Case: 1:20-cv-04699 Document #: 261 Filed: 07/28/22 Page 1 of 79 PageID #:13067
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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 Relates to
`All Cases
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`MDL No. 2948
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`Master Docket No. 20 C 4699
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`Judge John Z. Lee
`Magistrate Judge Sunil R. Harjani
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`MEMORANDUM OPINION AND ORDER
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`Tens of millions of Americans use the social media and entertainment
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`application now known as TikTok (“TikTok” or “the App,” formerly known as
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`“Musical.ly”) to view, create, and share short videos. That is all well and good, but
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`according to the lead plaintiffs (“Plaintiffs”) in this multidistrict litigation (“MDL”),
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`the App’s widespread popularity comes at the expense of its users’ privacy rights. On
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`behalf of a putative class comprising all TikTok users in the United States (an
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`estimated 89 million people) and a subclass of Illinois users, Plaintiffs allege that
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`ByteDance, Inc. (the China-based company that created TikTok) and
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`its
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`subsidiaries—TikTok, Inc., TikTok, Ltd., ByteDance Inc., and Beijing ByteDance
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`Technology Co., Ltd.
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`(collectively, “Defendants”)—have used the App to
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`surreptitiously harvest and profit from collecting the private information of users in
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`violation of numerous federal and state consumer privacy laws.
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`Last year, the Court granted Plaintiffs’ motion for preliminary approval of a
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`class action settlement that would provide monetary relief to class members in the
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`form of a $92 million settlement fund, as well as broad injunctive relief prohibiting
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`Defendants from engaging in the alleged privacy violations going forward. See In re
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`TikTok, Inc. Consumer Priv. Litig., 565 F. Supp. 3d 1076 (N.D. Ill. 2021), ECF No.
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`161.
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`Now, after disseminating notice to the class and receiving approximately 1.4
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`million claims, Plaintiffs have filed a motion for final approval of the settlement, as
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`well as a motion for attorneys’ fees, expenses, and service awards. Various objectors
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`have filed objections to both motions, as well as their own fee and service award
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`petitions. For the following reasons, the Court certifies the Nationwide Class and
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`Illinois Subclass for purposes of the settlement, grants Plaintiffs’ motion for approval
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`of the settlement, approves the fee and service award petitions to the extent stated
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`below, and makes other rulings as applicable.
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`TABLE OF CONTENTS
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`I. Background .......................................................................................................... 4
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`A.
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`B.
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`Factual and Early Procedural History ............................................................ 4
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`Plaintiffs’ Claims .............................................................................................. 9
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`1. Nationwide Class Claims ........................................................................ 9
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`2.
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`Illinois Subclass Claims ........................................................................ 11
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`C.
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`Proposed Settlement Agreement ................................................................... 12
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`1. Monetary Relief ..................................................................................... 13
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`2.
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`Injunctive Relief .................................................................................... 14
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`D. Order Granting Preliminary Approval .......................................................... 15
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`E.
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`The Notice and Claims Submission Period ................................................... 17
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`1. Notice ..................................................................................................... 17
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`2.
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`Claims and Opt-Outs ............................................................................ 20
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`II. Analysis ............................................................................................................... 21
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`A.
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`Class Certification .......................................................................................... 21
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`2
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`1.
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`2.
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`Legal Standard ...................................................................................... 21
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`Rule 23(a) Factors ................................................................................. 22
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`i.
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`ii.
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`Numerosity, Commonality, and Typicality ............................... 22
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`Adequacy of Representation ...................................................... 23
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`3.
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`Rule 23(b)(3) Factors ............................................................................. 31
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`i.
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`ii.
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`Predominance ............................................................................. 31
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`Superiority .................................................................................. 32
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`B. Rule 23’s Notice Requirement ........................................................................ 33
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`1.
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`Adequacy of Notice ................................................................................ 33
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`2. Objections to Notice Plan ...................................................................... 36
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`3. Motion To Accept Opt-Outs .................................................................. 41
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`C. Rule 23(e)’s Fairness Inquiry ......................................................................... 44
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`1.
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`2.
