UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

IN RE: TIKTOK, INC., ) 

CONSUMER PRIVACY ) MDL No. 2948 

LITIGATION ) 

 ) Master Docket No. 20 C 4699 

 ) 

 ) Judge John Z. Lee 

 ) 

 ) Magistrate Judge Sunil R. Harjani 

This Document Relates to All Cases ) 

EKWAN E. RHOW’S APPLICATION FOR CO-LEAD COUNSEL AND NOMINATION 

OF MEGAN JONES AS CO-LEAD COUNSEL, KARA WOLKE, DAVID GIVEN, AND 

AMANDA KLEVORN AS MEMBERS OF THE PLAINTIFFS’ STEERING 

COMMITTEE, AND SHANNON MCNULTY AS LIAISON COUNSEL 

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I. INTRODUCTION 

Our Proposal: While committed to working cooperatively with any plaintiffs’ counsel, Bird 

Marella, Glancy Prongay, Phillips Erlewine, Hausfeld, and Burns Charest (collectively, the 

“Litigating Firms”) propose the following leadership structure: Ekwan Rhow (Bird Marella) and 

Megan Jones (Hausfeld) as Co-Lead Counsel; a PSC of Kara Wolke (Glancy Prongay), David Given 

(Phillips Erlewine), Amanda Klevorn (Burns Charest), and two slots filled by the Court from the 

remaining applicants; and Shannon McNulty of Clifford Law Offices as Liaison Counsel.1 As 

explained below, these attorneys best satisfy the Court’s criteria of “(a) counsel’s willingness and 

availability to commit to a time-consuming project; (b) counsel’s ability to work cooperatively 

with others; and (c) counsel’s professional experience in this type of litigation, including any prior 

appointments as lead counsel or liaison counsel in multi-party litigation.” Doc. No. 4. At the Court’s 

direction, this brief also addresses “other relevant matters” supporting Our Proposal. Id.

Responsibilities and Efficiencies Under Our Proposal: Co-Leads Mr. Rhow and Ms. 

Jones possess extensive plaintiff and defense-side class action litigation experience and blend 

complex trial experience and settlement knowledge that has been evaluated by courts, juries, and 

counsel. Co-Leads propose that Ms. Wolke would oversee offensive discovery (including e-discovery 

and China-related discovery); Mr. Given would oversee expert work and analysis; and Ms. Klevorn 

would oversee research, pleadings, and motions. The two open PSC slots would oversee: (i) 

settlement, mediation, and government issues; and (ii) plaintiff management and defensive discovery. 

Based in Chicago, Ms. McNulty would satisfy the obligations of Liaison Counsel. 

1

 During the Court-ordered meet and confer among plaintiffs’ counsel, the Litigating Firms 

proposed a compromise leadership structure that equitably blended different groups: Mr. Rhow and 

an attorney from the Settling Firms as Co-Lead Counsel; and a PSC of two attorneys from the 

Litigating Firms, two attorneys from the Settling Firms, and one attorney from other plaintiffs’ 

counsel. The Settling Firms declined and sought both Co-Lead positions and three PSC slots. 

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Flaws In The Settling Plaintiffs’ Proposal: The problems in the Settling Firms’ proposal 

include: (1) their two Co-Leads each filed complaints limited to Illinois plaintiffs with only Illinois BIPA 

claims; (2) they prematurely scheduled an August 13 mediation shortly after filing their complaints 

and then participated in it despite defendants excluding the only Court-appointed lead counsel 

authorized to represent the class at the time, thus empowering defendants to select who they 

negotiated against (Doc. Nos. 5, 11, 11-1, 12, 17); (3) they are focused only on court-approval of 

their purported settlement without having shared it with the Litigating Firms or even all of the 

Settling Firms or others who support it without knowing its terms; (4) they purport to have settled 

claims brought only by the Litigating Firms; and (5) they claim the litigation issues in Case 

Management Order No. 1 (“CMO 1”) are “not relevant” (Doc. No. 6). Given real-time global 

events altering the landscape, and the possibility the parties may not execute or the Court may not 

approve the “settlement in principle,” a broader view of this lawsuit is in the class’s best interest. 

