnear v. Illinicare Health Plan, Inc.,
`No. 1:17-CV-07132, 2019 WL 13072750 (N.D. Ill. Dec. 17, 2019) ..................................... 15
`Pearson v. NBTY, Inc.,
`772 F.3d 778 (7th Cir. 2014) ................................................................................................... 15
`Powers v. Filters Fast, LLC,
`No. 20-cv-982, 2022 U.S. Dist. LEXIS 27967 (W.D. Wis. Feb. 15, 2022) ........................... 10
`Redman v. RadioShack Corp.,
`768 F.3d 622 (7th Cir. 2014) ............................................................................................ 15, 22
`Reynolds v. Beneficial Nat’l Bank,
`288 F.3d 277 (7th Cir. 2002) ............................................................................................ 3, 4, 5
`
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`ii
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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 4 of 31 PageID #:11853
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`T.K. v. Bytedance Tech. Co., Ltd.,
`No. 19-CV-7915, 2022 U.S. Dist. LEXIS 65322 (N.D. Ill. Mar. 25, 2022) .......................... 24
`
`Statutes
`California Consumer Privacy Act, Cal. Civ. Code § 1798.150 (Deering) ..................................... 5
`Portland City Code, §§ 34.10.010-34.10.050 ................................................................................. 5
`
`Rules
`Fed. R. Civ. P. 23 ................................................................................................................... 11, 22
`
`Other Authorities
`Brian T. Fitzpatrick, A Fiduciary Judge's Guide to Awarding Fees in Class Actions, 89 Fordham
`L. Rev. 1151, 1155 (2021) ............................................................................................................ 18
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`iii
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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 5 of 31 PageID #:11854
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`On March 31, 2022, Plaintiffs filed their Motion for Final Approval of Class Action
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`Settlement, ECF No. 195 (“Final Approval Motion”), and Motion for Attorneys’ Fees,
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`Reimbursement of Expenses, and Class Representative Service Awards, ECF No. 197 (“Fee
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`Motion”) (collectively, the “Motions”). Four objectors filed responses. ECF Nos. 203 (Helfand),
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`210 (Cochran), 212 (Litteken), 214 (Mark S.). In addition, counsel outside of the court-appointed
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`leadership group (“GPM and Phillips Erlewine”), who are co-counsel for certain class
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`representatives, filed a brief regarding their attorneys’ fees. ECF No. 216. Plaintiffs respectfully
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`submit this response to those briefs.
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`I.
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`INTRODUCTION
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`This Settlement garnered favorable support from the Class and from dozens of
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`experienced attorneys and plaintiffs who brought actions that were ultimately consolidated into
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`this MDL. Over 1.2 million Class members submitted claims – comprising at least 1.4% of the
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`Nationwide Class and 13% of the Illinois Subclass. This reaction reflects that the Notice plan
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`was successful, and the Settlement Class views the Settlement favorably.
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`In contrast to the Class’s widespread support, just four class members submitted
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`objections. As discussed in Plaintiffs’ Final Approval Motion, none warrants upending the
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`Settlement. And that remains true following the objectors’ subsequent submissions, in which
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`they rehash prior objections the Court has already considered and rejected, take issue with claims
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`rates that meet and exceed typical rates for a class of this size, and challenge the allocation of
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`Settlement funds which was fair in both process and result.
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`The Settlement achieved an excellent result for the Class, it satisfies all criteria for final
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`settlement approval, and Plaintiffs’ Final Approval Motion should be granted.
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`Following the Class’s positive support for the Settlement, Plaintiffs filed the Fee Motion,
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`seeking attorneys’ fees amounting to one third of the Settlement fund, as supported by a lodestar
`1
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 6 of 31 PageID #:11855
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`cross-check. The requested fee is warranted by the work performed on this case, the substantial
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`benefit achieved for the Class, and the risk counsel took in undertaking a high-risk litigation on a
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`contingent basis. Accordingly, the Fee Motion should be granted, too.
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`Finally, two sets of counsel outside of the Court-appointed Leadership Group – counsel
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`for objector Mark S. and counsel for certain class representatives – filed submissions in support
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`of their attorneys’ fees requests.
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`Mark S.’s request should be denied in full as he attempted to hinder this Settlement, not
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`help it.