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`Legal Standard ...................................................................................... 44
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`Strength of Plaintiffs’ Case And Value of the Settlement ................... 45
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`3. Other Settlement Factors ..................................................................... 53
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`D. Attorneys’ Fees and Service Awards.............................................................. 56
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`1.
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`2.
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`Legal Standard ...................................................................................... 56
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`Class Counsel’s Motion for Attorneys’ Fees ......................................... 57
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`i.
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`ii.
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`iii.
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`iv.
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`Percentage Method ..................................................................... 58
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`Lodestar Cross-Check ................................................................ 65
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`Allocation of Fees Among Plaintiffs’ Firms ............................... 66
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`Expenses ..................................................................................... 72
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`3. Objector Mark S.’s Petition for Attorneys’ Fees ................................... 74
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`4.
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`Incentive and Service Awards .............................................................. 77
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`III. Conclusion .......................................................................................................... 79
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`A.
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`Factual and Early Procedural History
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`I.
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`Background1
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`The App is a social media and entertainment platform that allows users to
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`view, create, and share short videos. Using the App, individuals can record videos
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`and overlay them with visual effects, background music, and other enhancements.
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`See Consol. Am. Class Action Compl. ¶¶ 127–28 (“Compl.”), ECF No. 114. After
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`recording a video, a user can either save the video to their device or “post” the video
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`to their TikTok account. See id. ¶¶ 146–47.
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`When a user posts a video to their account, the video is shared with the user’s
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`“followers” (that is, other users who subscribe to see the user’s content) and also is
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`posted publicly and displayed to users across the world using the App’s proprietary
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`content-delivery algorithm. Id. ¶¶ 2, 7–9, 128. The algorithm uses artificial
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`intelligence technologies and machine learning to gather information about a user
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`and to predict what types of videos the user would want to see. Id. ¶¶ 8–9. The App
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`then shows the user a curated feed of content (and advertisements) based on those
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`predictions.2 Id. ¶ 141.
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` 1
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`The Court assumes familiarity with the facts of this case as stated in the Preliminary
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`Approval Order. See In re TikTok, 565 F. Supp. 3d at 1079–83.
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`For example, if a user “likes” or comments on a video of a dog dancing to a popular
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`song, the App’s algorithm will “learn” about the user’s preference for such videos and will
`adjust to show the user more videos involving dogs or other animals dancing to music on the
`user’s video feed. See Compl. ¶ 268.
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`4
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`The simultaneous success and secrecy of TikTok’s proprietary AI technology
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`has prompted considerable backlash from privacy advocates, politicians, and the
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`United States government. In February 2019, the Federal Trade Commission
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`entered into a consent decree with several Defendants over the App’s purported
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`violations of the Children’s Online Privacy Protection Act (“COPPA”), 15 U.S.C.
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`§ 6501 et seq.3 The Department of Defense expressed concerns that its employees’
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`use of the App raised security issues because of the App’s “ability to convey location,
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`image and biometric data to its Chinese parent company.” Compl. ¶ 6. And several
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`United States Senators called on the intelligence community to investigate TikTok’s
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`alleged ties to the Chinese government and its potential as a “target of foreign
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`influence campaigns like those carried out during the 2016 election on United States-
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`based social media platforms.” Letter from Senator Charles E. Schumer and Senator
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`Tom Cotton to Joseph Maguire, Acting Director of National Intelligence (Nov. 27,
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`2019) (on file with the United States Senate), https://www.democrats.senate.gov/
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`imo/media/doc/10232019%20TikTok%20Letter%20-%20FINAL%20PDF.pdf.
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`These privacy concerns also prompted a wave of putative class action lawsuits
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`against TikTok in federal courts across the country. Beginning in 2018, several
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`plaintiffs’ law firms began to investigate whether Defendants’ AI and machine
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` 3
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`Press Release, Video Social Networking App Musical.ly Agrees to Settle FTC
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`Allegations That
`It Violated Children’s Privacy Law, FTC
`(Feb. 27, 2019),
`https://www.ftc.gov/news-events/news/press-releases/2019/02/video-social-networking-app-
`musically-agrees-settle-ftc-allegations-it-violated-childrens-privacy (last accessed May 20,
`2022).
