IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: TIKTOK, INC., CONSUMER 

PRIVACY LITIGATION 

This Document Relates to All Cases

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MDL No. 2948

Master Docket No. 20-cv-4699

Judge John Z. Lee

Magistrate Judge Sunil R. Harjani

 

INITIAL OBJECTIONS TO PLAINTIFFS’ MOTION FOR PRELIMINARY 

APPROVAL OF CLASS ACTION SETTLEMENT BY MARK S., 

AS PARENT AND LEGAL GUARDIAN OF HIS MINOR SON, A.S.

Dated: March 1, 2021

Respectfully submitted,

MARK S.

By: /s/ Scott R. Drury

SCOTT R. DRURY

Mike Kanovitz

Scott R. Drury

LOEVY & LOEVY

311 N. Aberdeen, 3rd Floor

Chicago, Illinois 60607

(312) 243-5900

drury@loevy.com

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Pursuant to Fed. R. Civ. P. 23(e)(5), Mark S., as parent and legal guardian of his minor 

son, A.S., objects to Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement (the 

“motion”) (Dkt. 122) because the proposed settlement is unfair, unreasonable and inadequate. 

INTRODUCTION

Notwithstanding what facially appears to be a large settlement value – $92 million – the 

Agreement1 suffers from numerous defects that preclude its preliminary approval. Specifically: 

• The Agreement does not account for serious conflicts between minor class members, 

on the one hand, and Nationwide Class members and Illinois Subclass members, on the 

other, arising out of: (a) the minors’ abilities to disaffirm any arbitration agreement or 

class action waiver; and (b) TikTok’s statutory obligation to delete data collected about 

them;

• the proposed settlement value is unfair, unreasonable and inadequate and is far below 

the net expected value of continued litigation, see Reynolds v. Beneficial Nat’l Bank, 

288 F.3d 277, 284-85 (7th Cir. 2002);

• the proposed Notice Plan is defective in that it: (a) fails to provide notice to the class 

members via the TikTok App; (b) fails to set forth the estimated claim value; and (c) is 

designed to suppress the claims and objections rates; and

• the proposed release is overly broad and requires class members to release pending 

claims in T.K. v. ByteDance Technology Co., Ltd. (“T.K.”), No. 19-cv-7915 (N.D. Ill.).

Moreover, the Agreement is tainted due to the failure of TikTok’s counsel to disclose the 

T.K. matter to the Joint Panel on Multidistrict Litigation (“JPML”), which, at minimum, was a tagalong action and the first-filed case against TikTok in the Northern District of Illinois. After a 

lengthy hearing on Mark S.’s objections to a proposed settlement in T.K. that concluded on August

7, 2020 and demonstrated the value of class members’ claims exceeded $200 million, TikTok 

attended the August 13, 2020 mediation in the above-captioned matter (the “MDL”) motivated to 

1 Capitalized terms have the same meaning set forth in the Settlement Agreement and Release that was 

attached as Exhibit A to the Motion (Dkt. 122-1).

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settle. Notably, the Agreement requires class members in T.K. to release their valuable claims in 

T.K.

To avoid the waste of moving forward with the defective Agreement, the Court should 

deny the motion.2

SUPPLEMENTAL FACTS

Mark S. sets forth facts here that supplement the facts set forth in Plaintiffs’ motion and 

which he believes provide a necessary foundation for his objections.

TikTok’s Large Child Userbase 

The TikTok App was launched in 2017.3 At the time, it competed with a similar app called 

Musical.ly.4 TikTok then bought Musical.ly and merged it into TikTok.5 Musical’ly’s CEO, Alex 

Zhu, because the chief executive of TikTok.6

During a December 2016 interview, Zhu, stated that “a lot of [Musical’ly’s] users, 

especially top users, they’re under 13.”7 He further acknowledged that children lied about their 

2 Plaintiffs filed their lengthy motion and proposed Settlement Agreement on February 25, 2021. Since that 

time Mark S.’s counsel have diligently worked to identify the defects in the Agreement prior to the 

scheduled March 2, 2021 hearing. In hopes of having additional time to complete a more thorough analysis, 