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`GPM and Phillips Erlewine support Plaintiffs’ Fee Motion, but request that they be
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`awarded the same multiplier as Co-Lead Counsel because they were involved in the California
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`litigation against TikTok before the MDL was created. While GPM and Phillips Erlewine
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`undoubtedly made meaningful contributions to the case, they did not bear the risk of Court-
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`appointed Class Counsel to indefinitely litigate and fund this litigation, nor did they participate in
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`the mediation at which the Settlement was reached, continued negotiations, or Settlement
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`vetting. Many attorneys were involved in this case prior to the MDL, and that effort is reflected
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`in their lodestar. Accordingly, while Plaintiffs advocate for GPM’s and Phillips Erlewine’s fair
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`compensation, they do not believe a heightened multiplier is warranted.
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`Plaintiffs’ Motions should be granted, the Objections should be denied, and the requests
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`for additional fees by objector and class representative counsel should be denied as well.
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`II.
`
`FINAL APPROVAL IS WARRANTED
`A. The Settlement provides an excellent benefit to the Class.
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`The Settlement provides an excellent benefit to the Class, offering $92 million in
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`monetary relief and meaningful privacy protections through injunctive relief. As discussed in the
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`Final Approval Motion, the Settlement provides a per-claimant recovery that is strong relative to
`
`
`
`2
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 7 of 31 PageID #:11856
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`comparable privacy matters. And the objectors’ concerns regarding the Settlement’s value and its
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`allocation between the two classes were considered by the Court at preliminary approval and
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`rejected at that time.
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`Moreover, there is no serious challenge to the fact that the injunctive relief is meaningful
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`and addresses the privacy concerns at issue. TikTok, together with the other Defendants’
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`Released Parties, agreed not to take various actions invasive of user privacy unless disclosed
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`expressly in the TikTok Privacy Policy and in compliance with all applicable laws.
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`Settlement § 6.1; Addendum §§ 2.1, 2.5. Moreover, after due diligence conducted by Class Counsel
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`and further negotiations, TikTok agreed to delete any Pre-Uploaded User-Generated Content
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`identified in Section 6.2 of the Settlement Agreement. Addendum § 4.2.
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`The objectors have not raised any new arguments, let alone an argument that warrants
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`upending the Settlement. Accordingly, the Settlement should be finally approved.
`
`1. The Settlement’s value exceeds that of many comparable privacy
`settlements.
`
`In his response brief, objector Mark S. once again contends that the Court should reject
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`the Settlement reached and calculate net expected value based on Reynolds v. Beneficial Nat’l
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`Bank, 288 F.3d 277, 284 (7th Cir. 2002). ECF No. 214, p. 13. The Court already declined this
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`same proposal at preliminary approval. Memorandum Opinion, ECF No. 161, pp. 19-21. In
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`doing so, the Court considered the Seventh Circuit’s post-Reynolds decisions (clarifying
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`Reynolds’ limited application) and the “reliable indicators of a reasonable, negotiated settlement .
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`. . present here.” Id. Still, Mark S. insists the Court should change its mind because he alleges
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`“suspicious circumstances” surrounding the Settlement. ECF No. 214, p. 13.
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`Those circumstances, according to Mark S., are “that: (a) Class Counsel provide[d] no
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`basis for the $92 million settlement amount; and (b) the Settlement is with TikTok, Inc. and not
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`
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`3
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 8 of 31 PageID #:11857
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`the other named Defendants.” ECF No. 187, p. 12.1 But Plaintiffs have repeatedly addressed both
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`the basis for the Settlement amount and the reason the other named Defendants are not
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`signatories to the Settlement.2 Moreover, the Settlement Agreement makes clear that TikTok is
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`acting on behalf of the foreign defendants and that the injunctive relief applies to those
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`defendants to the extent they were engaged in or received data from the App. Id. Nothing about
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`this Settlement is “suspicious” and the Court should once again decline Mark S.’s proposal to
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`attempt a mechanical calculation of the expected value of the ten causes of action in this case.3
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`2. The allocation of the Settlement fund between the two classes is fair and
`was based on meaningful analysis of the strength and value of each claim.
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`Two other objectors, Mr. Helfand and Mr. Litteken, contend that the allocation of the
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`Settlement – and in particular, the provision of additional shares to Illinois Subclass members –
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`is unfair. ECF No. 203, pp. 2-14; ECF No. 212, pp. 10-12. According to Mr. Helfand, the Illinois
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`BIPA claim does not justify different treatment for the Illinois Subclass, because “a careful study
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`1 Mark S. also seems to argue (ECF No. 187, pp. 11-12) that other “suspicious” circumstances
`include: who negotiated the Settlement (it was vetted and presented by Court-appointed counsel);
`the T.K., et al. v. Bytedance Tech. Co., Ltd. et al., No. 1:19-CV-07915 (N.D. Ill.) (“T.K.”)
