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DECLARATION OF EKWAN E. RHOW

IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

I, Ekwan E. Rhow, under oath, declare and state as follows: 

1. I am a principal with Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & 

Rhow, P.C. and one of the court-appointed Co-Lead Counsel. 

2. I submit this declaration in support of the motion for preliminary approval of the 

proposed class action settlement, including the September 4, 2020 Settlement Agreement and 

Release (“Settlement Agreement”) as clarified by Addendum No. 1 to Settlement Agreement and 

Release (“Addendum”) (collectively, “the Settlement”).

3. I, along with members of the court-appointed leadership group, have undertaken 

extensive analyses of the claims and defenses in this case, as well as the underlying facts (as 

probed by our extensive pre-filing investigation, formal discovery, confirmatory discovery, and 

the involvement of highly regarded technical experts and consultants), the benefits conferred by 

the Settlement, and the risks associated with continued litigation. Based on that comprehensive 

assessment, and my experience litigating complex class actions, I believe the Settlement is fair, 

reasonable, and adequate for the Nationwide Class and Illinois Subclass. 

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 

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A. I have significant prior legal experience relevant to this case.

4. Class actions have been a significant area of my 25-plus years of practice. I 

personally have litigated and resolved numerous class actions involving the automotive, 

electronics, telecommunications, financial services and apparel industries with potential 

liabilities ranging from $100 million to $1 billion. Clients of mine in this area include Samsung, 

Hyundai and Vizio. My class action experience also includes serving as lead trial counsel for a 

class of current and former account and sales manager employees of IBM-spinoff Lexmark. We 

prevailed on behalf of plaintiffs and the class in Lexmark after a lengthy trial and again on 

appeal.

5. My firm and I also have substantial experience representing at least a dozen major 

Chinese corporations, as well as Chinese individuals and others doing business in China and the 

United States. I personally have represented numerous Chinese and Asian entities in various 

litigations and international arbitrations, as well as individuals doing business in China. Through 

these varied experiences, I have developed knowledge of the Chinese government and its unique 

relationship with Chinese companies.

6. I also have had a long personal and professional interest in privacy issues 

attendant to new and emerging technologies. My personal interest in data privacy litigation and 

my familiarity with source code arose from two prior copyright infringement actions. I 

represented a start-up Korean company that invented a certain type of keystroke encryption 

security software designed to protect one’s privacy and private data. At trial in one of these 

cases, I cross-examined several witnesses concerning the keystroke encryption technology and 

its source code. On the morning of closing arguments, we reached a favorable settlement 

agreement that resolved the case. The jury was polled and indicated its intent to award damages 

in the eight figures. As a result of these lawsuits involving data privacy issues, I developed 

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personal relationships with executives and technical teams who focus on this area. Those 

relationships have led to my litigating other matters touching on data privacy, including other 

class actions on behalf of U.S. and Asia-based companies.

7. I have substantial experience in litigating cutting-edge complex civil matters and 

leading the teams of lawyers that handle them. In over 25 years of practice, following my 

graduation from Stanford University and Harvard Law School, I have tried over 40 cases as lead 

counsel to a final verdict or award, and have litigated to resolution numerous other complex civil 

cases. I am a Fellow of the American College of Trial Lawyers, I have been named by 

Benchmark Litigation as one of the top 20 trial lawyers in California and one of the top 100 trial 

lawyers in the United States, and I have been recognized by Chambers & Partners as a “trial 

expert” who is often called upon to “undertake high-profile work” and “bet-the-firm litigation.”

B. My team and I performed substantial work developing this case 

prior to the September 2020 leadership appointment. 

8. Beginning in 2018, before the Congressional investigations of TikTok became 

trending news, my colleague and Senior Counsel Marc Masters and I began to suspect the 

existence of, and initiated research on, privacy issues relating to a number of smartphone 

applications, including TikTok and its predecessor Musical.ly. This research, including technical 

expert investigation, led me and Mr. Masters to suspect the app was misappropriating private and 

personally-identifiable user data and transferring it to servers in China.