Mark S.’s counsel requested that Plaintiffs’ counsel agree to strike the scheduled hearing date and request 

that the Court schedule a status the week of March 15, 2021. See Exhibit 1 (email chain). Plaintiffs’ counsel 

refused but indicated they were open to answering questions. See id. However, the first date they offered to 

have a discussion was March 4, 2021, despite Mark S.’s counsel agreeing to be available over the weekend 

of February 27 and 28, 2021. See id. Plaintiffs’ Co-Lead Counsel also refused to talk with Mark S.’s counsel 

regarding the Agreement after their appointment by the Court in September 2020. See Exhibit 2-3 (emails).

Accordingly, and given the overlapping nature of T.K. and the MDL, Mark S. respectfully requests the 

opportunity to supplement this filing after he has the opportunity to more fully review the Agreement. 

3 Jia Talentino, How TikTok Holds Our Attention, The New Yorker (Sept. 23, 2019), 

https://www.newyorker.com/magazine/2019/09/30/how-tiktok-holds-our-attention (last accessed on Mar. 

1, 2021). 4 Id.

5 Id.

6 Sam Shead, TikTok’s Former CEO Is Now Making Investments on Behalf of Parent Company ByteDance, 

CNBC (July 22, 2020), https://www.cnbc.com/2020/07/21/alex-zhu-tiktok-bytedance.html (last accessed on 

Feb. 28, 2021).

7 TechCrunch, From Brush to Canvas with Alex Zhu of Musical.ly, YouTube (Dec. 6, 2016), 

https://www.youtube.com/watch?v=ey15v81pwII (last accessed on Mar. 1, 2021). 

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age in order to use TikTok.8 As of June 2020, 32.5% of TikTok’s active U.S. users were between 

the ages of 10 and 19.

9 Further, according to an August 2020 New York Times article, as of July 

2020, TikTok classified more than a third of its U.S. users as being 14 years old or younger.10 The 

discrepancy between the figures likely results from children who misstate their ages but who 

TikTok has identified as being under 14 years old based on its algorithms. See id.

On February 27, 2019, the FTC filed a federal enforcement action against Musical.ly and 

Musical.ly, Inc. for their multiple violations of the Child Online Privacy Protection Act, 15 U.S.C. 

§ 6501, et seq. (“COPPA”). COPPA empowers parents to maintain control over what information 

is collected about their young children – i.e., children under 13 – online. See id.11 Pursuant to a 

Stipulated Order for Civil Penalties, Permanent Injunction, and Other Relief (the “Stipulated 

Order”), the Musical.ly defendants agreed to a $5.7 million civil penalty and injunctive relief that 

required, inter alia, the deletion of specified personal information of TikTok users. Exhibit 4

(Stipulated Order). A flaw in the Stipulated Order is that it only required deletion of data of users

who self-identified as being under 13. See id. at 9-10. As discussed above, TikTok knew that child 

users identified as being over 13, even though they were not.

The T.K. Action and Mark S.’s Objection

The class action complaint in T.K. was filed against TikTok on December 3, 2019. T.K. 

Dkt. 1. Therein, the plaintiffs sought to certify a National Class, a California Subclass and an 

8 Id.

9 H. Tankovska, Distribution of TikTok Users in the United States as of June 2020, by Age Group, Statista

(Jan. 28, 2021), https://www.statista.com/statistics/1095186/tiktok-us-users-age/ (last accessed on Feb. 28, 

2021). 

10 Raymond Zhong, et al., A Third of TikTok’s U.S. Users May Be 14 or Under, Raising Safety Questions, 

New York Times (Aug. 14, 2020), https://www.nytimes.com/2020/08/14/technology/tiktok-underageusers-ftc.html (last accessed on Feb. 28, 2021). 11 See also Complying with COPPA: Frequently Asked Questions (Mar. 20, 2015), 

https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions

(last accessed on Mar. 1, 2021). 

