Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 1 of 21 PageID #:11887
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`IN RE: TIKTOK, INC., CONSUMER
`PRIVACY LITIGATION
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`This Document Related 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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`REPLY IN SUPPORT OF CHRISTINA TRAVIS’ OPPOSED MOTION TO
`ACCEPT MOVANTS’ TIMELY AND VALID REQUESTS FOR
`EXCLUSION FROM THE SETTLEMENT, IN THE ALTERNATIVE,
`OBJECTIONS TO CLASS SETTLEMENT FOR FAILURE TO PROVIDE
`NOTICE REGARDING THE OPT OUT PROCEDURE
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 2 of 21 PageID #:11888
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`TABLE OF CONTENTS
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`INTRODUCTION
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`COUNSEL WAS NOT PROHIBITED FROM ADVERTISING
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`1
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`3
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`I.
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`II.
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`III. TIKTOK’S UNFOUNDED ATTACKS ON COUNSEL’S ETHICS ARE
`IMPROPER AND DO NOT WARRANT INVALIDATION OF ANY OPT OUTS 6
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`IV. MOVANTS’ OPT OUTS ARE EFFECTIVE AND TIMELY; ALTERNATIVELY,
`MOVANTS SHOULD BE ENTITLED TO CURE ANY DEFECTS
`11
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`A. Movants Complied With the Court Approved Notice Requirements
`B. TikTok's Individual Challenges are Irrelevant and Baseless
`C. Movants Should Be Afforded More Time to Correct Any Defects
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`15
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`VI. CONCLUSION
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 3 of 21 PageID #:11889
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Abernathy v. Doordash, Inc.,
`438 F. Supp. 3d 1062 (N.D. Cal. 2020) ...............................................................................1
`Adams v. Bellsouth Telcoms.,
`2001 U.S. Dist. LEXIS 24821 (S.D. Fla. Jan. 29, 2001) .....................................................4
`Allianz Glob. Invs. GMBH v. Bank of Am. Corp.,
`463 F. Supp. 3d 409 (S.D.N.Y. 2020) ................................................................................13
`Bates v. State Bar of Arizona,
`433 WS. 350 (1977) .........................................................................................................2, 4
`Chalian v. CVS Pharmacy, Inc.,
`No. 2:16-cv-8979-AB-AGR, 2020 U.S. Dist. LEXIS 206078,
`(C.D. Cal. Oct. 30, 2020) ...............................................................................................2, 10
`Fox v. Iowa Health Sys.,
`No. 18-cv-327-JDP, 2021 U.S. Dist. LEXIS 36880 (W.D. Wis. Feb. 26, 2021) ..............14
`Georgine v. Amchem Prods.,
`160 F.R.D. 478 (E.D. Pa. 1995) .........................................................................................10
`Hallie v. Wells Fargo Bank, N.A.,
`No. 2:12-cv-00235-PPS-APR, 2015 U.S. Dist. LEXIS 54481
`(N.D. Ind. Apr. 27, 2015).................................................................................................5, 8
`In re Agent Orange Prod. Liab. Litig.,
`800 F.2d 14 (2d Cir. 1986)...................................................................................................5
`In re Brand Name Prescription Drugs Antitrust Litig.,
`171 F.R.D. 213 (N.D. Ill. 1997) .........................................................................................14
`In re Diet Drugs Prods. Liab. Litig.,
`282 F.3d 220 (3d Cir. 2002).................................................................................................5
`In Re Facebook Biometric Info. Privacy Litig.,
`No. 15-03747 (N.D. Cal. Sept. 22, 2020) ........................................................................2, 9
`In re Gormally,
`212 N.J. 486 (N.J. Dec. 19, 2012)........................................................................................4
`In re Hager,
`812 A.2d 904 (D.C. 2002) ...................................................................................................4
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`In re McKesson HBOC, Inc. Sec. Litig.,
`126 F.Supp. 3d 1239 (N.D. Cal. 2000) .............................................................................10
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`In re NFL Players’ Concussion Injury Litig.,
`961 F. Supp. 2d 708 (E.D. Pa. 2014) ...................................................................................5
`In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,
`No. 05-MD-1720 (JG), 2014 U.S. Dist. LEXIS 142213 (E.D.N.Y. Oct. 3, 2014) ............10
`In re Vitamins Antitrust Class Actions,
`356 U.S. App. D.C. 70, 73, 327 F.3d 1207 (2003) ............................................................14
`In re VMS Sec. Litig.,
` No. 89 C 9448, 1992 U.S. Dist. LEXIS 12141 (N.D. Ill. Aug. 13, 1992) ........................15
`Kleiner v. First Nat’l Bank,
`751 F.2d 1193 (11th Cir. 1985) ...........................................................................................9
`Larson v. AT&T Mobility LLC,
`No. 07-5325, 2009 WL 10689759 (D.N.J. Jan. 16, 2009) ...................................................5
`McCubbrey v. Boise Cascade Home & Land Corp.,