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`learning technologies violated United States privacy laws. The investigations focused
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`in particular on whether the App’s video camera collected, retained, and distributed
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`App users’ facial recognition information or other biometric information without the
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`users’ authorization. See Pls.’ Mot. Prelim. Approval Class Action Settlement (“Mot.
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`Prelim. Approval”), Rhow Decl. ¶¶ 8–10, ECF No. 122-8. The investigations also
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`explored whether the App harvested other types of private information, such as
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`geolocation data, video viewing histories, unpublished TikTok videos (i.e., those not
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`“saved” or “posted”), and personal identifying information such as email addresses,
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`social media account information, or cell phone data, and whether Defendants
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`transferred that data to third parties. Id.; see, e.g., Compl. ¶¶ 155–57.
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`The first case against TikTok based on these allegations was filed in the
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`Northern District of California in November 2019. See Hong v. ByteDance, Inc., No.
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`19 C 7792 (N.D. Cal.). Other lawsuits followed in the Northern District of California,
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`the Central District of California, the Southern District of Illinois, and the Northern
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`District of Illinois, including one in this Court. See E.R. v. TikTok, Inc., No 20 C 2810
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`(N.D. Ill.). Eventually, the burgeoning of litigation led the Judicial Panel on
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`Multidistrict Litigation (“JPML”) to consolidate the then-nineteen related actions and
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`to transfer them to this Court for pretrial proceedings on August 4, 2020. See In re
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`TikTok, Inc., Consumer Priv. Litig., 481 F. Supp. 3d 1331, 1332 (J.P.M.L. 2020);
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`JPML Transfer Order, In re TikTok (N.D. Ill. Aug. 12, 2020), ECF No. 2.
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`By that point, the political tensions surrounding TikTok had reached their
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`zenith. Just two days after the JPML’s transfer order, President Donald Trump
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`issued an executive order declaring that TikTok’s continued operation in the United
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`States presented “a national emergency” that “threaten[ed] the national security,
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`foreign policy, and economy of the United States.” Exec. Order No. 13,942, 85 FED.
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`REG. 48,637 (Aug. 6, 2020). According to the executive order, immediate action was
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`necessary because TikTok’s “data collection threaten[ed] to allow the Chinese
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`Communist Party access to Americans’ personal and proprietary information.” Id.
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`The order gave ByteDance an ultimatum: sell TikTok’s United States operations to
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`an American company within forty-five days or face a ban of the App in this country.
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`See id.4
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`After the Trump Administration’s order, Defendants’ motivation to settle the
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`newly-consolidated cases was at an all-time high given its need to shed TikTok’s
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`liabilities in preparation for its anticipated sale. See Pls.’ Mot. Final Approval Class
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`Action Settlement at 9–10 (“Mot. Final Approval”), ECF No. 195. The attorneys in
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`Hong had already engaged in months of comprehensive settlement discussions with
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`Defendants, including a round of mediation in April 2020 led by Layn Phillips, a
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`prominent retired federal judge. Id. at 8. To that point, however, the parties had not
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`been successful. Id.; see generally Mot. Prelim. Approval, Carroll Decl., ECF No. 122-
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`6 (discussing pre-MDL settlement negotiations); Rhow Decl. (same).
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` 4
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`ByteDance initially agreed to sell its United States operations of TikTok to Oracle and
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`Walmart later in September 2020, but a final agreement never materialized, and the Biden
`Administration ultimately abandoned the Trump Administration’s threat to ban the App.
`See, e.g., Bobby Allyn, Biden Administration Pauses Trump’s TikTok Ban, Backs Off Pressure
`to Sell App, NAT’L PUB. RADIO (Feb. 10, 2021), https://www.npr.org/2021/02/10/966584204/
`(last accessed May 20, 2022).
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`On August 13, 2020, Plaintiffs’ counsel in E.R., a case originally filed in this
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`Court, was able to assemble a coalition of attorney representatives from the various
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`consolidated cases to attend a second round of mediation before Judge Phillips in
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`hopes of achieving a global settlement. Mot. Final Approval at 8–9; Carroll Decl.
