UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: TIKTOK, INC. CONSUMER

PRIVACY LITIGATION

MDL No. 2948

Master Docket No. 20 C 4699

This Document Relates to All Cases

Judge John Z. Lee

Magistrate Judge Sunil R. Harjani

OBJECTION OF BRIAN BEHNKEN AND JOSHUA DUGAN

TO PROPOSED CLASS ACTION SETTLEMENT

I. Introduction

This Court should deny preliminary approval of the Settlement Agreement1 because its 

terms and the proposed notice plan violate Rule 23 of the Federal Rules of Civil Procedure 

(hereinafter “Rule”) and Due Process. In addition to the reasons set forth by previous objectors2

, 

the proposed settlement is procedurally unfair because its burdensome opt-out requirements violate 

due process. Moreover, the proposed settlement (“Proposed Settlement”) is invalidated by the 

Federal Arbitration Act (“FAA”) and Illinois law to the extent it would alter the provisions of the 

forced mandatory individual arbitration provision TikTok included in its Terms of Service with 

every user. 

1 “Settlement Agreement” refers to the Settlement Agreement and Release filed in connection with Plaintiffs’ 

Motion for Preliminary Approval of Class Action Settlement filed on February 25, 2021. See Doc. #122. 2 Objectors Brian Behnken and Joshua Dugas hereby adopt the objections set forth in the briefs filed by Objectors 

Dennis Litteken and Mark S., as Parent and Legal Guardian of His Minor Son, A.S., In Re: TikTok, Inc., Consumer 

Privacy Litigation, Case No.: 1:20-cv-04699 Document Nos. 126 and 132.

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The objectors, Brian Behnken and Joshua Dugan3

, and 9574 other individuals (“Arbitration 

Claimants”) are Illinois resident TikTok users who uploaded TikTok’s of themselves while, 

unbeknownst to them, TikTok was surreptitiously collecting and sharing their biometric data in 

violation of Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq. Like all other 

TikTok users, Arbitration Claimants agreed to a mandatory individual arbitration provision with a 

class waiver when signing-up for the TikTok app. In accordance with TikTok’s Terms of Service5, 

the Arbitration Claimants notified TikTok of their claims under BIPA and intention to resolve 

them in arbitration if a satisfactory resolution cannot be reached.

6 The objectors, and the other 

Arbitration Claimants, are members of the Proposed Class. 

Under the terms of the Proposed Settlement’s opt-out procedures, Arbitration Claimants 

and any other class members who seek to be excluded from the settlement will find it challenging, 

if not impossible, to opt-out and pursue arbitration. This is because although TikTok is used 

entirely online – and the proposed notice plan would have class members opt-in online – any class 

member who wishes to opt-out must individually mail a handwritten letter signed by the person 

seeking exclusion.”7

 Further, Arbitration Claimants and proposed class members are prohibited 

from “mass” or “class” opting out through counsel.8

3 Objectors Brian Behnken and Joshua Dugan will provide Rule 23 notices on or before final approval should they 

not be permitted to opt-out in connection with this filing. 4 Each Arbitration Claimant individually retained Labaton Sucharow LLP, as undersigned counsel, to represent them 

in connection with their claims. Labaton Sucharow LLP is an experienced class action litigation firm with more 

than 65 lawyers and offices in New York, Delaware, and Washington D.C. It regularly represents consumers in 

class actions, including as one of three firms that recently obtained a $650 million settlement on behalf of a class of 

1.6 million Illinois residents in In re Facebook Biometric Information Privacy Litigation., Case No. 15-cv-03747 

(N.D. Cal.).

5 A copy of TikTok’s Terms of Service is attached hereto as Exhibit A. 6 See Redacted Notice of Claims Letter, attached hereto as Exhibit B. 7 See, e.g., Doc. #122-1 (Exhibit A – Settlement Agreement) (“For a Request for Exclusion to be considered by the 

Court, it must set forth: (i) the name of the Action; (ii) the person’s or entity’s full name, address, email address and 

telephone number; (iii) a specific statement of the person’s or entity’s intention to be excluded from the Settlement; 

(iv) the identity of the person’s or entity’s counsel, if represented; and (v) the person’s or entity’s authorized 

representative’s signature and the date on which the request was signed.”) (emphasis added). 8 Id. (“So called ‘mass’ or ‘class’ opt-outs shall not be allowed.”) (emphasis added).