`preliminary injunction (which in no way affected this action other than the burden of having to
`respond to Mark S.’s arguments regarding it); and the representation of minor class members
`(which the Court has already determined was adequate). These arguments are also addressed in
`the Final Approval Motion.
`2 E.g., Supplemental Memo, ECF No. 137, pp. 7-23 (regarding claims valuation); ECF No. 122-
`7, ¶ 25(a) (Fegan declaration noting “injunctive relief applies to all of the defendants who were
`engaged in the operation of the App or who are involved in receiving or accessing user data
`obtained through the App”); see also ECF No. 122-1, Settlement Agreement, ¶¶ 2.11, 2.34 and
`Addendum No. 1, ¶ 2.5 (Settlement applicable to all Defendants); ECF No. 122, pp. 2, 4-6
`(noting TikTok’s repeated assertions that the foreign defendants lack sufficient contacts to
`establish personal jurisdiction).
`3 Mark S.’s own failed attempt to implement his proposed calculation evinces its shortcomings.
`See Supplemental Memo, ECF No. 137, n.13 (noting Mark S.’s application of a formula that
`Reynolds repeatedly described as “arbitrary”; his failure to apply a discount based on the likely
`duration of the litigation; his failure to recognize that his “medium”-value estimate would be the
`largest recovery in history; his incorrect math).
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`4
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 9 of 31 PageID #:11858
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`of applicable laws reveal [sic] that other states have their own unique statutory protections. . .
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`just like BIPA.” ECF No. 203, pp. 8-9.
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`Far from a “careful study,” Mr. Helfand pastes a table of privacy laws from a law firm’s
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`website. Id. But the statutes in that table are not “just like BIPA.” The table reflects that none of
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`those statutes provides both a private right of action and statutory damages (like BIPA does),
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`except for the City of Portland statute (which bars certain use of facial recognition in “Places of
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`Public Accommodation,” Portland City Code, §§ 34.10.010-34.10.050) and the California
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`Consumer Privacy Act (which provides a limited private right of action for certain security
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`breaches, Cal. Civ. Code § 1798.150 (Deering)). See id. Neither of those claims is at issue here
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`or was alleged in the consolidated complaint. ECF No. 114.
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`As to Mr. Litteken, he insists that the BIPA claim lacks value because TikTok said so.
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`ECF No. 212, pp. 10-11. TikTok denied all wrongdoing and Plaintiffs would dispute that denial
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`– but the BIPA claim (relatively new and untested, carrying statutory damages, and having
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`higher historical settlement amounts) carries unique value to Plaintiffs and unique risk to
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`TikTok. And while Mr. Litteken might disagree with the balancing of these risk and value
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`considerations, the reality is that he was not at the negotiating table nor was he involved in
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`confirmatory discovery, but Court-appointed Co-Lead Counsel was.
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` Indeed, the Court appointed a Leadership Group of nine attorneys. And independent
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`attorneys outside of the Leadership Group were charged with undertaking their own assessment
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`of the claims’ value and determining the appropriate allocation of Settlement funds. Mr.
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`Litteken’s attacks on this process have no merit. Rather, they are grounded in his continued
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`
`
`5
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`

`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 10 of 31 PageID #:11859
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`disparaging and demonstrably untrue statements about Ms. Carroll,4 ignoring that there are
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`dozens of other experienced law firms, and even more attorneys among them, who have
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`considered this Settlement and believe it to be the best result for the Class.
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`Mr. Litteken’s suggestion that he better understands what would benefit the Class than
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`the Leadership Group is belied by his arguments about continued litigation. According to Mr.
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`Litteken, if continued litigation showed “their BIPA claim is meritless[,] . . . the national class
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`would receive a fair allocation of the settlement funds.” ECF No. 212, p. 12. A ruling that the
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`BIPA claim is meritless could cause the overall value of the case to plummet along with the
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`settlement pressure on TikTok. There is no suggestion that TikTok would be willing to pay the
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`same amount if the BIPA claim were no longer alive, that Nationwide Class Members would
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`receive more per claim, or that TikTok would settle at all. To be sure, there are other claims
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`alleged in this matter, but the core privacy violation underlying the case and supporting many of
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`those other claims is the collection of biometric data.5
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`The additional compensation allocated to the Illinois Subclass is fair.