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`¶¶ 16–19. That thirteen-hour session proved fruitful and concluded with a
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`settlement agreement in principle and a signed term sheet. Mot. Final Approval at
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`10. The parties memorialized the settlement in a signed agreement on September 4,
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`2020. Id.
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`Meanwhile, as part of its management of the MDL, the Court solicited
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`applications from the attorneys who represented the various plaintiff classes in the
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`MDL to serve as Lead Counsel and in other leadership roles. In September 2020, the
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`Court selected three attorneys—Katrina Carroll, Ekwan Rhow, and Elizabeth
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`Fegan—to serve as Co-Lead Counsel; attorney Shannon Marie McNulty to serve as
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`Liaison Counsel; and five attorneys—Jonathan Jagher, Megan E. Jones, Michael
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`Gervais, Amanda K. Klevorn, and Albert Y. Chang—to serve on the Plaintiffs’
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`Executive Committee. See Case Management Order No. 3, ECF No. 94 (appointing
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`counsel to these roles).
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`These attorneys worked with Defendants over the fall and winter of 2020 to
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`assess the initial terms of settlement and negotiate revised terms to address the
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`various concerns raised by different plaintiff groups. As part of this process,
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`Plaintiffs’ counsel also conducted a substantial amount of confirmatory discovery,
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`which included interrogatories, document requests, and written depositions, and
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`arranged for a computer programming expert to inspect the App’s source code onsite.
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`See In re TikTok, 565 F. Supp. 3d at 1080–81.
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`B.
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`Plaintiffs’ Claims
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`One product of these efforts was a consolidated amended class action complaint
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`filed towards the end of 2020. The complaint proposes two classes. First, the
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`complaint defines a Nationwide Class comprised of all United States residents who
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`had used the App prior to preliminary approval of the settlement. Compl. ¶ 322.
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`Second, the complaint seeks certification of an Illinois Subclass comprised of all
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`Illinois residents who had used the App to create one or more videos prior to the
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`preliminary approval of the settlement. Id. A brief summary of the classes’ claims
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`follows.
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`1. Nationwide Class Claims
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`On behalf of the Nationwide Subclass, the complaint asserts claims under
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`federal statutes, as well as claims under California statutes and common law.
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`First, the complaint asserts for the Nationwide Class that Defendants have
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`violated the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and
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`its California analogue, the Comprehensive Computer Data Access and Fraud Act
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`(“CCDAFA”), CAL. PENAL CODE § 502, by collecting personal information and data,
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`including user or device identifiers, biometric information, and unpublished TikTok
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`videos, from App users’ cell phones without authorization. Compl. ¶¶ 339–41, 345–
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`46.
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`Next, Plaintiffs bring a claim under the Video Privacy Protection Act (“VPPA”),
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`18 U.S.C. § 2710, which creates a private cause of action against a “video tape service
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`provider who knowingly discloses, to any person” the “personally identifiable
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`information” of its consumers. Id. § 2710(b). According to Plaintiffs, Defendants have
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`violated VPPA by knowingly disclosing App users’ personally
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`identifiable
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`information, including a record of the videos the user has watched, a record of the
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`videos the user has “liked” or commented on, and the identities of the user’s followers,
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`to Facebook and Google. See Compl. ¶ 397.
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`Additionally, Plaintiffs assert that, in failing to disclose that they collect and
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`disseminate App users’ personal information, Defendants have violated two
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`California consumer protection statutes5: the California Unfair Competition Law
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`(“UCL”), CAL. BUS. & PROF. CODE § 17200 et seq., which bans “unlawful, unfair, or
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`fraudulent business act[s] or practice[s],” id., and the California False Advertising
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`Law (“FAL”), id. § 17500 et seq., which prohibits any “unfair, deceptive, untrue, or
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`misleading advertising.” Id.; see Compl. ¶¶ 372–78, 381–85.