`71 F.R.D. 62 (N.D. Cal. 1976) ...........................................................................................15
`Miracle-Pond v. Shutterfly, Inc.,
`No. 19-cv 04722, 2020 U.S. Dist. LEXIS 86083 (N.D. Ill. May 15, 2020) ........................1
`Mullen v. GLV, Inc.,
` 334 F.R.D. 656 (N.D. Ill. 2020) ..........................................................................................9
`Ortiz v. Fibreboard Corp.,
`527 U.S. 815 (1999) .............................................................................................................1
`Phillips Petroleum Co. v. Shutts,
`472 U.S. 797 (1985) .............................................................................................................1
`Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
`507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993) ...........................................14
`Snyder v. Ocwen Loan Servicing, LLC,
`2019 U.S. Dist. LEXIS 80926 ...........................................................................................14
`Wal-Mart Stores, Inc. v. Dukes,
`131 S. Ct. 2541, 2559 (2011) ...............................................................................................1
`Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,
`471 U.S. 626, 85 L. Ed. 2d 652, 105 S. Ct. 2265 (1985) .....................................................4
`Federal Statutes and Regulations
`Fed R. Civ P. 6(b) ..........................................................................................................................14
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 5 of 21 PageID #:11891
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`Other Authorities
`ABA Formal Op. 93-371 .................................................................................................................4
`ABA Section of Litigation Ethical Guidelines for Settlement Negotiations,
`August 2002, § 4.2.1 ............................................................................................................4
`ACC Docket, John K. Villa, Practice Restrictions in Settlement Agreements (June 2007) ............4
`Ariz. Ethics Op. 90-06 (1990)..........................................................................................................4
`Cal. State Bar Ass’n Formal Op. No. 1988-104 ..............................................................................4
`COPRAC Formal Opinion No. 1988-104 ........................................................................................4
`Ill. R. Prof’l Conduct R. 5.6(b) ........................................................................................................4
`LACBA Ethics Opinion 468 ............................................................................................................4
`LECBA SF, Opinion 2012-1 ...........................................................................................................5
`Md. Bar Ass’n Ethics Op. 82-53 (1982) ..........................................................................................4
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 6 of 21 PageID #:11892
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`I.
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`INTRODUCTION
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`In filing its opposition to Christina Travis’ (and 2,253 movants’) Motion, TikTok, Inc.
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`(“TikTok”) seeks to “protect”1 the consumers it victimized from exercising their constitutionally2
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`and contractually protected rights and prevent them from proceeding in a private arbitration action.
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`Each Movant entered into an arbitration agreement with TikTok (which TikTok drafted),3
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`governed by the Federal Arbitration Act, which shall apply to all disputes between them and
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`TikTok. Each Movant, retained by counsel, knowingly and voluntarily seek to be excluded from
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`settlement, and vindicate their privacy rights through their private arbitrations. 4 Each Movant has
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`timely opted out of the settlement, and, prior to the exclusion deadline, placed TikTok on notice
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`of their request to proceed in an arbitration. Indeed, TikTok and Movants initiated resolution
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`discussions before the opt out deadline, which are ongoing. Therefore, at all times, TikTok was
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`aware of the Movants’ desire to be excluded from settlement, and was in possession of Movants’
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`names, and usernames/contact information.
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`1 TikTok makes numerous unprofessional and baseless ethical attacks on Movants’ counsel. See
`ECF No. 224, p. 1 (“mass opt outs were also improperly solicited using deceptive advertising that
`ignored and disregarded the Court-approved class communications,”) p. 5-6 (similar), p. 14
`(unprofessionally arguing that “class members may have been victims of the law firms.”).