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`3. The Nationwide Class and Illinois Subclass were adequately represented,
`including by Co-Lead Counsel, Class Representative counsel, independent
`subclass counsel, and numerous Class Representatives.
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`Mr. Helfand complains there is the appearance of conflict, if not an actual one, with
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`regard to the representation of the Illinois and Nationwide classes. He claims it “remains murky”
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`4 For example, Mr. Litteken calls Ms. Carroll “unappointed” though she was Court-appointed
`interim lead counsel at the time the mediation was scheduled and is now Court-appointed Co-
`Lead Counsel; he calls her client “secret,” though her client is identified by initials as all minor
`clients are. ECF No. 212, p. 11. And even if his claims were true, they would not undermine the
`value of the Settlement.
`5 And once again, Mr. Litteken ignores the material risk to the entire case raised by TikTok’s
`arbitration argument. His briefs do not reference the risk of arbitration at all. See ECF Nos. 184,
`212.
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`
`
`6
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`

`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 11 of 31 PageID #:11860
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`who independent allocation counsel were, how much time they spent evaluating the claims, and
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`their methodology. ECF No. 203, pp. 3-4. Answers to each of those questions are in the record.
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`E.g., ECF Nos. 122-7, ¶¶ 22, 25(f) (Declaration of Elizabeth Fegan regarding allocation process
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`and independence); 122-10 (Declaration of Jonathan Rotter regarding his role as counsel for the
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`Nationwide Class and the allocation process); 122-11 (Declaration of James B. Zouras regarding
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`his role as counsel for the Illinois Subclass and the allocation process); 197-24 (Rotter fee
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`declaration); 197-34 (Zouras fee declaration).6
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`Mr. Helfand also pastes discussions of numerous irrelevant cases, taken from various
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`online resources, addressing the adequacy of representation of competing classes with divergent
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`present and future injuries. ECF No. 203, pp 4-8.7 The facts in those cases are not present here.
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`There is no “future” or “latent” injury subclass; there is no set-aside for future injuries; there is
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`no intraclass conflict raised by the allocation of an insurance policy; there is no opt-out
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`limitation. The class here was unified with a common goal of establishing TikTok’s privacy
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`violations – with violations of BIPA serving to bolster other, more general privacy claims. If
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`6 Mr. Helfand expresses concern with the Final Approval Motion’s use of the word
`“recommendation” in reference to independent allocation counsel’s determination, suggesting
`they did not have independence if they did not have final authority. Ultimately, the decision
`whether to present the Settlement for court approval rested in the hands of Co-Lead Counsel, and
`the decision whether to approve the Settlement and the Plan of Allocation rest with the Court.
`Co-Lead Counsel presented independent allocation counsel’s determination to the Court without
`modification.
`7 E.g.,
`https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2407&context=faculty_scholarship
`(quoted without quotation or citation on p. 4)
`https://www.litedepalma.com/resolving-introclass-conflicts-to-satisfy-the-adequacy-requirement-
`for-class-certification (quoted without quotation or citation on p. 5).
`https://www.mondaq.com/unitedstates/antitrust-eu-competition-/514934/approval-of-huge-class-
`settlement-reversed-based-on-conflict-of-interest-of-class-counsel-representing-subclasses-with-
`diverging-interests (quoted without quotation or citation on pp. 6-7)
`
`
`
`7
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`

`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 12 of 31 PageID #:11861
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`those non-BIPA claims had posed a stronger value to Plaintiffs or risk to TikTok, the Settlement
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`fund could have reflected that.
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`Moreover, at each stage of this case, Illinois and non-Illinois Class Members have been
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`well represented: Before the creation of the MDL, Co-Lead Counsel Ekwan Rhow initially
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`spearheaded litigation in California on behalf of only non-Illinois plaintiffs and Co-Lead Counsel
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`Katrina Carroll initially spreadheaded litigation in Illinois on behalf of Illinois-only plaintiffs.
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`Some of the participants in the second mediation (at which the initial Settlement was reached)
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`represented Illinois plaintiffs and others represented non-Illinois plaintiffs. Likewise, the Court-
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`appointed Leadership Group who vetted the Settlement, and the retained counsel for the Class
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`Representatives who considered the Settlement and advised their clients, include attorneys
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`retained by plaintiffs from Illinois, plaintiffs from outside of Illinois, and both. And Mr. Rotter,
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`appointed to negotiate allocation on behalf of the Nationwide Class, represented non-Illinois
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`plaintiffs, while Mr. Zouras, appointed to negotiate allocation on behalf of the Illinois Subclass,
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`represented Illinois plaintiffs.8 See ECF No. 122-2 (Class Representative list).