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Arbitration Claimants respectfully request this Court deny preliminary approval of the 

Settlement Agreement or, in the alternative, either modify the proposed class definitions to exclude 

Arbitration Claimants or allow the Arbitration Claimants to opt-out through counsel and other 

class members seeking to be excluded to do so online.

II. TikTok’s Terms of Service Require Arbitration of Individual Claims

TikTok’s relationship with its users is governed by its Terms of Service.9 All TikTok users 

who create a TikTok account (and all members of the Proposed Settlement Classes) agree to the 

Terms of Service.10 The Terms of Service are binding on the user and TikTok. It is undisputed 

that the Arbitration Claimants are bound by TikTok’s arbitration agreement, the very avenue that 

they intend to use to pursue their claims. As TikTok has repeatedly argued in putative class actions 

filed throughout the United States, all users (including all members of the Proposed Settlement 

Classes) who create an account with the video sharing app, TikTok, agree to TikTok’s Terms of 

Service.

The Terms of Service contain a mandatory, individual arbitration clause with a class action 

waiver:

ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE 

TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF 

RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR 

CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION 

CLAUSE, YOU AND TIKTOK AGREE THAT DISPUTES BETWEEN US 

WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND 

YOU AND TIKTOK WAIVE ANY RIGHT TO PARTICIPATE IN A CLASSACTION LAWSUIT OR CLASS-WIDE ARBITRATION. Id.

The arbitration clause, which is expressly subject to the Federal Arbitration Act, 9 U.S.C. 

§2 (hereinafter “FAA”)11, applies to all disputes, except claims brought in small claims court or 

9 See Exhibit A. 10 Id. 11 Id.

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claims made by TikTok related to infringement of its intellectual property or unauthorized access 

to its services, including “any dispute relating to the interpretation, applicability, 

unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, 

including any claim that all or any part of this arbitration agreement is void or voidable.” 12 Only

claims that are not subject to binding individual arbitration grant exclusive jurisdiction to this 

Court. 13

As instructed by TikTok’s Terms of Service, before initiating arbitration, either party must 

first attempt to resolve the claim informally. If no resolution is reached, either party can initiate 

arbitration before the American Arbitration Association (“AAA”), one of the nation’s largest 

arbitration providers. Customers can notify TikTok of their intention to commence arbitration by 

sending an email to legal@tiktok.com. The Arbitration Claimants have complied with TikTok’s 

Terms of Service by notifying TikTok via email on March 31, 2021 of their claims under BIPA 

and intention to initiate arbitration should TikTok decline to resolve their disputes.

14

The Terms of Service incorporate AAA’s Supplementary Procedures for ConsumerRelated Disputes.15 While AAA consumer arbitration ordinarily requires each individual 

consumer to pay a $100 filing fee (or less depending on how many claimants are filing individual 

arbitrations16), TikTok will “reimburse those fees for claims where the amount in dispute is less 

than $10,000.” Id. at Section 11. TikTok also pays any additional filing, case management, and 

arbitrator fees, totaling at least $3,200 per claimant. Id.; see also Exhibit C. 

12 Id. at Section 11. 13 Id. 14 See Exhibit B. 15 See Exhibit A. at Section 11. 16 Recently, AAA has reduced the filing fee for individual claimants in cases where hundreds of claimants are filing 

individual arbitrations against the same defendant. See 

https://www.adr.org/sites/default/files/Consumer_Fee_Schedule_2.pdf attached hereto as Exhibit C.

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AAA arbitrations have due process protocols, including a right to be represented by 

counsel, discovery procedures, the right to an in-person hearing and to have any proceeding 

conducted at a location convenient to the consumer, and a neutral arbitrator selected jointly by the 

parties. See Exhibit C. 

TikTok has repeatedly told courts, including this Court, that it intends to enforce the 

arbitration provision against class action litigation:

17

Even if Plaintiffs could state a claim, those claims are subject to an arbitration 

and class action waiver agreement that would preclude this class action. The 

Objector incorrectly argues that minors are not bound by arbitration agreements 

and class action waivers. While minors may have the right under some state laws 

to disaffirm contracts made before the age of majority, those contracts are valid and 

binding until actual disaffirmance takes place. See, e.g., Cal. Fam. Code § 6700 (“a 

minor may make a contract in the same manner as an adult, subject to the power of 

disaffirmance”); G.G. v. Valve Corp., No. 16-1941, 2017 WL 1210220, at *3 (W.D. 