`2 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2559 (2011) (“In the context of a class action
`predominantly for money damages we have held that absence of notice and opt-out violates due
`process.” (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)); Ortiz v. Fibreboard
`Corp., 527 U.S. 815, 847–48 (1999) (citing Shutts for proposition that due process requires, at
`minimum, absent plaintiff be given opportunity to opt out of class).
`3 https://www.tiktok.com/legal/terms-of-service?lang=en (last visited May 2, 2022)
`4 Similarly to defendant in Doordash, TikTok prefers selective enforcement of its agreement. See
`Abernathy v. Doordash, Inc., 438 F. Supp. 3d 1062, 1068 (N.D. Cal. 2020) (employees compelled
`arbitration after Doordash refused to proceed in an arbitration); see also Miracle-Pond v.
`Shutterfly, Inc., No. 19-cv 04722, 2020 U.S. Dist. LEXIS 86083, at *2 (N.D. Ill. May 15, 2020)
`(granting motion to compel arbitration and staying class action where contract was formed with
`hyperlinked policies near a sign-in button, similar to TikTok).
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`First, the Movants’ motion should be granted because TikTok does not dispute that the
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`absentee class members have an absolute right to opt out of the settlement and proceed in an
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`arbitration. Instead, its entire opposition seeks to establish a bright line rule prohibiting attorneys’
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`non-misleading, and truthful “mass” solicitations, where no such rule exists. The U.S. Supreme
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`Court held that bans on lawyer advertising are unconstitutional. Bates v. State Bar of Arizona, 433
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`WS. 350 (1977). The reason for TikTok’s unfounded, unprofessional, speculative, and unethical
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`attacks on Movants’ counsel and one posting used by Freedom Law Group, is because in a few
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`rare circumstances courts questioned some misleading solicitations and demanded corrective
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`actions be taken before the exclusion deadline.5 Here, TikTok cannot point to any misleading
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`communications from any law firm. In a desperate attempt, TikTok presents this Court with an
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`unauthenticated and incomplete advertisement that appears to be from the Class Administrator,
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`shamefully and falsely claiming that it belongs to one of the law firms. TikTok then includes in its
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`motion an unambiguous and truthful post from Freedom Law Firm, which unambiguously seeks
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`to represent individuals who wish to opt out of the class settlement. Importantly, given that TikTok
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`was aware even before the exclusion deadline of the Movants’ desire to opt out, and their attorneys’
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`allegedly “misleading” and “disruptive” advertisements, the question is – why didn’t TikTok take
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`5 See In Re Facebook Biometric Info. Privacy Litig., No. 15-03747 (N.D. Cal. Sept. 22, 2020),
`ECF No. 487 (Exh. I) (admonishing counsel for running an advertisement on Facebook, where
`notice was also given, inviting class members to “fill out a claim” which caused confusion by a
`number of class members, and reiterating that the solicitation process should be “forthright, candid,
`and honest, and it cannot be disruptive); Chalian v. CVS Pharmacy, Inc., No. 2:16-cv-8979-AB-
`AGR, 2020 U.S. Dist. LEXIS 206078, at *14 (C.D. Cal. Oct. 30, 2020) (issuing a temporary
`restraining order (which was subsequently lifted to allow counsel to communicate with their
`clients) upon request of both class counsel and defendant, restraining communications by certain
`absentee class members and their agents, where numerous class members received an unsolicited
`text message from a toll-free number warning them about the “danger” of the imminent settlement,
`and provided a link to an extensive website containing a myriad of inaccurate statements about
`class settlement).
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 8 of 21 PageID #:11894
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`any corrective action or alert this Court? The answer is simple – because the advertisements were
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`not misleading, or disruptive.
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`Second, TikTok admits that each opt out was submitted by unique individuals, and thus,
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`the opt outs must be processed. See ECF No. 224 (“TT Oppo.”), p. 2. The Class Administrator
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`owed a fiduciary duty to absentee class members to process the separate opt outs and not to
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`“invalidate” them at TikTok’s request in order to minimize their liability.
