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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 

 

DECLARATION OF FORMER UNITED STATES DISTRICT 

JUDGE LAYN R. PHILLIPS REGARDING APPROVAL OF SETTLEMENT

 I, LAYN R. PHILLIPS, declare pursuant to 28 U.S.C. § 1746 as follows: 

1. I submit this Declaration in my capacity as the mediator in connection with the 

proposed settlement of the claims asserted in this action. While the mediation process is 

confidential, the parties have authorized me to inform the Court of the procedural and substantive 

matters set forth herein in support of approval of the Settlement. I make this Declaration based 

on personal knowledge and am competent to so testify. For the reasons discussed herein, I believe, 

based on my extensive discussions with the parties and the information made available to me both 

before and during two separate rounds of mediation, that the $92 million settlement was negotiated 

in good faith and represents a fair and reasonable settlement for the class given the risks involved. 

2. I am a former U.S. District Judge, a former United States Attorney and a former 

litigation partner with the law firm of Irell & Manella LLP. I currently serve as a mediator and 

arbitrator with my own alternative dispute resolution company, Phillips ADR Enterprises, which 

is based in Corona del Mar, California. I am a member of the bars of Oklahoma, Texas, California 

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and the District of Columbia, as well as the United States Courts of Appeals for the Ninth and 

Tenth Circuits and the Federal Circuit. I earned my Bachelor of Science in Economics, as well as 

my J.D., from the University of Tulsa. I also completed two years of L.L.M. work at Georgetown 

University Law Center in the area of antitrust and economic regulation of industry. After serving 

as an antitrust prosecutor and an Assistant United States Attorney in Los Angeles, California, I 

was nominated by President Reagan to serve as a United States Attorney in Oklahoma, and did so 

for approximately four years. 

3. I personally tried many cases and oversaw the trials of numerous other cases as a 

United States Attorney. While serving as a United States Attorney, I was nominated by President 

Reagan to serve as a United States District Judge for the Western District of Oklahoma. While on 

the bench, I presided over a total of more than 140 federal trials and sat by designation in the 

United States Court of Appeals for the Tenth Circuit. I also presided over cases in Texas, New 

Mexico and Colorado. 

4. I left the federal bench in 1991 and joined Irell & Manella, where for 23 years I 

specialized in alternative dispute resolution, complex civil litigation and internal investigations. In 

2014, I left Irell & Manella to start my own company, Phillips ADR Enterprises, which provides 

mediation and other alternative dispute resolution services. 

5. Over the past 25 years, I have devoted a considerable amount of my professional 

life to serving as a mediator and arbitrator in connection with large, complex cases such as this 

one. I have successfully mediated numerous complex commercial cases, including large-scale 

data privacy actions. 

6. I was first contacted by certain Plaintiffs’ counsel and Defendants’ counsel in 

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early 2020 to serve as mediator in connection with a potential resolution of the litigation, and I 

agreed. The parties submitted two rounds of lengthy and detailed briefs, including proposed term 

sheets, in March 2020. These various documents addressed highly complex factual and 

technological issues that revealed substantial expert and investigatory work. This briefing also 

tackled directly relevant legal issues such as: (1) whether the arbitration and class action waiver 

provisions apply; (2) whether the privacy policies adequately disclose the conduct at issue such 

that user consent is obtained; (3) whether damages had been alleged or could be established in 

fact; (4) whether the elements of the various causes of action had been alleged or could be 

established in fact; and (5) whether a class could be certified. The term sheets revealed strongly 

opposed and adversarial visions of the case, both in terms of the appropriate injunctive relief 

necessary to protect the class and the monetary sum required to compensate the class for its 

injuries. On April 6, 2020, I conducted an approximately 12-hour mediation with representatives 

of the parties, but the mediation did not result in a settlement. 

7. In early June, I was separately contacted by other Plaintiffs’ counsel and 

Defendants to facilitate their discussions related to resolving the litigation, and I agreed to serve 

as their mediator. 

8. Prior to this second mediation session, the parties provided me detailed mediation 

statements that addressed key factual issues, and the important legal issues related to both liability 

and damages. For example, TikTok maintained the position that Plaintiffs could not overcome its 

arbitration and class action waiver agreements, that Plaintiffs failed to state a claim, and that 

Plaintiffs could not get a class certified. Plaintiffs countered all these points. My office also 

conducted numerous telephonic conferences with the parties to further discuss their respective 

positions. I found these mediation statements and follow-up discussions to be extremely valuable 

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in helping me understand the relative merits of each party’s positions, and to identify the issues 

that were likely to serve as the primary drivers and obstacles to achieving a settlement. 

9. Because the parties to the second mediation submitted their mediation statements 

and arguments in the context of a confidential mediation process pursuant to Federal Rule of Civil 

Procedure 408, I cannot reveal their content. I can say, however, that the arguments and positions 

asserted by all involved were the product of much hard work, and they were complex and highly 

adversarial. After reviewing the written mediation statements, I believed that the negotiation would 

be a difficult and adversarial process through which all involved would hold strong to their 

convictions that they had the better legal and substantive arguments, and that a resolution without 

further litigation or trial was by no means certain. 

10. On August 13, the second group of Plaintiffs’ counsel, together with Defendants’ 

counsel, participated in a twelve-hour mediation. At approximately 9 p.m. Pacific that night, the 

parties agreed to the amount of the settlement fund and executed a binding Term Sheet. It was 

apparent to me from the mediation session that both sides possessed strong, non-frivolous 

arguments, and that neither side was assured of victory if the case was litigated to final judgment. 

11. The settlement was the product of extensive arm’s-length negotiations. There was 

no collusion whatsoever in reaching the terms of the settlement. I believe it was in the best interests 

of all parties and the Class that they that they agree upon the settlement now before the Court. 

12. The settlement obtained is particularly fair, adequate and reasonable under the 

circumstances of this case because it provides a very substantial recovery for the Class, especially 

when measured against the significant obstacles standing in the way of achieving a resolution of 

Plaintiffs’ claims. 

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13. Based upon my experience in this case and other complex data privacy class actions 

as a lawyer, mediator and former District Judge, as well as my involvement with the parties and 

counsel in this case, I am of the opinion that the settlement amount of $92 million is a fair and 

reasonable result. This case also presented numerous appellate issues for both sides, which could 

have caused this case to drag on for years, with a verdict providing no certainty or finality to either 

side. The settlement here ensures that the Class will receive certain money without being exposed 

to the risks of trial and appeal. Further, at the time of the second mediation, Defendants were in a 

particularly precarious position, as they were the subject of President Trump’s Executive Orders 

that potentially could have banned them from the United States, making any recovery much more 

difficult if not impossible. Plaintiffs’ counsel took advantage of this opportunity and settled at what 

I believe to be a most opportune juncture. 

14. In sum, based on my experience as a litigator, a former U.S. District Judge and a 

mediator, I believe that this settlement represents a reasonable and fair outcome given the Parties’ 

strongly held positions throughout the months of negotiations. As such, I strongly support the 

approval of the settlement in all respects. 

I declare under penalty of perjury under the laws of the United States that the foregoing 

facts are true and correct and that this declaration was executed this 23rd day of February 2021. 

 

 ________________________________ 

LAYN R. PHILLIPS 

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