Wash. Apr. 3, 2017) (granting motion to compel arbitration because minors were 

bound by arbitration agreement with defendant); C.M.D. ex rel. De Young v. 

Facebook, Inc., 621 F. App’x 488, 489 (9th Cir. 2015) (“By continuing to use 

facebook.com after bringing their action, Plaintiffs manifested an intention not to 

disaffirm the contract.”). And, “[i]f a minor cannot return the benefits obtained ... 

then she is effectively precluded from disaffirming the contract in order to get back 

the consideration she has given.” I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. 

Supp. 3d 196, 210 (S.D.N.Y. 2015) (minor plaintiff was “precluded from 

disaffirming the contract” where disaffirmance would “put her in a superior 

position than she would have occupied had she never entered the [contract]”); 

E.K.D. ex rel. Dawes v. Facebook, Inc., 885 F. Supp. 2d 894, 900 (S.D. Ill. 2012) 

(minor plaintiffs could not disaffirm the forum-selection clause in Facebook’s 

terms because they “have used and continue to use facebook.com”); Sheller ex rel. 

Sheller v. Frank’s Nursery & Crafts, Inc., 957 F. Supp. 150, 153 (N.D. Ill. 1997) 

(enforcing arbitration provision in contract against minors where minors had 

received the benefits of the contract).18 

***

17 After the Supreme Court’s decision in AT&T Mobility v. Concepcion, arbitration clauses in consumer contracts 

are widely enforced, except in limited circumstances. 563 U.S. 333 (2011). Courts in this District routinely enforce 

arbitration clauses contained in electronic agreements. See, e.g., 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); Johnson v. Uber Techs., 

Inc., No. 16-cv-5468, 2018 U.S. Dist. LEXIS 161155, at *3-4 (N.D. Ill. Sep. 20, 2018) (same). 18 See TikTok’s Statement in Support of Final Approval of Class Settlement and Opposition to Motion to Intervene 

dated June 20, 2020 (ECF Doc. #34) filed in T.K., et al v. Bytedance Technology Co., Ltd, et al, Case No.: 1:19-CV07915 (N.D. IL), and attached hereto as Exhibit D at pp. 8-9.

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“Defendant TikTok, Inc., the operator of the TikTok—Make Your Day app (“the 

App”) intends to file a motion to compel arbitration, as it believes Plaintiff agreed 

to arbitrate any claims arising from her use of the App. If any part of this action is 

not referred to arbitration, foreign defendants Beijing Bytedance Technology Co., 

Ltd. and Musical.ly (“the Foreign Defendants”) will move to dismiss for lack of 

personal jurisdiction as the Foreign Defendants are not subject to personal 

jurisdiction in California because they are not incorporated here, they do not have 

their principal place of business here, and they do not operate the TikTok App. 

Similarly, while defendant Bytedance Inc. does have its headquarters in this 

District, this defendant is not a proper defendant in this action because it plays no 

role in the operation of the App. Plaintiff appears to have simply named every entity 

it could find with any corporate relationship to defendant TikTok, Inc. At a 

minimum, Plaintiff should drop all defendants but TikTok, Inc. from the amended 

complaint Plaintiff intends to file on May 11, 2020 to avoid wasting the Court’s 

and the parties’ resources on needless motion practice to resolve these issues.”19

On the very first page of their preliminary approval motion, Plaintiffs’ admit that they 

faced “material risks” that this Court will grant TikTok’s anticipated motion to compel 

arbitration with respect to non-minor users.