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`Third, none of the opt outs were rejected for any defects. The Notice given to the class did
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`not even require the information TikTok lists as missing. Importantly, TikTok and the Class
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`Administrator were on notice of the Movants’ names, usernames and/or contact information, and
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`their desire to be excluded from the settlement. At the very minimum, the opt outs were in
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`substantial compliance, and any inadvertent errors resulted from excusable neglect. Counsel for
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`Movants compiled contact information for TikTok and this Court to again verify their clients’
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`information. See Exh. J, Exh. L. Therefore, Movants’ Motion should be granted.
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`II.
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`COUNSEL WAS NOT PROHIBITED FROM ADVERTISING
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`TikTok’s main6 argument is that the Settlement Agreement (“SAR”) and the Court placed
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`an unconstitutional ban on counsel prohibiting soliciting and representing groups of individuals.
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`TT Oppo p. 27 (“mass” opt-outs occur when numerous individual opt outs are solicited and
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`6 TikTok spends a majority of its arguments within Sections II and III reciting the SAR and the
`Court’s Order, neither of which prohibit mass solicitations by attorneys. TikTok does not argue
`that the SAR terms were incorporated into the Notice or were required for a valid opt out. The
`Notice sent to class members only stated that a valid opt out must contain a signature under penalty
`of perjury. The penalty of perjury language or TikTok’s “Exclusion” form were never approved
`by the Court.
`7 TikTok’s proposed definition of the “mass” opt out is not within the SAR or any of the Court’s
`orders, and contradicts the language within the SAR where the words “mass” and “class” appear
`to be used interchangeably. SAR §10.1. TikTok’s counsel also refers to the Movant’s motion as a
`“mass” filing, which again confirms their understanding that a “mass” filing means a single filing
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 9 of 21 PageID #:11895
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`submitted jointly as part of a coordinated campaign by the same law firm or group of firms.”); id.
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`p. 3. In TikTok’s view, absentee class members not only should be deprived of their due process
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`rights to opt out, they also lose a right to hire counsel, and all law firms are entirely banned from
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`their constitutional rights8 to represent or solicit representation of individuals who wish to be
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`excluded. This position is contrary to the law, ethics, and reason. If the parties’ intentions were to
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`prohibit attorneys’ solicitations of clients, such settlement provision would be unethical, imposing
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`restriction on counsel’s practice of law and consumers’ rights to be represented by counsel of their
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`choosing.9 Unsurprisingly, Class Counsel does not join TikTok in its arguments and interpretations
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`and is not opposing the requested exclusions.
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`on behalf of others. See TT Oppo, pp. 1, 11 (“Defendant . . . opposes the mass motion” and “Here,
`the 2,254 individuals who are part of the mass motion . . .”).
`8Bates, 433 U.S. at 383 (holding that attorneys hold constitutional right to not be subjected to
`blanket suppression on solicitations); Zauderer v. Office of Disciplinary Counsel of Supreme Court
`of Ohio, 471 U.S. 626, 85 L. Ed. 2d 652, 105 S. Ct. 2265 (1985) (struck down a ban on attorney
`advertising despite “mere possibility” that some members of population might find advertising
`“offensive”)
`9 See e.g. Ill. R. Prof’l Conduct R. 5.6(b) (prohibiting agreements with a restriction on lawyer’s
`right to practice); ABA Section of Litigation Ethical Guidelines for Settlement Negotiations,
`August 2002, § 4.2.1 (prohibiting provisions restricting lawyer’s representation of clients in the
`future litigation); ABA Formal Op. 93-371 (commenting that a defense lawyer may not require a
`provision prohibiting counsel from representing clients); LACBA Ethics Opinion 468 (March 16,
`1992) (opining that a provision prohibiting lawyer’s representation of future plaintiffs is
`unethical); Md. Bar Ass’n Ethics Op. 82-53 (1982) (concluding that attorney may not ask for or
`agree to a provision prohibiting counsel from rendering future services to potential clients in”
`pending, parallel, or future litigation); Cal. State Bar Ass’n Formal Op. No. 1988-104 (similar);
`see also In re Gormally, 212 N.J. 486 (N.J. Dec. 19, 2012) (reprimanding attorney as a result of a
`provision imposing restrictions on lawyer’s right to practice); In re Hager, 812 A.2d 904, 919
`(D.C. 2002) (finding a provision precluding counsel from representing future consumers on similar
`claims to be unethical and against public policy); Adams v. Bellsouth Telcoms., 2001 U.S. Dist.