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`Plaintiffs also assert three claims under California constitutional and common
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`law. First, they argue that Defendants’ collection and dissemination of their private
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`information violates the right to privacy enshrined in article I of the California
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`Constitution. See CAL. CONST. art. I § 1; Compl. ¶¶ 351–53. Second, Plaintiffs raise
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` 5
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`Plaintiffs also assert claims pursuant to several other state consumer protection
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`statutes on behalf of a “Multi-State Consumer Protection Class,” “in the alternative” to a
`Nationwide Class. Id. ¶ 419; see id. ¶ 322 n.167 (listing states with consumer fraud laws that
`may apply to Defendants’ conduct).
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`a claim based on the common law tort of intrusion upon seclusion, arguing that the
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`collection of App users’ personal information constitutes an “intentional interference
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`with [their] interest in solitude or seclusion . . . of a kind that would be highly
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`offensive to a reasonable man.” RESTATEMENT (SECOND) OF TORTS § 652B cmt. a (AM.
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`LAW INST. 1977) (updated Oct. 2021); see Compl. ¶ 363.
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`Lastly, Plaintiffs seek recovery under a theory of unjust enrichment,
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`contending that Defendants derived revenues and profits from the dissemination and
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`transfer of App users’ private and personal information. Compl. ¶ 387; see
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`RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 1 cmt. a (AM. LAW
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`INST. 2011) (recovery under the doctrine of unjust enrichment is appropriate when
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`the defendant “recei[ves] a benefit whose retention without payment would result in
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`the unjust enrichment of the defendant at the expense of the claimant”).
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`2.
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`Illinois Subclass Claims
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`The Illinois Subclass asserts claims under the Illinois Biometric Information
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`Privacy Act (“BIPA”), 740 Ill. Comp. Stat. 14/1 et seq., which “embodies a fundamental
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`policy of the state of Illinois. . . . of protecting its citizens’ right to privacy in their
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`personal biometric data,” and in particular, its “concerns about the use of new
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`technology by ‘[m]ajor national corporations’ to collect personal biometric data.” In
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`re Facebook Biometric Info. Priv. Litig., 185 F. Supp. 3d 1155, 1169 (N.D. Cal. 2016)
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`(“In re Facebook”) (quoting 740 Ill. Comp. Stat. 14/5(b)). In short, BIPA requires a
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`private entity that collects biometric information (defined as “any information . . .
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`based on an individual’s . . . retina or iris scan, fingerprint, voiceprint, or scan of hand
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`or face geometry,” 740 Ill. Comp. Stat. 14/10) to “inform the subject or ‘the subject’s
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`legally authorized representative’ in writing about several things, such as the
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`purpose of collecting the data and how long they will be kept, and obtain the consent
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`of the subject or authorized representative.” Miller v. Sw. Airlines Co., 926 F.3d 898,
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`900 (7th Cir. 2019) (quoting § 14/15(b)).
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`BIPA also prohibits sales and limits transfers of biometric information and
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`requires custodians to establish protocols for retaining the information and protecting
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`it from disclosure. See id. at 901 (citing § 14/15(a)–(e)). Successful BIPA plaintiffs
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`may recover either actual damages or liquidated damages—$1,000 for negligent
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`violations and $5,000 for intentional or reckless violations—plus attorneys’ fees,
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`costs, and injunctive relief. See § 14/20.
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`Here, Plaintiffs claim that Defendants have violated BIPA by harvesting App
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`users’ facial scans without obtaining their consent, and by transferring and selling
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`users’ biometric information to third parties. Compl. ¶¶ 408–10. Plaintiffs also allege
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`that Defendants routinely violate BIPA’s disclosure and retention requirements. Id.
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`¶¶ 411–15.
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`C.
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`Proposed Settlement Agreement
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`In exchange for a release of all of these claims, and any potential claims based
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`on Defendants’ collection or handling of App users’ data,6 the Settlement Agreement
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` 6
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`More specifically, the release covers “any and all claims, complaints, actions,
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`proceedings, or remedies of any kind . . . arising from or related to the Civil Actions or the
`collection and use of any user data, including biometric data . . . arising from the beginning
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`provides for monetary relief in the form of a $92 million settlement fund and a range
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`of injunctive remedies to prevent Defendants from engaging in the alleged privacy
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`violations in the future.