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Illinois Subclass, consisting of approximately six million children under 13 and their parents 

and/or legal guardians, respectively. Id. ¶ 61, 57, 65.12 The complaint alleged the following five 

causes of action: (a) violation of the VPPA; (b) Intrusion Upon Seclusion; (c) violation of the 

California Constitutional Right to Privacy; (d) violation of the California Consumer Legal 

Remedies Act; and (e) violation of the Illinois Consumer Fraud and Deceptive Business Practices 

Act. Id., ¶¶ 70-110.

On December 5, 2019, the plaintiffs in T.K. sought preliminary approval of a $1.1 million 

settlement on behalf of the following settlement class:

All persons residing in the United States who registered for or used the Musical.ly 

and/or TikTok software application prior to the Effective Date when under the age 

of 13 and their parents and/or legal guardians.

T.K. Dkt. 5. The proposed settlement agreement granted TikTok an extremely broad release that 

required class members to release viable claims that class counsel failed to allege and for which 

class counsel did not seek compensation, including claims under the Illinois Biometric Information 

Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. See T.K. Dkt. 5-1 §§ 2.2, 2.24, 11.1.

Judge Blakey preliminarily approved the settlement. T.K. Dkt. 12-13. In the preliminary 

approval order, Judge Blakey entered a preliminary injunction that prevented settlement class 

members from bringing any new class actions asserting, or amending an existing action to assert,

any “Released Claim,” broadly defined as any claim arising out of or related to the T.K. action or 

the subject matter of the complaint therein. T.K. Dkt. 13 ¶ 16; Dkt. 5-1 § 2.24.

Mark S. objected to the proposed settlement on the grounds that, inter alia, it failed to 

provide adequate relief (18 cents per class member before deducting attorneys’ fees and 

administrator expenses), it failed to provide any injunctive relief, the release was overbroad and 

12 The Class Action Complaint is mis-numbered as follows: 61, 57, 62.

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the notice program was defective. See Dkt. 24. After the parties briefed the objections, Judge 

Blakey held a hearing on August 4 and 7, 2020. During the hearing, Mark S.’s counsel argued that 

the VPPA claim had a potential value of up to $15 billion and a net expected value of $204 million.

Exhibit 5 (8/7/2020 Tr.) at 42:22-44:9.

Mark S.’s counsel further addressed the broad nature of the proposed release that 

extinguished valuable claims, including BIPA, and the confusion caused by that release. Exhibit 6

(8/4/2020 Tr.) at 18:12-23:8. For instance, Mark S.’s counsel explained that the MDL cases did 

not include the T.K. class members until TikTok and the plaintiffs incorrectly said, in response to 

Mark S.’s objections, that the release did not cover BIPA claims. Id. At the hearings, Mark S.’s 

counsel also argued that: (a) the proposed settlement failed to provide injunctive relief, including 

a requirement to delete class members’ data; and (b) TikTok could not enforce the purported 

arbitration agreement against the minor class members. Id. at 9:12-17, 13:8-14. On August 13, 

2020, six days after the hearing concluded, TikTok’s counsel agreed to the $92 million settlement 

before this Court, which seeks to resolve the claims of 89 million people, including VPPA claims, 

and requires the T.K. class members to release their claims. See Dkt. 122-1 § 2.30, 12.1; Dkt. 122-

6 ¶ 22.

Judge Blakey has not yet ruled on Mark S.’s objections. Also pending before Judge Blakey 

is a motion to enforce the above-described preliminary injunction and to consolidate the MDL 

with T.K. or, alternatively, to coordinate the two actions. T.K. Dkt. 52. 

ARGUMENT

I. Legal Standards. 

Approval of a proposed class action settlement “usually involves a two-stage procedure.” 

Manual for Complex Litig., Fourth § 13.14 (2004). During the first stage, a “judge reviews the 

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proposal preliminarily to determine whether it is sufficient to warrant public notice and a hearing.” 

