IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

IN RE: TIKTOK, INC., CONSUMER 

PRIVACY LITIGATION 

This Document Relates to All Cases 

MDL No. 2948 

Master Docket No. 20-cv-4699 

Judge John Z. Lee 

Magistrate Judge Sunil R. Harjani 

REPLY IN SUPPORT OF EMERGENCY MOTION FOR LEAVE TO FILE 

MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER 

TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE

On behalf of himself and all others similarly situated, Plaintiff M.G., a minor child, by and 

through his father and legal guardian Bartosz Grabowski (collectively, “Plaintiff”), hereby submits 

this reply in support of his Emergency Motion for Leave to File a Motion for Temporary 

Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (ECF 

No. 70 (the “Motion”)). 

INTRODUCTION 

In opposing the Motion (ECF No. 86 (the “Opposition” or “Opp.”)), Defendants barely 

address the issue of leave to file, and instead focus almost entirely on the substance of Plaintiff’s 

proposed motion for a temporary restraining order (ECF No. 70-2). Relegating the issue before the 

Court — that is, whether Plaintiff should be allowed to file his motion — to a single, tacked-on 

sentence, Defendants argue that the proposed motion is “otherwise unauthorized,” but cite neither 

rule nor order in support. (Opp. at 3.) As argued in Plaintiff’s motion for leave, however, the relief 

sought in Plaintiff’s proposed motion violates neither the prohibition on discovery proceedings 

imposed by CMO-1, ¶ 12, nor the preservation obligations imposed by CMO-1 and CMO-2. In 

sum, Defendants devote the Opposition to attacking the merits of the proposed motion for 

temporary restraining order, effectively conceding that the Court should grant Plaintiff’s motion 

for leave. 

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As discussed below, the Court should grant both the Motion and the proposed motion for 

temporary restrainer order, and should enjoin Defendants from selling, transferring, or otherwise 

disseminating any uniquely identifying data in their possession pertaining to the voices and faces 

of Plaintiff and other TikTok users in Illinois to Oracle Corp. (“Oracle”) or any other acquiring 

entity. (See ECF No. 70-2.) 

ARGUMENT 

Defendants offer a series of misplaced arguments in opposition to the Motion. First, they 

argue that the relief sought is unnecessary because they do not possess biometric data and 

(relatedly) that Plaintiff has provided no evidence of such possession. Second, that because 

allegations of unlawful biometrics collection have been public knowledge for some time, either no 

emergency exists, or Plaintiff did not act diligently in seeking to address it. And third, that 

Plaintiff’s proposed motion fails to establish irreparable injury. As detailed more fully below, each 

argument ignores the substance of Plaintiff’s proposed motion. 

I. Defendants Admit to Possessing the Data that Plaintiff Seeks to Enjoin them from 

Transferring, and Plaintiff has Adequately Demonstrated that this Data was 

Collected by Defendants in Violation of BIPA. 

First, Defendants claim that “voiceprints” and “scans of face geometry” — explicitly 

delineated “biometric identifiers” regulated by BIPA — are “simply not a part of the user data that 

TikTok collects or maintains for U.S. users.” (Opp. at 1.) Thus, “there is no need,” or so 

Defendants’ argument goes, “for a Temporary Restraining Order because Defendants do not have 

the data that Plaintiff M.G. seeks to enjoin from transfer.” (Id.) But this naturally raises the 

question: If Plaintiff is seeking to enjoin Defendants from transferring data that they do not have, 

then why are Defendants opposing the requested injunction? 

The truth is that Defendants do have the data that Plaintiff seeks to enjoin them from 

transferring , namely “uniquely identifying data in their possession pertaining to the voices and 

faces of Plaintiff and the other unnamed Illinois Voice Class and Illinois Face Class members.” 