`LEXIS 24821, *45 (S.D. Fla. Jan. 29, 2001) (recommending substantial sanctions and ethical
`courses for inclusion of a settlement provision restricting their practice of law). See also ACC
`DOCKET, John K. Villa, Practice Restrictions in Settlement Agreements (June 2007) (discussing
`ethics and ethical opinions concerning various limitations on practice of law). Agreements
`restricting lawyer’s right to advertise as a result of a settlement also have been found to be
`unethical. ABA Formal Op. 00-417; Colo. Ethics Op. 92; Ariz. Ethics Op. 90-06 (1990). In fact,
`even less restrictive provisions were determined to be unethical. COPRAC Formal Opinion No.
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`This Court did not issue a uniform ban on attorney advertisement; it only prohibited
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`attorneys from submitting a single opt out on behalf of multiple clients. ECF No. 162 p. 30; see
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`e.g. In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 226 (3d Cir. 2002) (disallowing “mass opt
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`outs” i.e., a single opt out filing signed by attorney on behalf of many individuals); Hallie v. Wells
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`Fargo Bank, N.A., No. 2:12-cv-00235-PPS-APR, 2015 U.S. Dist. LEXIS 54481, at *10-11 (N.D.
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`Ind. Apr. 27, 2015) (same); Larson v. AT&T Mobility LLC, No. 07-5325, 2009 WL 10689759, at
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`*3 (D.N.J. Jan. 16, 2009) (same). This was not the case – as each individual signed their separate
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`opt out requests. TikTok cannot point to a single sentence from the Court’s order which places a
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`uniform ban on “solicitations.”
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`Moreover, TikTok is mistaken to argue that a failure to impose a restriction on counsel’s
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`practice of law and solicitation of exclusions could hypothetically terminate a settlement (although
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`not this one). This was never the Court’s concern, nor does TikTok argue that it would have
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`terminated this lucrative settlement as a result of .00002% of filed exclusions. Additionally, Courts
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`have a “fiduciary responsibility, as the guardian of the rights of the absentee class members,” and
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`not defendant. In re NFL Players’ Concussion Injury Litig., 961 F. Supp. 2d 708, 713 (E.D. Pa.
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`2014); see also In re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 18-19 (2d Cir. 1986) (“when
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`a potential conflict arises between the named plaintiffs and the rest of the class, . . . the attorney’s
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`duty to the class requires him to point out conflicts to the court so that the court may take
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`appropriate steps to protect the interests of absentee class members”). TikTok’s argument is
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`hypothetical and baseless.
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`1988-104 (opining that counsel’s agreement not to mention a particular case in his advertising
`material is unethical); LECBA SF, Opinion 2012-1 (concluding that prohibiting disclosure of
`public facts regarding past representation is unethical).
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`TikTok also contends that Plaintiffs’ Lead Counsel negotiated a premium by prohibiting
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`solicitations of mass opt outs in lieu of a blow-up clause. It is highly doubtful that Plaintiffs Lead
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`Counsel would engage in unethical tactics while serving the role of class counsel. Also, contrary
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`to TikTok’s arguments, “negotiated benefit to all parties” must be disregarded when it comes to
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`unethical provisions restricting practice of law or violative of due process rights of absentee class
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`members.10 Thus, Movants must be allowed to opt out of the settlement.
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`III.
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`TIKTOK’S UNFOUNDED ATTACKS ON COUNSEL’S ETHICS ARE
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`IMPROPER AND DO NOT WARRANT INVALIDATION OF ANY OPT OUTS
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`TikTok’s unprofessional and unsubstantiated attacks on well-reputed and ethical firms
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`should be disregarded. TikTok initially presents two unauthenticated advertisement pages, falsely
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`claiming that both belong to the Movants’ counsel. The first advertisement was not used by either
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`of the law firms. The undersigned counsel conducted a google search of the image and found this
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`image on a website generating memes.11 It is likely that the ad was run by Angeion Group LLC.
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`See ECF No. 196 ¶¶ 12 (explaining that it posted ads on websites where TikTok class members
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`were predicted to visit). No law firm would run an ad that does not state “attorney advertising.”