20 As Plaintiffs go on to state, the enforcement of the 

arbitration clause is a significant risk for the class:

First, TikTok has repeatedly asserted that Plaintiffs’ claims are subject to an 

arbitration and class action waiver agreement. According to TikTok, at all 

relevant times, every TikTok user agreed to an arbitration and class-waiver 

provision in the App’s Terms of Service (“Terms”). When users create their 

accounts in the App, they encounter a sign-in screen with hyperlinks to the Terms

that read: “By continuing, you agree to TikTok’s Terms of Use and confirm that 

you have read TikTok’s Privacy Policy.” While Plaintiffs believe TikTok’s policies 

were not adequately presented or otherwise disclosed to its users, and that class 

members should not be bound by their provisions, Plaintiffs acknowledge that 

courts have consistently held that users were on notice of—and thus had agreed 

to—virtually identical disclosures. See, e.g., 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); Peter v. DoorDash, Inc., 

No. 19-CV-06098-JST, --- F. Supp. 3d ---, 2020 WL 1967568, at *4 (N.D. Cal. 

19 See TikTok’s position asserted in the Joint Case Management Conference Statement dated April 22, 2020, (ECF 

Doc. #30) filed in Hong v. ByteDance, Inc., A Corporation, et al, Case No.: MDL 2948) (N.D. Cal.), and attached 

hereto as Exhibit E at pp. 2-3. 20 See Plaintiffs’ Motion for Preliminary Approval of a Class Action Settlement in In Re: TikTok, Inc., Consumer 

Privacy Litigation, Case No.: 1:2020-cv-04699 (N.D. IL), Document No. 122 (“Preliminary Approval Motion”).

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Apr. 23, 2020) (same); Johnson v. Uber Techs., Inc., No. 16-cv-5468, 2018 U.S. 

Dist. LEXIS 161155, at *3-4 (N.D. Ill. Sep. 20, 2018) (same); Dohrmann v. Intuit, 

Inc., 823 F. App’x 482 (9th Cir. 2020) (reversing denial of motion to compel 

arbitration where website required acknowledgment of agreement before 

proceeding).21

III. TikTok Suddenly Reverses Course, Seeking A Class-Wide Release To Bar 

Enforcement Of The Same Mandatory Arbitration Clause It Imposed On 

Consumers. 

TikTok is now willing to waive its mandate to arbitration under the Settlement Agreement

(for purposes of settlement only, of course). But TikTok cannot avoid its obligations to arbitrate 

or waive the Arbitration Claimants’ right to avoid the burdens of a class proceeding in court. It is 

“the irony upon irony” that TikTok now “wishes to resort to a class-wide lawsuit, the very device 

it denied to the [claimants], to avoid its duty to arbitrate.” Abernathy v. DoorDash, Inc., 438 F. 

Supp. 3d 1062, 1068 (N.D. Cal. 2020). 

TikTok’s Terms of Service unequivocally state that all disputes must be resolved by 

binding arbitration rather than in court. See Exhibit A (emphasis added). The only exceptions 

are claims brought in small claims court or claims made by TikTok related to infringement of its 

intellectual property or unauthorized access to its services. Id. In stark contrast to TikTok’s prior 

assertions about the enforceability of its arbitration clause, TikTok now seeks to create a new 

“settlement” exception that gives it the right to resolve disputes currently noticed to be arbitrated 

through a class-wide settlement. No such exception exists. The Arbitration Claimants respectfully 

request that this Court require TikTok to honor its Terms of Service and allow the Arbitration 

Claimants to arbitrate their claims. 

21 Preliminary Approval Motion, at 4-5.

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IV. The Opt-Out Procedure Violates Due Process

In return for the steep discount on the valuable statutory claims possessed by a nearly 90-

million-member class, TikTok demanded an onerous set of requirements that burden the 

Arbitration Claimants’ ability to opt-out and proceed with arbitration. As previously stated, the 

Proposed Settlement Agreement’s provision requires users seeking to exercise their due process 

right to opt-out to prepare and mail a timely letter to a P.O. Box in Pennsylvania that among other 

things, identifies the action, provides full name, address email address and telephone number, and 

includes a signature and the date it was signed – while the opt-in claim form is digital and submitted 

online.

22 The terms of the opt-out provision specifically exclude “mass” or “class” opt-outs. 

Courts routinely find these stringent opt-out provisions to be unfair and unduly burdensome. See, 

e.g. Arena v. Intuit Inc., 2021 WL 834253, at *11 (N.D. Cal. Mar. 5, 2021).