(ECF No. 70-2 at 1.) Not only have Defendants already admitted in this litigation that they plan to 

“transfer” all “relevant data” to Oracle, (see ECF No. 16 at 2), but it also simply defies common 

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sense to believe that the Defendants would agree to a substantial settlement, as rumored, with 

certain of the plaintiffs’ counsel if they never actually collected the type of data that could 

potentially expose them to liability under BIPA in the first place. There is no question that 

Defendants possess the data that Plaintiff seeks to enjoin them from transferring. 

Rather than admitting they possess and are on the verge of transferring this data to Oracle, 

Defendants recast the proposed motion as seeking to enjoin their sale, transfer, or dissemination 

of “voiceprints” and “face templates” (i.e., “biometric identifiers” or “biometric information” 

within the meaning of BIPA) and then, through linguistic sleight of hand, assert (based on their 

own self-serving legal interpretations of those statutory terms) that they “do not have the data that 

Plaintiff M.G. seeks to enjoin from transfer.” (Opp. at 1.) Tellingly, the Opposition never states 

that the “uniquely identifying data pertaining to faces and voices” — the data Plaintiff seeks to 

restrain from transfer — is “not a part of the user data that TikTok collects or maintains for U.S. 

users” (as they have stated with respect to “voiceprints and face templates”). (Opp. at 1.) So while 

Defendants deny having collected any “voiceprints” and/or “face templates” to transfer to Oracle, 

the statement is based on their own subjective belief that the data actually sought to be enjoined 

from transfer — which they do not deny having — does not constitute “voiceprints” or “face 

templates” (i.e., “scans of face geometry”) within the meaning of BIPA. This is remarkably 

disingenuous. 

Whether or not the data sought to be enjoined from transfer is regulated by BIPA is a 

complex question of both law and fact that cannot be resolved on defense counsel’s say-so alone 

at the outset of the case. Rather, in evaluating the merits of Plaintiff’s proposed motion for 

temporary restraining order, the relevant question is whether Plaintiff has a “better than a 

negligible chance of success” in demonstrating that the “relevant data” in Defendants’ possession 

(ECF No. 16 at 2) — namely, the uniquely identifying data that Defendants possess pertaining to 

his and other Illinoisans’ voices and faces — constitute “voiceprints” or “scans of face geometry” 

within the meaning of those terms in the statute. For all the reasons set forth in the proposed motion 

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for temporary restraining order (none of which the Opposition responds to), Plaintiff has a strong 

likelihood of successfully doing so and thus readily satisfies this factor. 

Defendants nonetheless contend that the Motion should be denied because it is not 

accompanied by admissible evidence showing that Plaintiff is likely to succeed on the merits of 

his claims, (Opp. at 3), and cite in support a number of cases where Plaintiffs have failed to present 

any evidence beyond “conclusory allegations made on ‘information and belief.’” (Opp. at 3.) In 

reality, Plaintiff does no such thing here. True enough, he cannot offer personal testimony 

identifying the who, what, where, when, why, and how of Defendants’ covert data-collection 

activities. But his complaint and proposed motion do not rest on mere supposition. Instead, he cites 

admissions by Defendants’ corporate affiliates, (see M.G. Docket, Case No. 20-cv-5305, ECF No. 

1, ¶¶ 21 n.8, 57, 63, 74), findings from third-party security researchers, (id. ¶¶ 64 – 71), and 

statements from United States government officials, (id. ¶ 75), which all demonstrate that 

Defendants do in fact collect biometric identifiers and information from their U.S. users, including 

Plaintiff 

In the end, Plaintiff substantiates his motion with multiple sources, while Defendants offer 

only the conclusory, unsupported assertions of counsel in opposition. Given that disparity, Plaintiff 

certainly “has a better than negligible chance of succeeding on the merits.” Ty, Inc. v. Jones Grp., 

Inc., 237 F.3d 891, 897 (7th Cir. 2001).1

1 Defendants contend that the proposed motion for temporary restraining order is without 

merit because the TikTok Privacy Policy “authorizes” their dissemination of users’ biometrics to 

Oracle. This argument fails for several reasons. For one thing, Plaintiff’s complaint alleges that he 

never agreed to such a document, (M.G. Docket, ECF No. 1, ¶ 40), and Defendants have presented 

no evidence that he did. But even if Defendants had obtained Plaintiff’s and the Classes’ assent to 

the Privacy Policy, that document has never said anything about biometric data – nothing 

whatsoever about Defendants’ collection or storage of their users’ biometrics, and plainly nothing 

about their plans to transfer their undisclosed trove of users’ biometrics to any acquiring entity. 