Id. When a court is confronted with a request for settlement-only class certification, it must give 

“undiluted, even heightened, attention” to Rule 23 protections “designed to protect absentees by 

blocking unwarranted or overbroad class definitions.” Amchem Products v. Windsor, 521 U.S. 

591, 620 (1997). Included in this analysis is the adequacy inquiry under Rule 23(a)(4). See id. at 

625. This inquiry “serves to uncover conflicts of interest between named parties and the class they 

seek to represent.” Id. A conflict arises where the interests of those within a single class are not 

aligned. See id. at 626.

II. Conflicts Exist Between Minor Class Members and Nationwide Class and Illinois 

Subclass Members.

Here, the Agreement does not satisfy Rule 23(a)(4)’s adequacy requirement because at 

least two conflicts exist between minor class members and Nationwide Class and Illinois Subclass 

members that necessitate additional subclasses. First, Plaintiffs make clear that the primary 

litigation risk which drives the $92 million figure stems from a purported arbitration agreement 

and class action waiver. See Dkt. 122 at ECF 9-10, 12-13, 29. However, as Plaintiffs concede (see 

id. at ECF 29), the risk faced by minor class members is far different, if it exists at all, than that 

faced by other class members because minors can disaffirm any such agreements. See, e.g.,

Villalobos v. Cicero School Dist. 99, 841 N.E.2d 87, 94 (Ill. App. Ct. 2005) (Illinois law); Cal. 

Family Code § 6710 (California law). Notably, Mark S. raised the same disaffirmance issue in his 

objections in T.K. See T.K. Dkt. 24 at ECF 35; Dkt. 38 at ECF 10; Ex. 6 at 13:8-14. By lumping 

the minor class members in with those class members against whom the arbitration agreement and 

class action wavier are enforceable, Plaintiffs have settled TikTok’s $204 million VPPA liability

as to the minor class, as well as its $48 million BIPA liability as to the minor plaintiffs (a 

conservative estimate of the net expected value of that claim,), at a level far below those figures.

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Second, minors under the age of 13 require unique injunctive relief in order to ensure that 

personal information TikTok unlawfully collected about them is deleted and that they are informed 

of the identities of the entities with whom TikTok shared their data. The Agreement does not 

provide that relief. See Dkt. 122-1 § 6, Addendum § 4. Notably, the Agreement does not require 

any third-party monitoring of any data deletion requirements. See Dkt. 122-1 § 6. Such monitoring 

would be necessary for the children’s data and should be part of the injunctive relief, generally. 

Again, Mark S. raised the need for this type of injunctive relief in his objections in T.K. See Dkt. 

24 at ECF 29; Dkt. 38 at ECF 7-8. 

Neither the motion nor the Agreement accounts for the above-described conflicts. The 

Agreement does not create Nationwide and Illinois subclasses for class members: (a) under the 

age of 18; and (b) under the age of 13. Plaintiffs’ counsel certainly are aware of the need to ensure 

that different groups of class members receive adequate representation, as evidenced by the ten 

negotiating sessions between counsel appointed by Co-Lead Counsel to determine the settlement 

allocation to Nationwide Class and Illinois Subclass members. See Dkt. 122 at ECF 21-22. 

Minor class members required, but did not receive, similar treatment. Had Plaintiffs’ 

counsel properly considered minor class members’ interests, those class members would have 

received a separate, and significantly greater, allocation than Nationwide Class and Illinois 

Subclass members, and the injunctive relief would, at minimum, have included deletion of the 

personal information of minors under the age of 13.13

13 Importantly, the FTC stipulated settlement does not preclude such injunctive relief due to its voluntary 

nature. See In re Vizio, Inc. Cons. Priv. Litig., No. 8:16-ml-2693-JLS-KES, 2017 WL 11420284, at *3-4 

(C.D. Cal. July 25, 2017) (consent decree is akin to voluntary cessation that does not preclude further 

injunctive relief); see also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167, 189 (2000); 

Fraley v. Facebook, 966 F.Supp.2d 939, 945 (N.D. Cal. 2013) (settling parties can craft relief not obtainable 

via a contested judgment). 