By inserting a clause that specifically excludes “mass” or “class” opt-outs, TikTok’s 

motives are obvious: the Arbitration Claimants would not object to inclusion in a class settlement 

if it offered an unimpeded choice to preserve their right to arbitration. Specifically, the Arbitration 

Claimants would not object to the settlement if class members who individually retained counsel 

could communicate their desire to opt out through counsel. Counsel can advise each client on how 

to proceed regarding any settlement. If the Court allows the Arbitration Claimants to communicate 

their opt-outs through their separately retained counsel, undersigned counsel will ask each 

Arbitration Claimant to make an individual choice regarding whether to participate in the 

settlement and then communicate that choice to the Court. But TikTok will never agree to those 

22 See, e.g., Doc. #122-1 (Exhibit A – Settlement Agreement) (“For a Request for Exclusion to be considered by the 

Court, it must set forth: (i) the name of the Action; (ii) the person’s or entity’s full name, address, email address and 

telephone number; (iii) a specific statement of the person’s or entity’s intention to be excluded from the Settlement; 

(iv) the identity of the person’s or entity’s counsel, if represented; and (v) the person’s or entity’s authorized 

representative’s signature and the date on which the request was signed.”) (emphasis added).

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terms because it is relying on a burdensome opt-out process to obstruct and confuse the Arbitration 

Claimants into losing their rights without affirmative consent. That is the very process TikTok 

promised by contract not to use. This Court should not endorse TikTok’s efforts to avoid its own 

contract terms.

ARGUMENT

I. The Settlement Is Invalidated By The Federal Arbitration Act Because It 

Abrogates Section 11 Of TikTok’s Terms of Service.

The FAA states that agreements to arbitrate in any “contract evidencing a transaction 

involving commerce . . . shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. “The 

overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements 

according to their terms so as to facilitate streamlined proceedings.” AT&T Mobility LLC v. 

Concepcion, 563 U.S. 333, 344 (2011). This “liberal federal policy favoring arbitration 

agreements” applies “notwithstanding any state substantive or procedural policies to the contrary.” 

Id. at 346 (quotation marks omitted). It “preempts any state rule discriminating on its face against 

arbitration,” including state law that is facially discriminatory, or “any [state] rule that covertly 

accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the same 

defining features of arbitration agreements.” Kindred Nursing Centers L.P. v. Clark, 137 S.Ct. 

1421, 1426 (2007). The FAA “rests on the authority of Congress to enact substantive rules under 

the Commerce Clause,” Southland Corp. v. Keating, 465 U.S. 1, 11 (1984), and the “substantive” 

rights derived by the FAA are directly enforceable in both federal and state courts. Perry v. 

Thomas, 482 U.S. 483, 489 (1987). The FAA applies to any arbitration agreement that is “written” 

and in a contract “evidencing a transaction involving commerce.” 9 U.S.C. § 2. 

The FAA applies to a class action settlement. “[T]he FAA does not authorize a district 

court to enjoin arbitration” and the claimant’s “contractual and statutory right to arbitrate may not 

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be sacrificed on the altar of efficient class action management.” In re Piper Funds, Inc. Inst. Gov’t 

Income Portfolio Litig, 71 F.3d 298, 302-03 (8th Cir. 1995). Piper Funds is instructive. There, 

the court reversed a temporary injunction against a pending arbitration entered into in the context 

of a proposed class action settlement, finding that it “significantly frustrated [claimant’s] 

contractual rights [to arbitrate], as protected by the FAA.” Id. Courts throughout the country have 

followed Piper in applying the FAA to class action settlements involving claims governed by an 

arbitration agreement. See Ahlbrand v. Keeley, 1998 WL 2001152, at *1 (Mich. App. Jan. 9, 1998) 

(granting class member opt-out of class to pursue arbitration because “the declaration filed . . . 

demonstrates a clear intent to choose arbitration over participation in the class action”) (citing 

Piper); Arnold v. DirectTV, Inc., 2012 WL 266452, at *2 (E.D. Mo. 2012) (finding that the FAA 

prohibits courts from enjoining arbitration in class action proceedings) (citing Piper); but see Stott 

v. Capital Financial Services, Inc., 277 F.R.D. 316, 341 (N.D. Tex. 2011) (“If the Court were 

considering a non-“limited fund” settlement that provided class members the ability to opt out, the 

Court would not be willing to sacrifice individual class members’ contractual right to arbitrate 

upon the altar of efficient class action management.”) (internal quotation omitted).