9. We continued this internal investigation, but when it became clear the issues and 

the potential class action might have nationwide and even global implications, we decided a 

broader coalition of lawyers would be necessary to address the full scope of any violations of 

law. That coalition would need to cooperate, leverage resources, and develop a comprehensive 

complaint to remedy the myriad threats to U.S. users our investigation was uncovering.

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10. Accordingly, in early 2019, we reached out to Glancy Prongay & Murray LLP, 

which has a strong national reputation in the class action space. Our collective efforts, which 

started in early 2019, included:

• working closely with highly trained source code experts in analyzing multiple 

versions of the Musical.ly and TikTok apps to uncover (1) the various types of 

private and personally-identifiable data taken by defendants and third-party 

entities whose software development kits and analytic libraries are secretly 

embedded within the apps, and (2) the domestic and foreign destinations of such 

misappropriated data;

• collecting and analyzing numerous iterations of the TikTok terms of use and 

privacy policies upon which defendants might rely for their arbitration and 

consent defenses, and developing the arguments and evidence necessary to 

counter those defenses;

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

investigators in California and in China, an ESI expert, and colleagues with 

Chinese-language skills to translate documents – to better understand defendants’ 

corporate structure, document and data collection and retention systems, internal 

reporting systems, business and advertising models, artificial intelligence and 

patent development programs, and other relevant foreign and domestic activities, 

all of which is relevant to establishing the statutory and common law violations, 

the class’s damages, defendants’ unjust enrichment, and the alter ego defense to 

the foreign defendant companies’ anticipated personal jurisdiction challenge;

• consulting with well-credentialed experts who have conducted original research 

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

and the Chinese government, including Chinese laws requiring corporations to 

share data with the government; and

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• researching numerous legal issues in the data privacy field as they relate to this 

case – such as (1) jurisdiction and venue; (2) potential causes of action; (3) 

standing; (4) damages; (5) injunctive relief; (6) notice and consent, and (7) 

arbitration and class action waivers – to craft our November 27, 2019 complaint

and our May 11, 2020 amended complaint.

11. After the extensive investigation above, my firm, in concert with Glancy Prongay, 

filed the first class action against TikTok in this MDL, and publicly announced our intention to 

amend to add Illinois clients and an Illinois Biometric Information Privacy Act (“BIPA”) claim 

on April 15, 2020.

12. In early 2020, my firm and Glancy Prongay began collaborating with Phillips 

Erlewine Given & Carlin, LLP to develop the factual and legal foundation for a BIPA claim. Our 

three firms invested substantial time and resources to this end, including hiring another highly 

trained source code expert and a biometrics expert with notable experience in BIPA litigation, 

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

13. The 89-page amended Hong complaint was the first-filed BIPA claim against the 

China-based defendants, and the only one served on them prior to this Court’s appointment of 

leadership. It contains extremely thorough BIPA allegations incorporated into the final 

Consolidated Amended Class Action Complaint pending before this Court, focusing not just on 

the app’s conspicuous Augmented Reality (“AR”) features, but also on other allegations of BIPA 

violations (and violations of other statutes and common law), such as:

• the functionality and code of the TikTok app, including (1) content 

recommendations based on TikTok users’ race/ethnicity and age; (2) scans of face 

geometry to determine TikTok users’ age; (3) censoring video content to remove 

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people defendants consider “ugly”; (4) code for deepfake videos; and (5) code for 

age, race/ethnicity and emotion recognition;

• ongoing work in China, including (1) the application of facial recognition 

technology to TikTok users’ videos by highly-trained engineers skilled in 

computer vision, convolutional neural network and machine learning; (2) patent 

applications for face, voice, age, race/ethnicity and emotion recognition 

technologies; and (3) the publicly-known functionality of the Chinese version of 

TikTok (Douyin) that allows its users to perform facial recognition on faces 

selected by such users from other users’ videos; and

• the defendants’ legal and political obligations to accumulate and share vast troves 

of data, including biometrics, in order to assist the Chinese government in 

achieving world dominance in artificial intelligence, and population surveillance 

and control.