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In the motion, Plaintiffs state that TikTok contends that disaffirmance presents 

individualized issues that may preclude class treatment. Dkt. 122 at ECF 13. Not so. The issue of 

disaffirmance can easily by handled via the claims submission process – i.e., the notice packet and 

claim form can and should be drafted to explain this right and allow any person eligible to disaffirm 

his or her agreements with TikTok to affirmatively do so on the form.

Plaintiffs also state that TikTok contends that if minor class members are allowed to 

disaffirm their agreements with TikTok, some of their claims would be released in connection with 

the settlement in T.K. Dkt. 122 at ECF 13. As a threshold matter, no final settlement has been 

approved in T.K. and Judge Blakey has that very objection before him. Further, TikTok’s attempt 

to use T.K. as a sword in the MDL demonstrates the impropriety of its decision to game the JPML 

by not disclosing the related nature of T.K. Having ensured that the JPML would not consolidate 

the MDL cases with T.K., TikTok now seeks to play those cases off of one another to TikTok’s 

benefit. 

III. The Agreement Does Not Reflect the Strength of the Claims as Compared to TikTok’s 

Settlement Offer.

The Seventh Circuit has held the most important factor in determining whether a proposed 

settlement is fair, reasonable and adequate under Rule 23(e)(2) is the strength of the plaintiff’s 

case as compared to the amount of the defendant’s settlement offer. Synfuel Tech., Inc. v. DHL 

Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006). In analyzing the strength of the plaintiff’s 

case, the court should quantify the net expected value of continued litigation. Id. While a court 

cannot do this with a high degree of precision, the court should require the parties to present 

evidence that allows for possible outcomes to be estimated. Id. It follows that, in accordance with 

the policies requiring subclassing, the analysis should be specific to each set of plaintiffs with 

discrete rights. See id.; see Amchem Products, 521 U.S. at 625-26.

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In their 47-page motion, Plaintiffs make no effort to estimate possible outcomes or to 

quantify the net expected value of continued litigation. In Reynolds, the Seventh Circuit set forth 

an easy way to calculate the net expected value of continued litigation, namely, identify four 

possible outcomes (high, medium, low and zero), along with the likelihood of each outcome 

coming to fruition, and combine the results. 288 F.3d at 285. In Reynolds, the Seventh Circuit 

ascribed 0.5% to the high option, 20% to the medium option; 30% to the low option and 49.5% to 

the zero option. Id.

Applying the Seventh Circuit’s formula here reveals that the $92 million settlement value 

is far below the net expected value of continued litigation when only considering the VPPA and 

BIPA claims. The VPPA provides for statutory damages of $2,500. 18 U.S.C. § 2710(c)(2). Based 

on a class size of 89 million (Dkt. 122 at ECF 25), a high recovery would be $222.5 billion. Using 

the numbers set forth in Reynolds, assumed medium and low recoveries could be $200 million and 

$10 million, respectively. Using these conservative numbers and the percentages set forth above, 

the net expected value is $1.15 billion. For BIPA, conservatively assuming statutory damages of 

$1,000 per violation, see 740 ILCS 14/20, a high recovery for the 1.4 million class members would 

be $1.4 billion. Again, assuming medium and low recoveries of $200 million and $10 million, 

respectively, the net expected value would be $50,000,000. Thus, the net estimated value of the 

VPPA and BIPA claims is $1.45 billion – a figure that bears no resemblance to the $92 million 

settlement value.