Our Proposal Cures These Flaws: Our Proposal ensures the two Co-Leads represent all 

putative classes and claims because Mr. Rhow brought California and Federal claims on behalf of 

California plaintiffs, a putative nationwide class, and a putative California subclass, and Ms. Jones 

brought BIPA claims on behalf of Illinois plaintiffs and a putative Illinois subclass. Also, Our 

Proposal includes two Co-Leads and three PSC members with the first-filed TikTok complaint, the 

first-filed BIPA claim, and years of technical, factual, and legal investigation in the U.S. and China. 

Not only would the leadership of the Litigating Firms offer the best chance to cure the structural 

problems underlying the August 13 mediation, but for the reasons below, the Litigating Firms also 

best satisfy the Court’s three-factor leadership test while still leaving room for counsel who already 

have voiced support for the purported settlement to have a significant role. 

II. The Litigating Firms Have Demonstrated Their Willingness And Availability. 

The Litigating Firms have done the most work identifying, investigating, and litigating the 

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claims since early 2019, and constitute the only applicants who: (1) initiated the first-filed TikTok 

complaint on November 27, 2019; (2) served the China-based defendants driving the misconduct 

and possessing the financial means to make the class whole; (3) publicly announced in an April 15, 

2020 filing, before the filing of any of the other TikTok actions, their intention to include Illinois 

plaintiffs and a BIPA claim; (4) filed the first BIPA claim on April 30, 2020; (5) filed the first BIPA 

claim against the China-based defendants, including the most detailed and unique technical 

allegations, in an 89-page amended complaint on May 11, 2020; and (6) filed a VPPA claim 

potentially worth billions of dollars in a 112-page consolidated complaint on August 14, 2020, which 

focuses on the transfer of users’ video viewing histories to Facebook and Google. Virtually all the 

Settling Firms brought copycat, BIPA-only claims with minimal or no new facts and did so after the 

Litigating Firms led the investigation and drafted/filed the first complaints. 

Bird Marella and Glancy Prongay initiated their investigation in early 2019, and teamed up 

with Phillips Erlewine in early 2020, to build a comprehensive case by: 

 working closely with highly trained source code experts in analyzing multiple versions of the 

Musical.ly and TikTok apps to uncover (1) the various types of private and personallyidentifiable data stolen by defendants and third-party entities whose software development 

kits and analytic libraries are secretly embedded within the apps, and (2) the domestic and 

foreign destinations of such misappropriated data; 

 collecting and analyzing numerous iterations of the TikTok terms of use and privacy policies 

upon which defendants will rely for their arbitration and consent defenses, and developing 

the arguments and evidence necessary to defeat those defenses; 

 thoroughly researching the defendant corporations – with the aid of two teams of 

investigators in California and in China, an ESI expert, and colleagues with Chinese-language 

skills to translate documents – to better understand defendants’ corporate structure, data 

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collection and retention systems, internal reporting systems, business and advertising models, 

artificial intelligence and patent development programs, and other relevant foreign and 

domestic activities, all of which is relevant to establishing the claims at issue; 

 consulting with well-credentialed experts who conducted original research into the 

intersection of data privacy, artificial intelligence, Chinese corporations, and the Chinese 

government, including Chinese laws requiring data sharing with the government; and 

 researching issues such as jurisdiction and venue (including alter ego issues concerning the 

foreign defendants); various causes of action beyond BIPA; standing, damages, and 

injunctive relief; notice and consent; and arbitration and class action waivers. 