14. My firm, along with Glancy Prongay and Phillips Erlewine, participated in an 

April 6, 2020 mediation of the eight original claims and the BIPA claim before former United 

States District Judge Layn Phillips. Preparation for this mediation involved additional technical 

expert work, further developing responses to defendants’ anticipated motions, and formulating 

specific changes to defendants’ business practices that would bring them into compliance with 

applicable law. 

15. My firm and Glancy Prongay also served eight sets of discovery on defendants 

prior to mediation, and defendants responded to each. Additionally, we negotiated and agreed to 

a protective order with defendants to facilitate discovery.

16. Although we had informed the Honorable Lucy H. Koh, before any BIPA cases 

were filed, that we would be amending our complaint to add a BIPA claim, we teamed up with 

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the first firms to file such a claim against the domestic defendants: Hausfeld LLP and Burns 

Charest LLP. After follow-on cases were filed, Judge Koh consolidated all of those cases filed in 

the Northern District of California into In re: TikTok, Inc. Privacy Litigation. 

17. On July 14, 2020, before In re: TikTok, Inc. Privacy Litigation was transferred to 

this Court, I was appointed interim lead counsel pursuant to Fed.R.Civ.P. 23(g). Judge Koh also 

appointed an executive committee consisting of me and one lawyer from each of the other four 

firms in our original group: Glancy Prongay, Phillips Erlewine, Hausfeld, and Burns Charest.

18. I worked closely with this group of experienced lawyers and their colleagues. We 

added a Video Privacy Protection Act claim to an amended complaint based on original work we 

performed with our experts concerning TikTok’s transmission of users’ video viewing histories 

to Facebook and Google. This work was also incorporated into the final Consolidated Amended 

Class Action Complaint pending before this Court.

C. Co-Lead Counsel engaged in months of continued negotiations 

with defense counsel and improved upon an already substantial 

recovery.

19. Co-Lead Counsel gave careful, critical attention to the confirmatory discovery

Plaintiffs obtained as part of the Settlement Agreement. For example, experts and consultants 

that various teams had retained prior to the Court’s leadership appointment were brought 

together to exchange ideas and assess one another’s analyses. The consultants contributed to and 

cross-checked one another’s requests for information made via interrogatories, and jointly 

assessed TikTok’s responses.

20. That feedback led to a candid question-and-answer session between Co-Lead 

Counsel, TikTok’s counsel, and Plaintiffs’ source code expert – in which Plaintiffs’ expert was 

given further free rein to probe TikTok’s relevant technology, source code (both in terms of 

scope and with questions stemming from the expert’s findings), and answers to the deposition on 

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written questions. The parties’ discussions and negotiations regarding confirmatory discovery

continued after that meeting, also contributing to the settlement.

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21. Prior to reaching an agreement on the Addendum, Co-Lead Counsel engaged with 

defense counsel countless times – via phone calls, video conferences, emails, and the exchange 

of revisions and draft documents – in hard-fought, post-mediation negotiations. In many ways, 

that process benefited from the Leadership Group’s varying perspectives and the reality that 

TikTok had to present settlement terms, provide insight into the companies’ operations, and 

engage in confirmatory discovery that met the expectations of a diverse amalgamation of highly 

experienced class action and privacy counsel.

22. Through that process, which took place over six months, Co-Lead Counsel were 

able to improve upon the terms of the original Settlement Agreement with the new Addendum, 

including with respect to the following:

a. Definition of “TikTok.” For example, the Settlement Agreement includes 

an array of injunctive relief regarding TikTok’s treatment of its users’ data, as well as a provision 

requiring TikTok to initiate privacy compliance training. Settlement Agreement, § 6. The 

Leadership Group had questions about the application of the injunctive relief provisions to the 

other defendants, TikTok’s affiliates. Though the Settlement Agreement refers to “TikTok” 

alone, the Addendum redefined “TikTok” to make clear that the injunctive relief applies to all of 

the defendants who were engaged in the operation of the App or who are involved in receiving or 

accessing user data obtained through the App. Addendum, § 2.5 (clarifying that references to 

“TikTok” in the injunctive relief section apply to Defendants’ Released Parties).

b. Definition of “the App.” As another example, the Settlement Agreement 

1 Additional details about confirmatory discovery are provided in the contemporaneously filed declaration 

of Co-Lead Counsel Katrina Carroll.