Examining the anticipated per class member payout further shows that the proposed 

settlement is unfair, unreasonable and inadequate. Assuming Plaintiffs’ counsel is awarded 

attorneys’ fees of 33.33% of the Settlement Fund (see Dkt. 122 at ECF 24) and administrative 

costs of $1.8 million (the costs in the Facebook BIPA case heavily relied on by Plaintiffs) (see 

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Exhibit 7 (Facebook BIPA Decl.) ¶ 22), the amount left for class members is $59,536,400. Based 

on a class size of 89 million, each pro rata share is worth a paltry 67 cents. Using the allocation 

proposed by Plaintiffs,

14 the settlement amounts to $4.02 per Illinois Subclass member, and 60 

cents per National Subclass member. Assuming a vibrant notice program akin to the one mandated 

by the Court in Facebook BIPA that resulted in a 22% claims rate, each Illinois Subclass member 

would receive $18.24, and each National Class member would receive $3.04. As discussed below, 

given the similarities between Facebook and TikTok, a notice plan similar to the one used in 

Facebook BIPA should be utilized here.

Plaintiffs arrive at loftier numbers in their motion only by basing the payout on the full $92 

million and relying on an artificially low claims rate that they seek to achieve through a defective 

Notice Plan. See Dkt. 122 at ECF 32-33; Dkt. 122-12. While Plaintiffs attempt to support their 

predicted claims rate of 1.5% with data gathered by Professor Rubenstein (Dkt. 122 at ECF 33), 

they omit half of the professor’s data. See Exhibit 8 (Prof. Rubenstein Decl. in Facebook BIPA). 

Professor Rubenstein’s data predicts claims rates in two different ways: (1) based on class size; 

and (2) based on size of the claim. See id. ¶ 3. According to the data, a claims rate of 1.5% would 

indicate a very small claim size. See id. ¶ 6. To the extent Plaintiffs publish notice predicting

payments of $383 and $63.89 (Dkt. 122 at ECF 32), Professor Rubenstein’s data would predict 

corresponding claim rates of 12.9% and 8.8%, respectively. Ex. 8 ¶ 6. Of course, at those claim 

rates, the actual payments would be far below $383 and $63.89; they would be $45 and $7.55, 

respectively. Moreover, fixing the glaring omission of failing to provide notice on the App itself, 

as was done in Facebook BIPA, see infra, should drive the claims rate much higher than what is 

14 Mark S. also objects to the Plan of Allocation. According to the Agreement, no confirmatory discovery 

was conducted regarding the validity of the VPPA claim. See Dkt. 122-1 ¶ 7. As such, it is unclear how 

Plaintiffs arrives at the 6:1 allocation plan.

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reflected in Professor Rubenstein’s dataset and result in the payouts at the 22% claims rate 

discussed above. In short, Plaintiffs necessarily rely on an artificially low claims rate in an effort 

to convince the Court that the settlement is fair, reasonable and adequate. It is none of those things.

IV. The Notice Plan Does Not Provide the Best Notice Practicable.

Rule 23(c)(2)(B) requires that upon a court ordering notice under Rule 23(e)(1), “the court 

must direct to class members the best notice that is practicable under the circumstances, including 

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 

23(c)(2)(B). Where individual class members can be identified, they are entitled to individual 

notice even if providing such notice would be very costly. Hughes v. Kore of Ind. Enter., Inc., 731 

F.3d 672, 676-77 (7th Cir. 2013). The “notice requirement of Rule 23 is designed to guaranty that 

those bound by the ruling in a class action were accorded their due process rights to notice and an 

opportunity to be heard.” Chaffee v. A&P Tea Co., Nos. 79 C 2735 and 79 C 3625, 1991 WL 5859, 

at *2 (N.D. Ill. Jan. 16, 1991). 

The Notice Plan suffers from many defects that will suppress the claims rate. The most 

glaring defect is the Plan’s inexplicable failure to provide direct notice via the TikTok App. In 

Facebook BIPA, the Court mandated such notice, and the corresponding claims rate was 22%. See 

Exhibit 9 (Facebook BIPA Final Approval Order) at 4. Importantly, the TikTok App allows for 

“push notifications,” whereby TikTok can provide information to users, and targeted advertising. 

See Exhibit 10 (push notification information); Exhibit 11 (TikTok ad information). The Notice 

Plan contains no discussion of the decision to forego using the App to notify class members of the 

settlement.