In early 2020, Bird Marella, Glancy Prongay, and Phillips Erlewine made another substantial 

investment to further develop the factual and legal foundation for a BIPA claim, including hiring 

another highly trained source code expert and a biometrics expert with notable BIPA litigation 

experience, both of whom helped to develop the unlawful face geometry scanning allegations. The 

resulting amended complaint has the most thorough BIPA allegations among the competing suits, 

focusing not just on the app’s Augmented Reality (“AR”) features that are the cornerstone of other 

suits, but also on stronger evidence of BIPA violations (and violations of other laws), such as: 

 The functionality and code of the TikTok app, including (1) content recommendations 

based on users’ race, ethnicity, and age; (2) face geometry scans to determine users’ age; (3) 

code for deepfake videos; and (4) code for age, race, ethnicity, and emotion recognition; 

 Ongoing work in China, including (1) the application of facial recognition technology to 

users’ videos by engineers skilled in computer vision, convolutional neural network, and 

machine learning; (2) patent applications for face, voice, age, race, and emotion recognition 

technologies; and (3) the functionality of the Chinese version of TikTok (Douyin) that allows 

its users to perform facial recognition on faces they selected from other users’ videos; and 

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 Defendants’ legal and political obligations to accumulate and share vast troves of 

data, including biometrics, in order to assist the Chinese government in achieving world 

dominance in artificial intelligence, and population surveillance and control. 

Prior to the filing of any other TikTok actions, these three firms participated in an April 6, 

2020 mediation of the original Federal and California claims and the BIPA claim. Mediation 

preparation involved more technical expert work, further developing responses to defendants’ 

anticipated motions, and formulating changes to defendants’ business practices. Bird Marella and 

Glancy Prongay served eight sets of discovery prior to mediation, and defendants responded to 

each. The two firms also negotiated and agreed with defendants on a protective order. 

Independently, Hausfeld and Burns Charest filed the first BIPA claim on April 30, 2020. 

Leading up to that filing, attorneys at the two firms put in substantial work over several months 

investigating and researching key factual and legal issues. This work included reviewing defendants’ 

corporate structure; reviewing pertinent patent applications; collecting and reviewing TikTok’s terms 

of service and privacy policy; collecting and reviewing news articles and other publicly available 

information about the functionality of the TikTok app; researching TikTok’s investigation by the 

FTC; reviewing prior BIPA litigation and case law; and researching causes of action, arbitration, 

class action waivers, and standing. Their complaint was the first to plead claims related to TikTok’s 

AR service utilizing user biometrics in violation of BIPA. It was only after they filed their detailed 

complaint and disclosed their work that numerous other law firms filed similar cases. 

Lesley Weaver and Amy Keller filed the first VPPA claim in these actions. The Litigating 

Firms then performed additional expert work and pled a VPPA claim based on new evidence they 

developed revealing defendants illicitly transfer users’ video viewing histories to Facebook and 

Google. None of the Settling Firms have brought a VPPA claim, nor have they brought all of the 

Litigating Firms’ multiple Federal and California claims. Also, the Litigating Firms were the first to 

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identify and raise concerns about the Executive Orders relating to preservation of evidence required 

by the class to prove its claims (Doc. Nos. 5, 11, 11-1, 12, 17), and have cleared conflicts with a 

former federal judge with expertise in data preservation to possibly serve as a special master. 

III. The Litigating Firms Have Worked Cooperatively Together And With Others. 

As the firms with the first two filed actions, the Litigating Firms came together to work 

cohesively as detailed above. This was not done as part of a leadership battle or to position any firm 

for any particular role; rather, the Litigating Firms realized the complementary skills they each added. 

The development of this team has always had a singular purpose: to build a comprehensive group to 

protect the class. Judge Lucy H. Koh appointed Mr. Rhow as Lead Counsel and the other Litigating 

Firms to the PSC to manage the consolidated California actions prior to the MDL transfer. 