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includes injunctive relief prohibiting TikTok from “us[ing] the App” to collect, store, and/or 

transmit various categories of private user data – absent disclosure and compliance with all 

applicable laws. Settlement Agreement, § 6.1. It also includes other provisions regarding “the 

App,” including a warranty that TikTok does not use the App to collect biometric information or 

identifiers. Settlement Agreement, § 7.1. The Leadership Group expressed concern regarding

whether the use of the word “App” was an appropriate limitation that would exclude TikTok’s 

conduct after user data left the App and was transmitted to TikTok’s servers. The Addendum 

now makes clear that settlement provisions regarding the “App” go beyond the application’s 

operation on class members’ devices, i.e., “device-side” operations, and extend to “server-side 

operations” as well. Addendum, § 2.1. 

c. The Warranty. The Settlement Agreement includes a “Warranty” 

representing that “TikTok . . . has not used the App to collect biometric identifiers or biometric 

information as defined by the Illinois Biometric Information Privacy Act [BIPA]” and providing 

for confirmatory discovery on that issue. Settlement Agreement, § 7.1. However, the Leadership 

Group questioned, for example, whether TikTok used something other than “the App” (e.g., 

TikTok’s servers) to collect biometric data and whether the parties had a mutual understanding 

as what data qualified as “biometric identifiers or biometric information” under BIPA. The

Addendum addresses those questions and eliminates ambiguity as to the scope of the warranty 

and TikTok’s conduct. The Warranty now represents that many of the features underlying 

Plaintiffs’ claims are non-identifying. In other words, TikTok acknowledges that it engages in 

functions like “image landmarking operations used for special effects and demographic 

classification, speech-to-text operations used to generate text of words spoken in a video, and 

similar non-identifying operations” (which Plaintiffs contend is biometric data)—but, per the 

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warranty, those are not used by TikTok to identify an individual. Id. 

d. Privacy Compliance Training. As another example, the Settlement 

Agreement provides that TikTok will “require newly designed training on compliance with data 

privacy laws and company procedures for all relevant incoming employees and contractors, and 

annual training thereafter.” Settlement Agreement, § 6.3. The Addendum does not leave that 

training program in TikTok’s hands alone. Through the Addendum, the Settlement now requires 

that TikTok hire a third party to review the training program for a period of three years, and to 

provide a written verification of that review to Plaintiffs’ counsel. Addendum, § 4.3.

e. The VPPA. In addition, the Addendum includes provisions prohibiting 

violations of the Video Privacy Protection Act (VPPA), § 4.1.1.

f. Allocation. The Addendum also makes clear that the determination 

regarding how settlement benefits are allocated among classes with divergent interests (i.e., 

among the Nationwide Class and Illinois Subclass) was not bound by the provisions in the 

Settlement Agreement. Addendum, § 3.1. As a result, Co-Lead Counsel appointed independent 

Subclass Counsel to negotiate the plan of allocation. Moreover, this independence eliminated any 

risk that Defendants’ viewpoints as to the strength of Plaintiffs’ claims, or their concerns about 

setting precedent for settlement valuation in other matters, could impact class members’ recovery 

or upend the settlement. 

23. In sum, Co-Lead Counsel conducted six months of thorough, research-intensive

deliberations to assess the case and Settlement terms, and as a result of that process, now present 

to the Court a fair, reasonable, and adequate Settlement which offers the class $92 million and 

valuable injunctive relief.

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I declare that the foregoing is true and correct. 

Dated: February 24, 2021 /s/ Ekwan E. Rhow

Ekwan E. Rhow

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