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`TikTok does not challenge any advertisements by Clarkson or Kind Law. As to the truthful
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`posting from Freedom Law Firm, it unambiguously and truthfully stated that “attorneys Freedom
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`Law Firm are assisting individuals who are interested in being excluded from the class action.” TT
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`Oppo, p. 7. TikTok fails to show what is deceptive about this advertisement. Although TikTok
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`10 It is highly unlikely that even if the Settlement Agreement contained a “blow-up” clause that
`TikTok would exercise it simply because less than 2,300 absentee class members elected to opt
`out of a settlement agreement, given that it would obtain release of liability for nearly 100 million
`individuals.
`11 See https://en.dopl3r.com/index.php/memes/dank/tiktok-lawsuit-user-data-allegedly-shared-
`with-third-parties-users-could-be-compensated-share-me-inbox/1471220 (last visited May 2,
`2022).
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`takes issue with a statement that the law firm is willing to represent individuals “seek[ing] a more
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`significant monetary recovery,” TikTok does not dispute that the statement is truthful.
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`Counsel was not required to include every possible disclosure imaginable and provide
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`exhaustive legal advice on every online post, as TikTok suggests. TikTok fails to explain why
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`counsel was required to provide a long list of additional disclosures and caveats such as “warning
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`class members that any attempt to do so would forever forfeit their right to a payment from the
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`existing Settlement,” the risks of litigation, that “Court has found settlement fair, reasonable and
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`adequate” and so on. TT Oppo pp. 6-8. It is not possible or practical to provide every piece of legal
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`advice and disclose all possible risks and benefits of one’s individual proceeding through an
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`advertisement. Frank and full legal advice occurs within the sacred and confidential context of the
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`attorney-client relationship. Moreover, not a single opt out has claimed they were deceived or
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`confused by the opt out advertisements. TikTok’s suggestion to include a link to the Court-
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`approved settlement notice or website does not fair any better. Doing so would be misleading, and
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`create a false impression that the counsel is associated with the class counsel.
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`TikTok also mistakenly takes issue with the “hashtags” listed on the bottom for the law
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`firm which specializes in bankruptcy - #FreeFromDebt #BankruptcyLaw. First, the ad is clear that
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`the law firm intends to represent the individuals in a private arbitration action for those individuals
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`who wish to be excluded from the settlement. Second, the ad makes no guarantees of a recovery,
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`and merely states that the firm will “assist” individuals in an arbitration. Third, as discussed above,
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`counsel simply cannot provide every possible disclosure within every online posting. As a practical
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`matter, this is done through attorney-client privileged communications. Although the counsel
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`cannot reveal its communications with the movants, counsel can attest that they complied with
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`their ethical requirements. In fact, the claimants have confirmed their understanding that they are
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`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 13 of 21 PageID #:11899
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`giving up their rights to receive compensation under the settlement by signing the exclusion firms,
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`and that they are doing so out of their own free will. See Exhs. B-G; see also Hallie, 2015 U.S.
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`Dist. LEXIS 54481, at *10-11 (N.D. Ind. Apr. 27, 2015) (holding that individually signed opt outs
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`requirement “heightens the likelihood that each class plaintiff will make an informed,
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`individualized decision whether to opt out.”).
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`TikTok’s continues its unprofessional attacks and speculations regarding attorneys’
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`communications with their clients by falsely stating that they are “unethical because the law firms
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`seeking to opt-out masses of class members have little to lose and everything to gain[.]” Yet, the
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`opposite is true. Each of the law firms representing the movants takes the risk of litigating the
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`actions with the Movants. Traditionally, consumers with contracts containing arbitration
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`provisions had little to no options to pursue their individual claims.12 Now some law firms are
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`willing to step in and assist the consumers with their claims. Yet instead of showing respect for
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`their hard work, invested resources, and willingness to represent the individuals, TikTok unfairly
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`foists upon well-reputed counsel speculative and unprofessional attacks.
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`Counsel for Movants are not seeking to pursue these cases for an improper purpose. They
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`are consumer advocates who seek to preserve their clients’ rights to proceed with their claims in a
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`contractually binding arbitration.