Illinois Courts agree with Piper. “A court may not authorize notice to individuals 

whom the court has been shown entered mutual arbitration agreements waiving their right 

to join the action.” 23 Bigger v. Facebook, Inc., No. 19-1944 (7th Cir. 2020). Bigger is 

authoritative. In Bigger, the United States Court of Appeals for the Seventh Circuit was asked to 

resolve the issue as to whether employees who signed a valid arbitration provision were required 

to receive notice of a collective action. Since employees who signed arbitration provisions waived 

their right to “join the action” – thus becoming ineligible - the Court found that notice to those 

23 Bigger v. Facebook, Inc., No. 19-1944 (7th Cir. 2020) attached hereto as Exhibit G.

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individuals is not authorized because it would only cause confusion and “prompt futile attempts at 

joinder.” Id. 

The opt-out procedures contained in the Proposed Settlement are also invalidated by the 

FAA to the extent they impose burdens on arbitration not found in the Terms of Service. The 

Terms of Service require customers seeking to arbitrate to first attempt to resolve the claim 

informally and to then notify TikTok’s legal department via email if they wish to commence 

arbitration. They do not require consumers to individually mail a wet-ink form to a P.O. Box in 

Pennsylvania, especially when they are represented by counsel. That would be absurd, since 

TikTok’s business is conducted entirely online, and counter-productive, since TikTok wants to 

make it as easy as possible for customers to resolve disputes with it though the Terms of Service. 

Having agreed with consumers to resolve disputes informally or through arbitration within the 

framework established by the FAA, TikTok cannot impose additional requirements not found 

within the Terms of Service as part of a class action settlement. Piper Funds, 71 F.3d at 302-03. 

II. The Onerous Opt-Out Procedure Insulates TikTok from Its Arbitration 

Provision and Violates Due Process.

Opt-out rights in class settlements are evaluated as a matter of due process. Philips 

Petroleum Co. v. Shutts, 472 U.S. 797, 812 n.3 (1985). Courts routinely find that the class action 

opt-out provisions that impose the same “wet-ink” signature and mail-in form procedures in the 

Settlement are unduly burdensome. See, e.g., Abernathy, 438 F. Supp. 3d 1062, 1067 (N.D. Cal 

2020) (wet ink signature requirement was “an obvious attempt to make it as hard as possible for 

petitioner to opt out, thus binding them to the settlement”); In re MyFord Touch Consumer 

Litigation, 2018 WL 10539267, at *1 (N.D. Cal. June 7, 2018) (denying preliminary approval of 

settlement because “[I]s there a reason to require a claimant seeking this relief to submit a physical 

signature rather than an electronic attestation?”); Knight v. Concentrix Corp., 2019 WL 3503052, 

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at *6 (N.D. Cal. Aug. 1, 2019) (rejecting argument that purported class member must opt-in via 

wet ink signature because “documents are routinely sent and signed electronically”). 

Recently, the United States District Court for the Northern District of California denied 

preliminary approval of a class action settlement with the very same opt-out requirements in a 

similar context in the ongoing Intuit consumer litigation. Arena v. Intuit, 2021 WL 83425, at *10 

(N.D. Cal. March 5, 2021). Intuit, a major provider of tax filing software and services, spent years 

steering consumers towards paid tax filing software that cost approximately $100 per year while 

failing to adequately disclose the existence of free software for low-income and servicemember 

customers. Intuit’s terms of service with customers contained a mandatory individual arbitration 

clause, and the company successfully moved to compel arbitration of the class action. Id., see also 

Dohrmann v. Intuit, Inc., 823 F. App’x 482 (9th Cir. 2020) (reversing denial of motion to compel 

arbitration). Intuit is cited by Plaintiffs’ in their motion for preliminary approval as justification 

for why the arbitration clause presents “material risks” to prosecution of this case as a class 

action.24

When thousands of consumers attempted to enforce their right to arbitrate, Intuit reached 

a class action settlement with the same class plaintiffs it had previously compelled to arbitration. 