Plaintiffs’ chosen, but less effective notice methods, also suffer from defects. For instance, 

according to the Notice Plan, the administrator will have email addresses for one-third of the class 

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members and the media plan will only reach 34.68 million people, many of whom likely will not 

be class members. Dkt. 122-12 ¶¶ 18, 26. The settlement administrator does not state how Plaintiffs

intend to reach all 89 million class members by any form of notice. 

The reason many of the 34.68 million people targeted by the Notice Plan likely will not be 

class members is because the Notice Plan targets the wrong people. As discussed above, TikTok 

has an outsized percentage of young users. Data shows that 62% of TikTok users are between the 

ages of 10 and 29. See Distribution of TikTok Users in the U.S., supra. However, according to the 

Notice Plan, over 53% of the Target Audience is between 18 and 34, with a median age of 33.7.

Dkt. 122-12 ¶ 27. Clearly, the Target Audience’s median age of 33.7 is incorrect.

Instead of trying to contact TikTok users directly through TikTok, the Notice Plan seeks 

to contact them through Facebook, Twitter and Instagram. Dkt. 122-12 ¶ 36. The settlement 

administrator does not state why he chose those social media platforms.

In addition to defects with direct notice and targeting, the proposed notice and claim form 

are also defective. The proposed notice fails to state the estimated amount a claimant will receive. 

See Dkt. 122-4. Rather, it merely states that the settlement provides $92 million to pay class 

members and that Illinois class members may get up to six times some unspecified payment. Dkt. 

122-4 at ECF 2. The Facebook BIPA notice informed claimants that it was estimated they would 

receive between $200 and $400. Exhibit 12 (Facebook BIPA Notice). In order for the notice to 

provide this information, the settlement administrator would have to disclose the anticipated claims 

rate based on his proposed Notice Plan. However, he fails to provide that information.

As discussed below, the Notice also fails to inform T.K. class members that by submitting 

a claim in the MDL, they are releasing their claims in T.K.

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The settlement also prevents claims by persons it seeks to bind. According to the 

Agreement, to submit a claim, a class member must provide to the settlement administrator, inter 

alia, the class member’s full name, address, email address, mobile telephone number for the class 

member’s devices used to access the App, and any and all TikTok user names used by the class 

member. Dkt. 122-1 § 5.3.5. However, a TikTok user is not required to provide a mobile telephone 

number in order to register to use the App. Thus, requiring class members to provide the mobile 

telephone number for the devices used to access the App is deceptive and will suppress the claims 

rate. Notably, the proposed claim form deceptively indicates that providing a mobile telephone 

number and email is optional, a fact that will lure claimants into providing less information than 

is purportedly required to submit a valid claim. See Dkt. 122-5 at ECF 3. A class member should 

only have to provide the minimum information necessary for TikTok to verify that the class 

member is, in fact, in the class. Neither the motion nor the Agreement describes that minimum 

information. 

According to the Agreement, the class action notice will seek to suppress objections by 

mandating unnecessary information. See id. § 11.3. Specifically, similar to the claims process, the 

Agreement states that objectors must provide their mobile telephone number used to access the 

App, even though such information is not required to register to use the App. Id. Thus, persons 

who are disadvantaged by the settlement’s failure to allow claims without the phone number are 

also told they cannot object. Further, the Agreement requires an objector to: (a) name his or her 

counsel and list the number of objections her counsel has filed in the last five years, along with 

information regarding each case in which an objection was submitted; (b) provide the retainer or 

engagement agreement with counsel; and (c) sign the objection under penalty of perjury. Id. Each 

of these requirements serves to suppress and intimidate potential objectors.

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V. The Release Is Overbroad

Plaintiffs contend that the Release is narrowly-tailored. Dkt. 122 at ECF 24. In actuality, 

the Release broadly covers all claims arising from or related to the MDL or the “collection and use 

of any user data . . . that were, could have been, or could be asserted by” class members. Dkt. 122-

1 § 2.30. As such, the Release requires class members to release their claims in T.K., which clearly 

arises out of the collection and use of user data. This is another example of TikTok’s 

gamesmanship in terms of concealing T.K. from the JPML and then trying to avoid the objections 

in that case by obtaining a broad release of those claims in the MDL. The Court should not 

countenance those games. The Court should not permit a release of any claims included in Judge 

Blakey’s preliminary injunction or not asserted in the operative complaint in the MDL. Moreover, 

the Court should not permit the release to cover any of the claims in T.K.