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`Both the allocation process and its result were fair, and the Settlement should be
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`approved.
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`B. The Claims rates indicate widespread support for the Settlement.
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`As discussed in the Final Approval Motion, the claims rates and low number of objectors
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`to the Settlement reflect Class Members’ strong support. Nevertheless, Mr. Litteken argues that
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`the Settlement should not be approved because “just 1.4% of the Class” filed claims. ECF No.
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`212, pp. 2-4. That contention not only disregards the 1.4 million class members who seek to
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`8 While independent counsel had the freedom to determine any allocation of funds, without
`regard to the range set forth in the initial Settlement Agreement (because that provision was
`renegotiated and modified with the Addendum), their determination ultimately fell within that
`original range, which was reached at mediation overseen by Retired Judge Layn Phillips.
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`
`
`8
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`

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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 13 of 31 PageID #:11862
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`recover in this Settlement, it ignores a number of relevant factors regarding the claims rate,
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`including that: (1) the 1.4% claims rate is a conservatively low number, resulting from a class-
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`size estimate that is likely inflated by duplicate accounts; (2) a 1.4% claims rate is typical and
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`reasonable for a class of this size; and (3) the claims for the Illinois Subclass is conservatively
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`estimated at 13%.
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`Plaintiffs cited extensive authority recognizing that a 1.4% claims rate is reasonable –
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`including the declaration filed by the expert retained by Edelson PC (Mr. Litteken’s counsel) in
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`In re Facebook Biometric Info. Privacy Litig., 522 F. Supp. 3d 617 (“Facebook BIPA”). E.g.,
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`ECF No. 195, pp. 22-23. Mr. Litteken nevertheless contends the claims rate here is “contrary to
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`the recent trend of double-digit claims rates in privacy class actions.” ECF No. 212, p. 3. In eight
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`of the ten cases Mr. Litteken cites, however, the classes had fewer than one million members.
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`ECF No. 212, pp. 3-4.9 As the expert noted in Facebook BIPA, larger class sizes have lower
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`claims rates, and classes with more than 2.7 million members, like this one, average claims rates
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`of 1.4% (ECF No. 195, p. 22) – exactly what occurred here, even using the parties’ most
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`conservative claims rate estimates.
`
`
`9 Crumpton v. Octapharma Plasma, Inc., No. 19-cv-8402, ECF Nos. 88, 92 (N.D. Ill. Feb. 16,
`2022) (over 20% claims rate for class of approximately 77,000 members); Sekura v. L.A. Tan
`Enters., Inc., No. 2015-CH-16694 (Cir. Ct. Cook Cnty. Dec. 1, 2016) (15% claims rate for
`approximately 2,600-member class); Kusinski v. ADP LLC, No. 2017-CH-12364 (Cir. Ct. Cook
`Cnty. Feb. 10, 2021) (13% claims rate for approximately 320,000-member class); Thome v.
`NOVAtime Tech., Inc., No. 19-cv-6256, ECF Nos. 84, 90 (N.D. Ill. Mar. 8, 2021) (10% claims
`rate for approximately 68,000-member class); Higgins v. TV Guide Mag., LLC, No. 15-cv-
`13769, ECF Nos. 79, 81 (E.D. Mich. Dec. 19, 2018) (15% claims rate for approximately 90,000-
`member class); Raden v. Martha Stewart Living Omnimedia, Inc., et al., No. 16-cv-12808, ECF
`No. 52 (E.D. Mich. July 17, 2019) (13% claims rate for approximately 136,600-member class);
`Ruppel v. Consumers Union of United States, Inc., No. 16-cv-02444, ECF Nos. 98, 111
`(S.D.N.Y. Dec. 4, 2018) (16.8% claims rate for approximately 560,000-member class); Moeller
`v. American Media, Inc., No. 16-cv-11367, ECF Nos. 40, 42 (E.D. Mich. Sept. 28, 2017) (10%
`claims rate for approximately 330,000-member class).
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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 14 of 31 PageID #:11863
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`In the two cases Mr. Litteken cited with larger class sizes– Facebook BIPA and Equifax –
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`both courts remarked that the claims rates were “unprecedented[].” 522 F. Supp. 3d at 629; In re
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`Equifax Customer Data Sec. Breach Litig., 999 F.3d 1247, 1259 (11th Cir. 2021). Two
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`“unprecedented” double-digit claims rates since 2019 hardly amounts to a “trend” that sets a new
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`standard for class actions. But even if they did, the Illinois Subclass claims rate is at least 13%
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`here, i.e., the double digits Mr. Litteken hoped to see, but doesn’t mention in his brief. In fact,
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`Mr. Litteken entirely ignores the 13% Illinois claims rate, even while pointing to the Illinois-only
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`claims rate in Facebook BIPA as a comparator. The claims rates here were reasonable.