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`12 Only a few years ago, virtually every company compelled arbitration of every class action to
`avoid liability, knowing that attorneys could not pursue a large number of cases through
`arbitration. Now, when some law firms stepped in to fight this injustice and found a way to do so,
`willing to help consumers vindicate their rights in pursuit of a larger recovery than can be achieved
`through a class action, TikTok, suddenly realized that it would be less expensive for it to obtain a
`release from nearly 100 million individuals through a class settlement. Although TikTok is about
`to obtain a class-wide release for nearly 100 million of class members, it continues to vigorously
`fight against exclusion of less than 0.00002% of class members and deprive these individuals of
`their due process rights. TikTok’s conduct, as well as its offensive and unprofessional remarks, is
`shameful.
`
`
`
`8
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`

`

`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 14 of 21 PageID #:11900
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`In support of its offensive arguments, TikTok references the Facebook Settlement without
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`fully explaining what transpired in that action.13 In the Facebook Settlement, after reaching
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`settlement, another law firm, seeking to represent excluded individuals, began to run another
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`advertisement, on Facebook (where the Notice was scheduled to be distributed), which mimicked
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`the language of the notice, inviting individuals to “fill out a claim.” In re Facebook Biometric Info.
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`Privacy Litig., 522 F. Supp. 3d 617, 623 (N.D. Cal. 2021), aff’d, No. 15-03747, 2022 WL 822923
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`(9th Cir. 2022); Transcript of Proceedings pp, 3-4 [ECF No. 487] (Exh. I). The class members
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`were confused and thought they were opting in and making a claim to participate in the settlement,
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`when in reality they were solicited to opt out. Id. Class counsel requested the Court to intervene
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`because the advertisement caused immediate confusion to class members and not because it was a
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`“mass solicitation.” Id. A number of people even left comments on the Facebook page stating “I’m
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`very confused . . . “I’m somehow excluded from the class action.”) The court in Facebook was
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`concerned with the use of the word “claim” because it was a “baited [] hook,” especially since the
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`class members clearly interpreted it to be an invitation to opt into a class settlement. Id. p. 13. In
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`fact, the court in Facebook reiterated that “if you want to do something about opt-outs, you can
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`do that, but it has to be forthright, candid, and honest, and it cannot be disruptive.” Id. The
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`decision in Facebook supports Movants’ Motion.
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`13 TikTok also references an entirely inapplicable case, Mullen v. GLV, Inc., 334 F.R.D. 656 (N.D.
`Ill. 2020). In Mullen, after plaintiff successfully certified a class action, defendants sent mass
`emails and other communications to the represented class members – despite being unauthorized
`to do so, encouraging the class members to opt out, to sabotage plaintiff’s certified class action
`against them. Id. at 660. This is not the case here, where counsel is being retained by the individuals
`who wish to opt out and proceed in private arbitration. The collected cases cited in Mullen similarly
`address other improper or abusive communications between defendants and class members. See
`also Kleiner v. First Nat’l Bank, 751 F.2d 1193, 1203 (11th Cir. 1985) (prohibiting defendant from
`communicating with the class).
`
`
`
`9
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`

`

`Case: 1:20-cv-04699 Document #: 226 Filed: 05/04/22 Page 15 of 21 PageID #:11901
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`TikTok’s other cases are similarly inapplicable here because neither law firm engaged in
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`misleading communications. See e.g. In re McKesson HBOC, Inc. Sec. Litig., 126 F.Supp. 3d 1239,
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`1244 (N.D. Cal. 2000) (where the advertisement was deceptively listed as a “Notice” which
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`implied that it was a notice of settlement); Georgine v. Amchem Prods., 160 F.R.D. 478, 492 (E.D.
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`Pa. 1995) (communications were blatantly false and coercive – claiming that class members
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`participating in class settlement would obtain “nothing,” or “no money,” and making similar false
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`statements through an extensive campaign, resulting in over 230,000 exclusion requests); Chalian
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`v. CVS Pharmacy, Inc., No. 16-8979, 2020 WL 7347866, at *4 (C.D. Cal. Oct. 30, 2020) (class
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`members received a text message about the “danger” of the settlement with a link to a website with
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`numerous misleading statements); In re Payment Card Interchange Fee & Merch. Disc. Antitrust
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`Litig., No. 05-MD-1720 (JG), 2014 U.S. Dist. LEXIS 142213, at *29 (E.D.N.Y. Oct. 3, 2014) (a
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`third party settlement group called class members stating that “they would not receive their share
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`of settlement” unless they sign up with them). Furthermore, it is