See Privacy Policy, TikTok (Jan. 1, 2020), https://www.tiktok.com/legal/privacypolicy?lang=en#privacy-us; Privacy Policy, TikTok (Aug. 2018). http://www.tiktok.com/i18n/ 

privacy [https://web.archive.org/web/20180829183230/http://www.tiktok.com/i18n/privacy]; 

Privacy Policy, TikTok (Jan. 2019), http://www.tiktok.com/i18n/privacy, [https://web. 

archive.org/web/20190130204425/http://www.tiktok.com/i18n/privacy/]; Privacy Policy, TikTok 

(Feb. 2019), https://www.tiktok.com/en/privacy-policy [https://web.archive.org/web/ 

20190515014632mp_/https://www.tiktok.com/en/privacy-policy]. Thus, Defendants’ assertion 

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II. Defendants’ Planned Biometrics Fire Sale is an Emergency Situation that Plaintiff 

has Diligently Sought to Prevent Since its Existence Became Known 

 Defendants next contend that there is no emergency, and that even if there were, Plaintiff 

failed to diligently seek the requested TRO because privacy class actions have been pending 

against Defendants for over a year and one of Plaintiff’s attorneys spoke to defense counsel about 

them in May of this year. (Opp. at 2.) That argument distorts both the record and the basis for 

Plaintiff’s request for emergency relief. 

As the proposed motion makes clear, the unlawful conduct Plaintiff seeks to enjoin — the 

transfer of his and the Classes’ personally identifying data pertaining to their faces and voices to 

an acquiring party — was not imminent (or even contemplated) in 2019, nor in May 2020 when 

one of Plaintiff’s lawyers spoke with Defense counsel, nor even after the President’s executive 

orders issued in early August. (ECF No. 70-2 at 7 – 8.) Rather, the basis for seeking the requested 

temporary restraining order did not arise until (at the very earliest) August 28, 2020, when 

Defendants filed a memorandum of law on the docket advising the parties and the Court that they 

intended to transfer all of the data “relevant” to this BIPA litigation to TikTok’s then-undisclosed 

acquirer (ECF No. 16 at 2); indeed, this was when Defendants first “indicate[d] that instead of 

simply selling TikTok, Inc. as a turnkey operation, ByteDance intend[ed] on transferring TikTok 

user data to the winning bidder.” (ECF No. 70-2 at 7 (citing ECF No. 16 at 2).) Prior to then, 

Plaintiff had no reason to believe, and there was nothing in the public record to indicate, that 

Defendants would actually disseminate all of TikTok’s data pertaining to American children, 

including the “relevant data” pertaining to Plaintiff’s and millions of other children’s voices and 

faces), to TikTok’s acquirer. Upon learning of Defendants’ planned transfer, Plaintiff and his 

that a transfer of their users’ biometric data to Oracle (or any other acquiring entity) would be “in 

accordance with the terms of the privacy policy” makes no sense. 

Moreover, unlike the Video Privacy Protection Act, BIPA lacks an exception for transfers 

incident to a transfer of ownership. See 18 U.S.C. §§ 2710(a)(2), (b)(2)(e). In fact, as discussed in 

Plaintiff’s complaint (M.G. Docket, ECF No. 1, ¶¶ 1 – 2) and his motions for temporary restraining 

order (M.G. Docket, ECF Nos. 3 – 4; Master Docket, ECF No. 70-2 at 4 – 5, 9 – 10), BIPA’s 

enactment was spurred by a transfer of biometric data incident to a corporate bankruptcy sale. 