VI. Mark S. Respectfully Suggests that Coordinating the MDL with T.K. Will Be Efficient 

and Conserve Judicial Resources.

Recognizing that the Court has handled complex MDLs in the past and would have no 

issue reviewing and ruling on Plaintiffs’ motion and these objections, Mark S. respectfully 

suggests that the Court coordinate this MDL with T.K. in order to maximize efficiencies and 

conserve judicial resources. Through gamesmanship, TikTok has finagled a way to litigate the 

same claims and the same issues in different courtrooms. When TikTok believed it could resolve 

all claims and obtain a broad release in T.K. for $1.1 million, it pursued that path. However, when 

Mark S. submitted his objections and demonstrated the paltry nature of that settlement, TikTok 

turned its sights to the MDL. Just six days after the hearing on Mark S.’s objections in T.K. in 

which he made clear that the net estimated value of the case was $204 million, TikTok agreed to 

resolve the MDL for $92 million and a broad release that covers the claims in T.K. To ensure there 

Case: 1:20-cv-04699 Document #: 126 Filed: 03/01/21 Page 15 of 17 PageID #:2240
15

was no doubt as to TikTok’s counsel shopping strategy,

15 it also agreed to allow the T.K. class 

members to submit claims in the MDL notwithstanding any release in T.K. See Dkt. 122-1 ¶ 2.4. 

While Mark S. is pleased that his efforts already have vastly increased the amount TikTok 

has agreed to pay to the T.K. class members, for the reasons set forth above, the proposed 

Agreement contains numerous deficiencies. Because the Court in T.K. already has begun 

considering many of the same issues, coordination of the MDL and T.K. likely would conserve 

judicial resources and provide for the most efficient resolution of both matters. Coordination is 

also the solution to TikTok’s gamesmanship in concealing T.K. from the JPML and preventing

any appearance of counsel shopping. 

VII. Mark S. Alternatively Requests that the Court Reschedule the Hearing on the Motion 

and Grant Him the Opportunity to Obtain Discovery into the Agreement.

Mark S. prepared this objection without the benefit of discovery. To the extent the Court 

believes additional information is necessary to rule on his objections, Mark S. requests that the 

Court reschedule the hearing on the motion and grant him the opportunity to conduct discovery 

regarding the Agreement.

CONCLUSION

The Agreement does not satisfy Rule 23(a)(4)’s adequacy requirement and, otherwise, is 

not fair, reasonable and adequate. Moreover, the Notice Plan is deficient and does not accord with 

Due Process. Accordingly, Mark S. respectfully requests that the Court deny the motion and reject 

the proposed Agreement or, alternatively, that the Court reschedule the hearing date on the motion 

and grant Mark S. the opportunity to conduct discovery.

15 In stating that TikTok had a counsel-shopping strategy, neither Mark S. nor his counsel are contending 

that Plaintiffs’ counsel were partners to the strategy. Mark S.’s counsel is co-counsel with Ms. Carroll’s 

firm in numerous BIPA cases throughout the country, including in a case in front of Judge Kocoras. 

Case: 1:20-cv-04699 Document #: 126 Filed: 03/01/21 Page 16 of 17 PageID #:2241
CERTIFICATE OF SERVICE

I, Scott R. Drury, an attorney, hereby certify that, on March 1, 2021, I filed the foregoing 

document using the Court’s CM/ECF system, which effected service on all counsel of record.

/s/ Scott R. Drury

One of the attorneys for Mark S.

Case: 1:20-cv-04699 Document #: 126 Filed: 03/01/21 Page 17 of 17 PageID #:2242