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`1. Monetary Relief
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`Pursuant to the Settlement Agreement, Defendants have agreed to pay $92
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`million into an escrow account, to be distributed among class members according to
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`a Court-approved plan of allocation. See Mot. Prelim. Approval Ex. C, Proposed Plan
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`of Allocation, ECF No. 122-3. The plan provides that the settlement funds are to be
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`paid out in the following descending order: (1) payment of expenses incurred in
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`connection with administering the settlement; (2) taxes associated with the
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`settlement; (3) attorneys’ fees, service fees, and other fee awards; and (4) payment to
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`class members who submitted valid claims. Settlement Agreement § 5.2.
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`Once administration costs, taxes, and fees are distributed, the remainder of
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`the settlement fund will be divided into prorated shares “that are equal to the sum of
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`(1) the total number of valid claims submitted by Nationwide Class members and
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`(2) the total number of valid claims submitted by Illinois Subclass members
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`multiplied by five.” Mot. Final Approval at 14. Each Nationwide Class member who
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`submitted a valid claim will receive one prorated share, and each Illinois Subclass
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`member who submitted a valid claim will receive six prorated shares—one as a
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`of time” to the date that the final approval of the settlement is either affirmed on appeal or
`the date that the time to appeal the final approval order has expired. See Mot. Prelim.
`Approval Ex. A, Proposed Settlement Agreement and Release § 2.30 (“Settlement
`Agreement”), ECF No. 122-1.; id. § 2.12.
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`member of the Nationwide Class, and five as a member of the Illinois Subclass. See
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`id. Based on Plaintiffs’ estimates, each Nationwide Class claimant will receive $27.19
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`and each Illinois Subclass claimant will receive $163.13 in monetary relief from the
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`settlement. See id.; Platt Decl. ¶ 43, ECF No. 196.
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`2.
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`Injunctive Relief
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`The Settlement Agreement also contains expansive injunctive remedies. As
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`part of the settlement, Defendants have agreed to refrain, and upon approval of the
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`settlement will be enjoined, from engaging the following conduct, unless disclosed
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`expressly in TikTok’s Privacy Policy: (1) using the App to collect or store a user’s7
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`biometric information; (2) using the App to collect geolocation or GPS data; (3) using
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`the App to collect information in users’ clipboards;8 (4) using the App to transmit user
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`data outside of the United States; (5) storing user data in databases outside of the
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`United States; and (6) uploading content generated by users to the App’s servers
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`before the user saves or publishes it. Settlement Agreement §§ 6.1–6.2; see generally
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`id. at Addendum § 4.
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`Defendants also pledge to create, at their own expense, a comprehensive data
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`privacy training and compliance program for all newly hired employees and
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`contractors and to institute annual privacy training for all employees. Id. § 6.3. And
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` 7
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`All references to “a user” or “users” in the Settlement Agreement refer to a United
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`States user or users.
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` 8
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`A phone’s “clipboard” is the function that allows the user to store text, images, and
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`videos for the purpose of copying and pasting them within an app or between apps. See
`Compl. ¶¶ 181–85.
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`Defendants have agreed to pay for a third party to monitor this training for three
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`years and to provide written verification of the review. Id. at Addendum § 4.3.
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`D. Order Granting Preliminary Approval
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`On February 25, 2021, Plaintiffs presented the Settlement Agreement, the
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`plan of allocation, and a proposed notice plan to this Court for preliminary approval.
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`See Mot. Prelim. Approval. Three objections to the preliminary approval motion were
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`filed: one by Mark S., ECF No. 126; one by Dennis Litteken, ECF No. 132; and one by
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`Brian Behnken and Joshua Dugas, ECF No. 142.
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`After the parties submitted supplemental briefs regarding the adequacy of
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`representation of minor class members, the possibility of in-App notice, and the
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`process by which Plaintiffs valued the claims, the Court granted Plaintiffs’ motion for
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`preliminary approval on September 30, 2021. See generally In re TikTok, 565 F.