Plaintiff is thus seeking to enjoin the very conduct that the Illinois legislature specifically gave the 

statute teeth to prevent against. 

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counsel immediately began preparing the Class Action Complaint and initial Emergency Motion 

for Temporary Restraining Order, both of which were ultimately filed on September 8, 2020 (M.G.

Docket, ECF Nos. 1, 3), just 11 calendar days (or six non-holiday business days) after the need to 

seek this relief first arose. 

Moreover, it was not until September 13, 2020 that Oracle was revealed as the winning 

bidder of TikTok’s U.S. user data and thus the proposed purchaser and transferee of the “relevant 

data” referenced in Defendants’ August 28 filing (ECF No. 16 at 2). In response, Plaintiff and his 

counsel once again acted with remarkable diligence: by the next day, September 14, 2020, Plaintiff 

and his counsel had prepared and filed the Motion and a proposed Motion for Temporary 

Restraining Order that would enjoin Defendants from selling, transferring, or otherwise 

disseminating the “relevant data” — again, the uniquely identifying data pertaining to his and the 

Classes’ faces and voices — to Oracle. Here too, the timeline demonstrates that Plaintiff and his 

counsel proceeded with extreme diligence.2

Any reasonable application of Rule 16’s “good cause” standard to the relevant timeline 

confirms that Plaintiff is entitled to leave to file his proposed motion for temporary restraining 

order (ECF No. 70-2). See NeuroGrafix v. Brainlab, Inc., No. 12 C 6075, 2020 WL 3453551, at 

2 Incidentally, the situation today is more pressing than ever before: as revealed in 

Defendants’ own filings and public reporting over the past ten days, it has become increasingly 

clear that Defendants do intend to disclose all U.S. TikTok user data to Oracle and potentially 

other partners. (Opp. at 1 – 2.) See also Echo Wang, Greg Roumeliotis, ByteDance picks Oracle 

as partner to try to save TikTok U.S., Reuters (Sept. 13, 2020), https://www.reuters.com/article/uschina-bytedance-tiktok-oracle-idUKKBN265000. In fact, it now appears that the crux of the 

proposed transaction is for Defendants to transfer TikTok’s entire database of U.S. user data to 

Oracle – in other words, exactly what Plaintiff seeks to enjoin from happening. See Raymond 

Zhong, TikTok Owner’s Big Reason to Strike a U.S. Deal: China Is Slowing, N.Y. Times (Sept. 

14, 2020), available at https://www.nytimes.com/2020/09/14/technology/china-bytedance-tiktoksale.html (“TikTok’s parent company, ByteDance, has chosen the software giant to be its U.S. 

technology partner, an arrangement that would most likely give Oracle oversight over data on 

American users.”); see also U.S. lawmakers raise questions about proposed Bytedance-Oracle 

deal, Reuters, Sept. 15, 2020, available at https://www.reuters.com/article/idUSKBN266338 

(“‘Making Oracle a middleman won’t protect Americans against Chinese government influence, 

and to make matters worse, Oracle has an awful record of harvesting and selling Americans’ 

private data to anyone with a credit card,’ Democratic Senator Ron Wyden said in a statement.”). 

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*1 (N.D. Ill. June 23, 2020) (“In the Seventh Circuit, courts applying this good cause standard 

‘primarily’ consider ‘the diligence of the party seeking’ to modify the schedule.”) 

(quoting Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 832 (7th Cir. 

2016)); see also Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011). 