This settlement included an injunction against arbitrations and a requirement that class members 

comply with burdensome opt-out procedures. The judge refused to grant preliminary approval, 

finding the settlement did not meet basic standards of fairness, reasonableness, or adequacy. With 

respect to the opt-out requirements, Judge Charles R. Breyer stated:

The Court concludes that the opt out requirements in the proposed settlement are 

unduly burdensome given the unique circumstances of this litigation . . . requiring 

these class members to opt out by mailing a hard copy letter with a “wet-ink” 

signature serves little purpose but to burden those who wish to opt out. In a world 

where Intuit can not only administer settlement claims electronically, but also 

24 Motion for Preliminary Approval, at 1.

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facilitate safe, legal tax-filing electronically, Intuit can assuredly process opt outs 

electronically. If electronic signatures are enough for Intuit and the IRS during tax 

season, they should be enough for Intuit here. Id.

Like in Intuit, TikTok has no problem with users downloading and using TikTok, accepting

the Terms of Service, or accepting claims electronically.

25 To require class members to opt-out 

using a “wet-ink” signature on a mail-in form that is not even provided to them “serve[s] little 

purpose but to burden those who wish to opt out.” Intuit, 2021 WL 834253, at *10; see also Exhibit 

F at Section 9. It is likely that many Illinois resident class members would otherwise decide to 

opt-out of a settlement that provides them with just $19 based on expected claims rates in other 

major data privacy class action settlements (Litteken Obj. at 9) and proceed to individual 

arbitration. These individuals would be deterred by both the low amount provided in the Proposed 

Settlement and its burdensome opt-out requirements.

Burdensome opt-out requirements like these are sufficient basis to deny a class action 

settlement even at preliminary approval. See Intuit, 2021 WL 834253, at *10; Hadley v. Kellogg 

Sales Co., 2020 WL 836673, at *8 (N.D. Cal. Feb. 20, 2020) (denying preliminary approval of 

settlement in part based on opt-out procedure that was “needlessly burdensome for class members” 

where class members who wish to opt-out must download a form from the website, complete it, 

and mail back to the administrator); Newman v. AmeriCredit Fin. Servs. Inc., 2014 WL 12789177, 

at *6 (S.D. Cal. Feb. 3, 2014) (denying preliminary approval because of opt-out mailing 

requirement and limitation on ability for class members to opt-out as a group). At a minimum, the 

Court should modify the Proposed Notice to permit the Arbitration Claimants to opt-out through 

counsel, and to require TikTok to provide the rest of the class an electronic means to opt-out that 

is functionally equivalent to the opt-in procedures. This procedure would guarantee that those 

25 See the Proposed Settlement Notice, Exhibit F at Section 8 (stating a claimant can “submit ... a Claim Form 

Online”). 

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class members that wish to participate in the Proposed Settlement may do so, while those who 

wish to opt-out and exercise their rights under the Terms of Service to proceed in individual 

arbitration may also do so with minimal burden. 

CONCLUSION

This Court should deny preliminary approval of the Proposed Settlement because it is 

invalidated by the FAA, is not fair, reasonable, or adequate for the Settlement Class, and violates 

Due Process. If the Court prefers to modify the Proposed Settlement, it should exclude the 

Arbitration Claimants or permit them to opt-out, through counsel, and pursue their rights under 

Section 11 of the TikTok Terms of Service. Should the Preliminary Approval Order contain any 

injunction against arbitrations, the Court should also decline to enter that order without explicitly 

carving out arbitrations from its scope. 

Dated: April 2, 2021

/s/____Michael D. Smith______

Michael D. Smith (6210109)

Law Office of Michael D. Smith, P.C.

231 South LaSalle Street

Suite 2100

Chicago, Il 60604

Tel: (312) 546-6138

msmith@smithlawchicago.com

Jonathan Gardner (pending pro hac vice)

Melissa H. Nafash (pending pro hac vice)

Jonathan D. Waisnor (pending pro hac vice)

LABATON SUCHAROW LLP

140 Broadway

New York, NY 10005

Tel: (212) 907-0700

Fax: (212) 818-0477

jgardner@labaton.com

mnafash@labaton.com

jwaisnor@labaton.com

Attorneys for Objectors and the Arbitration Claimants

Case: 1:20-cv-04699 Document #: 142 Filed: 04/02/21 Page 14 of 14 PageID #:2688