The Litigating Firms made their original leadership proposal (fn. 1) in a cooperative spirit 

and to ensure protection of the class through equal consideration of viewpoints that may be contrary 

to those held by the Settling Firms. The Litigating Firms have further demonstrated their willingness 

and ability to work with firms outside their group by collaborating with other plaintiffs’ counsel on 

preservation issues. The Litigating Firms also organized a series of discussions among all plaintiffs’ 

counsel regarding the CMO 1 topics, culminating in the filing of a Joint Proposed Case Management 

Schedule today. Finally, despite having been excluded from the August 13 mediation, the Litigating 

Firms worked to schedule a third mediation with defendants before it was scuttled by others. 

IV. Mr. Rhow Has Significant Experience In This Type Of Litigation. 

As set forth in his declaration, Mr. Rhow has been recognized nationally for his experience 

in managing and winning high-stakes complex cases and as one of the top trial lawyers in America. 

As a Fellow of the American College of Trial Lawyers and a veteran of over 40 trials and 

arbitrations, Chambers has recognized him as a “trial expert” who specializes in “high-profile work” 

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working.” Benchmark Litigation has named him one of the top 20 California trial lawyers and one of 

the top 100 U.S. trial lawyers. Mr. Rhow is currently an appointed ICC arbitrator in a dispute 

involving Asian companies. 

Mr. Rhow has litigated and resolved numerous class actions involving the automotive, 

electronics, telecommunications, financial services, and apparel industries with potential liabilities 

ranging from $100 million to $1 billion, and he has served as lead counsel in a plaintiff-side class 

action where the class prevailed at trial. Mr. Rhow also has strong experience with high-profile 

China-related litigation, including successfully negotiating with the Chinese government and a major 

Chinese electronics company for the release of an imprisoned American executive. That case was 

the subject of a New York Times Pulitzer Prize winning investigative report. Mr. Rhow is also lead 

counsel in the Jho Low litigation, one of the highest profile matters in Asia. As a result of these and 

other representations, Mr. Rhow has expertise in the interplay between Chinese politics, U.S. 

politics, and large China-based companies such as defendants. And his Bird Marella team includes 

other attorneys with Chinese language skills and experience working in China. 

Mr. Rhow and his colleague Marc Masters began this investigation after having developed 

expertise in data privacy and source code issues, such as those in play here. Their experience began 

in 2010 when they tried to a jury a dispute between a Korean security software company and a 

Japanese internet security company. The relationships developed during that case with technical 

experts generated almost a decade of litigations and internal investigations in this area. Long before 

the Congressional investigations and Executive Orders concerning TikTok became news, Mr. Rhow 

and Mr. Masters initiated original research into the technical and legal issues now being litigated 

here. Their organic interest in privacy issues led to the initial filing against defendants and the 

subsequent collaborations that have culminated in the current MDL before this Court, all of which 

positions Mr. Rhow to serve as Co-Lead Counsel on this important litigation. 

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Respectfully submitted, 

DATED: September 8, 2020 BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

By: /s/ Ekwan E. Rhow 

 Ekwan E. Rhow 

BIRD, MARELLA, BOXER, WOLPERT, 

NESSIM, DROOKS, LINCENBERG 

& RHOW, P.C. 

1875 Century Park East, 23rd Floor 

Telephone: (310) 201-2100 

Email: erhow@birdmarella.com 

MDL Interim Counsel 

Attorneys for Plaintiffs Misty Hong, minor A.S., 

through her mother and legal guardian Laurel 

Slothower, and minor A.R., through her mother and 

legal guardian Gilda Avila 

CERTIFICATE OF SERVICE 

I hereby certify that on September 8, 2020, the foregoing document was filed electronically 

through the Court’s Electronic Case Filing System. Service of this document is being made upon all 

counsel of record in this case by the Notice of Electronic Filing issues through the Court’s 

Electronic Case Filing System on this date. 

 /s/ Ekwan E. Rhow 

 Ekwan E. Rhow 

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