III. Plaintiff and the Members of the Classes Would Suffer Irreparable Harm if their 

Immutable Biometric Data is Sold and Disseminated Without their Consent 

 Finally, Defendants halfheartedly contend that Plaintiff fails to establish that irreparable 

harm will result from its intended transfer to Oracle. (Opp. at 3 – 4.) As he details in the proposed 

motion and memorandum, however, fundamental public policy of the state “‘vest[s] in Illinois 

residents the right to control their biometric information by requiring notice before collection [or 

dissemination] and giving residents the power to say no by withholding consent.’” (ECF No. 70-2 

at 9 (quoting Patel v. Facebook Inc., 290 F. Supp. 3d 948, 953 – 54 (N.D. Cal. 2018).). And while 

Defendants may disagree that violation of that right creates an irreparable harm, the legislature has 

already put the issue to rest, finding that because “[b]iometrics ... are biologically unique to the 

individual ..., once compromised, the individual has no recourse.” 740 ILCS 14/5(c) (emphasis 

added). To put a bow on the matter, the legislature took the extra step of allowing a prevailing 

plaintiff to obtain injunctive relief in addition to statutory damages, 740 ILCS 14/20(4), in 

recognition of the irreparable nature of the harms to individuals posed by noncompliance. 

CONCLUSION 

Defendants’ opposition to Plaintiff’s emergency motion for leave to file his TRO motion 

ignores the issue of leave, and instead relies on a series of easily debunked challenges to the merits 

of his proposed motion. Defendant cannot obscure the basic facts, however: (1) public documents, 

including its own affiliates’ admissions, show that it collects biometrics from its U.S. users; (2) 

Defendants have only recently disclosed their intent to unlawfully transfer biometric data to an 

acquiring entity; and (3) the Illinois legislature made clear over a decade ago that if Defendants 

are allowed to proceed, Plaintiff and the proposed Classes will be irreparably harmed. 

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Accordingly, the Court should grant Plaintiff’s emergency motion for leave to file, and, 

because Defendant has already briefed the issue, grant Plaintiff’s proposed TRO motion and 

restrain Defendants from selling, transferring, or otherwise disseminating any “uniquely 

identifying data in their possession pertaining to the voices and faces of Plaintiff and the other 

unnamed Illinois Voice Class and Illinois Face Class members” to Oracle or any other entity. If 

Defendants do not have this data, then the Court’s order will restrain nothing and thus work no 

possible prejudice to Defendants. But if Defendants do possess this data, the Court’s order would 

allow Plaintiff and the members of the Classes to rest easy knowing that their immutable biometric 

data will not be further proliferated pending resolution of this action, without causing any 

identified or discernable prejudice to Defendants. 

Dated: September 19, 2020 Respectfully submitted, 

 

s/ J. Dominick Larry 

NICK LARRY LAW LLC 

J. Dominick Larry 

55 E Monroe St, Suite 3800 

Chicago, IL 60603 

Tel: (773) 694-4669 

Fax: (773) 694-4691 

Email: nick@nicklarry.law 

HEDIN HALL LLP 

Frank S. Hedin 

David W. Hall 

1395 Brickell Avenue, Suite 1140 

Miami, Florida 33131 

Tel: (305) 357-2107 

Fax: (305) 200-8801 

E-mail: fhedin@hedinhall.com 

 dhall@hedinhall.com 

BURSOR & FISHER, P.A. 

Scott A. Bursor 

Joseph I. Marchese 

Joshua D. Arisohn 

Philip L. Fraietta 

888 Seventh Avenue 

New York, NY 10019 

Tel: (646) 837-7150 

Fax: (212) 989-9163 

E-Mail: scott@bursor.com 

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 jmarchese@bursor.com 

 jarisohn@bursor.com 

 pfraietta@bursor.com 

Counsel for Plaintiff, by and through his father and 

legal guardian Bartosz Grabowski, and the Putative 

Classes

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CERTIFICATE OF SERVICE 

 I hereby certify that on September 19, 2020, I served the above and foregoing by causing 

a true and accurate copy of such paper to be filed and served on all counsel of record via the 

Court’s CM/ECF electronic filing system. 

 s/ J. Dominick Larry 

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