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`C. The Notice Plan was successful.
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`This case involved an extensive, above-standard Notice Plan – including email, in-App
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`notice, media, social media, and paid search campaigns. Those efforts were successful. The
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`claims rates (conservatively 1.4% for the Nationwide Class and 13% for the Illinois Subclass)
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`and the Claims Administrator’s declaration (ECF No. 196) reflect that the Notice reached the
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`Class. Nevertheless, Mr. Litteken continues to press arguments regarding notice that this Court
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`has already rejected, suggesting that claims rates are low (which is itself untrue) because the
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`notice plan was insufficient. ECF No. 212, pp. 2-7.
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`In support, Mr. Litteken suggests that the details about notice are too vague and fail to
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`establish that individual notice was provided to the class. ECF No. 212, pp. 5-7. That is not true,
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`and the cases Mr. Litteken cites are inapposite. In Powers v. Filters Fast, LLC, No. 20-cv-982,
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`2022 U.S. Dist. LEXIS 27967 (W.D. Wis. Feb. 15, 2022), the “administrator’s explanation of its
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`notice procedures [wa]s rather vague” and made it “impossible for the court to determine
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`whether” notice was adequately communicated. Id. at *2-3. The administrator in Powers
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`provided a cursory four-page declaration, noting fewer than 4,000 claims and providing little
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`information about the claims process, which was still underway. Id. at ECF No. 53, attached here
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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 15 of 31 PageID #:11864
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`as Exhibit A. Here, in contrast, the Claims Administrator discusses its process and reach in detail
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`– including, for example, by providing details about email deliverability, impressions for each
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`aspect of the media notice campaign, website visit counts, and hotline call quantity and time.
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`ECF No. 196, e.g., ¶¶ 10, 11, 16-36. See also ECF No. 122-12 (administrator’s declaration
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`regarding Notice plan).
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`In In re TransUnion Corp. Priv. Litig., No. 00-CV-4729, 2008 WL 11358136, 2008 U.S.
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`Dist. LEXIS 128501 (N.D. Ill. Jan. 3, 2008), the court found notice inadequate where it was “in
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`the form of a four line post-script attached to the bottom of a regularly scheduled mailing which
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`does not include the information required for proper notice under Rule 23(c).” Id. at *31-33.
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`Here, the in-App notice made clear that the message related to a “Class Action Settlement” and
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`recipients “may be eligible for a class settlement payment,” provided the Settlement Website,
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`and the email notice included substantial detail about the Settlement and Class Members’ rights.
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`ECF No. 196, ¶ 11 (details regarding in-App notice); id. at Exhibit B (email notice).
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`The rest of Mr. Litteken’s complaints are rooted in his contention that he cannot tell
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`“what notice worked and what didn’t.” ECF No. 212, p. 5. To be clear: notice worked. And
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`while Mr. Litteken has a personal interest in contending that certain aspects of the notice
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`“worked” better than others (having sought a service award related to in-App notice, ECF No.
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`193), and a personal interest in the Court ordering yet more notice (for which he “may request
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`additional compensation for his efforts and his counsel will seek fees,” id. at p. 4) – he is not
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`entitled to use the Class’s or the Court’s resources to engage in a fishing expedition to support
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`Case: 1:20-cv-04699 Document #: 225 Filed: 05/04/22 Page 16 of 31 PageID #:11865
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`his personal agenda.10 There is simply no credible concern about the strategy, efficacy, or result
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`of the Notice here, let alone is there an argument that additional notice would benefit the Class
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`(though it would increase cost and cause delay).
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`Rather than make any substantive challenge to the Notice strategy, Mr. Litteken grasps at
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`straws to identify purported gaps in the detail provided about the Notice’s results. In doing so, he
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`ignores the highly detailed record here, and cites no cases supporting the requirement for any
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`additional information.
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`He complains, for example, that no information is provided about how many Class
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`Members did not have an email address or whether multiple emails were associated with a single
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`account. ECF No. 212, p. 5. In truth, the parties have been transparent about Class Member email
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`addresses throughout the Settlement approval process. As repeatedly disclosed, Class Membe