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`Supp. 3d 1076; Order Granting Prelim. Approval Class Action Settlement, In re
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`TikTok (N.D. Ill. Oct. 1, 2021) (setting forth procedures for notice, filing claims and
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`objections, and the final approval process) (“10/1/21 Order”), ECF No. 162.
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`The Court made three principal findings at the preliminary approval stage.
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`First, it found that it “[would] likely be able to certify” the proposed classes for
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`purposes of approving the settlement. In re TikTok, 565 F. Supp. 3d at 1087; see FED.
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`R. CIV. P. 23(e)(1)(B)(ii). Second, the Court found that the proposed settlement was
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`“within the range of fairness, reasonableness, and adequacy” in light of numerous
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`factors, including the strength of Plaintiffs’ case, the complexity of potential ongoing
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`litigation, the amount of opposition to the settlement, and the reaction from class
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`members. In re TikTok, 565 F. Supp. 3d at 1087 (citing Wong v. Accretive Health,
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`Inc., 773 F.3d 859, 863 (7th Cir. 2014) (listing certain factors to be considered)).
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`Finally, the Court approved the proposed notice plan because it provided the best
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`notice practicable to all class members, with the caveat that Defendants were
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`required to provide in-App notice of the settlement to American users. Id. at 1091–
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`92; see id. at 1094.
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`In making these findings, the Court overruled three objections to preliminary
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`approval. The Court first overruled Litteken’s objections that the Settlement
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`Agreement undervalued Plaintiffs’ claims. In doing so, the Court noted that In re
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`Facebook, the case Litteken cited to support his contention that the settlement
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`undervalued the BIPA claims, was “a poor comparator” because Defendants, unlike
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`Facebook, do not concede that they use facial recognition technology to harvest App
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`users’ biometric information. See id. at 1090 (citing In re Facebook, No. 15-cv-3747–
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`JD, 2018 WL 2197546, at *2 (N.D. Cal. May 14, 2018)).
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`The Court also rejected Mark S.’s argument that the settlement did not account
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`for conflicts between minor and non-minor class members. It found Mark S.’s
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`contention that minor class members should receive more compensation because they
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`could potentially disaffirm the arbitration agreements in the App’s terms of service
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`unpersuasive, because disaffirmance would likely “require individual minor class
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`members, at the very least, to stop using the App,” which seems improbable. Id. at
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`1085–86.
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`Additionally, the Court rejected Mark S.’s argument that the Court should
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`have denied preliminary approval because Plaintiffs had not undertaken a detailed
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`quantitative analysis of the net expected value of continued litigation to the class.
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`Instead, the Court found that there were “other reliable indicators”—including the
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`hard-fought negotiation process, two rounds of arbitration supervised by a former
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`federal judge, and substantial confirmatory discovery—that supported a finding of
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`reasonableness. Id. at 1087 (quoting Kaufman v. Am. Exp. Travel Related Servs. Co.,
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`877 F.3d 276, 285 (7th Cir. 2017)); see id. at 1088–89.
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`Finally, the Court overruled Behnken and Dugas’s objection to the opt-out
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`procedure. Behnken and Dugas argued that the notice plan’s requirement that class
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`members who desire to opt-out of the settlement complete, sign, and mail individual
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`opt-out request forms to Plaintiffs’ counsel violated their due process rights. Id. at
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`1092. But as the Court noted, the requirement that class members individually fill
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`out and mail an opt-out request form is “a common and practical requirement” that
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`is “consistently enforced” in MDL settlements. Id. at 1093 (quoting In re Deepwater
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`Horizon, 819 F.3d 190, 197 (5th Cir. 2016)); see id. (collecting cases). Accordingly, the
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`Court concluded that the opt-out procedure did not violate due process.
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`E.
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`The Notice Program and Claims Submission Period
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`1. Notice Program
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`After the Court granted preliminary approval, Plaintiffs disseminated notice
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`to the class through a notice program developed by the settlement administrator,
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`Angeion Group (“Angeion”). Mot. Final Approval at 18; see generally Platt Decl. Per
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`Case: 1:20-cv-04699 Document #: 261 Filed: 07/28/22 Page 18 of 79 PageID #:13084
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`the Court’s scheduling order, the notice period began on N