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 C 4699 

Judge John Z. Lee 

Magistrate Judge Sunil R. Harjani 

OBJECTION OF DENNIS LITTEKEN 

TO PROPOSED CLASS ACTION SETTLEMENT

I. Introduction

The Court should deny preliminary approval to this hastily drawn up Settlement

Agreement. The parties’ goal of achieving an embarrassingly low 1.5% claims rate is the result 

of a proposed notice plan that violates both Rule 23 and Due Process. Indeed, the parties concede 

that they will not provide individual direct notice to over 70% of the class (the bare minimum) 

and instead try to sell the Court on accepting a flashy-sounding publication media plan to satisfy 

due process. But providing the required individual notice here is easy: the class are all users of an 

app that can be used to notify them of the Settlement Agreement and the companies that class 

members have to download the app from have the entire class’s emails and other contact 

information. The reason for this inadequate notice plan and low claims estimate is obvious: the 

national class would receive a paltry $3 and the Illinois subclass would get less than $20 if 

claims rates begin to approach 20%. 

And while $92 million is a lot of money, the Plaintiffs’ submissions do not justify the 

steep discount on the valuable statutory claims possessed by the nearly 90-million-member class. 

The process of reaching the settlement also provides evidence that proposed settlement class 

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15-CV-03747-JD, 2021 WL 757025 (N.D. Cal. Feb. 26, 2021) (granting final settlement

approval). The firm is responsible for the first-ever BIPA settlement, see Sekura v. L.A. Tan

Enterprises, Inc., 2015-CH-16694, and has paved the way to many of the favorable appellate 

decisions for BIPA plaintiffs. Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 

180175 (pre-Rosenbach, holding violation of statute sufficient for plaintiff to be “aggrieved”); 

Rottner v. Palm Beach Tan, Inc., 2019 IL App (1st) 180691-U (violation of statute sufficient to 

claim liquidated damages); McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 

192398. Edelson was also class counsel in several of the VPPA decisions referenced in the 

motion for preliminary approval. The Facebook settlement, at $650 million, is the largest cash 

privacy settlement on record, and the firm also obtained the largest jury verdict in a privacy case, 

see Wakefield v. ViSalus, Inc., No. 15-cv-1857 (D. Or.) ($925 million), and secured the largest 

Telephone Consumer Privacy Act settlement, see Birchmeier v. Caribbean Cruise Line, Inc., No. 

12 C 4069 (N.D. Ill.).1

III. Specific Objections

In amending Rule 23(e) in 2018, the Rules Committee noted that “[t]he decision to give

notice of a proposed settlement to the class is an important event. It should be based on a solid 

record supporting the conclusion that the proposed settlement will likely earn final approval.” 

The amended rule therefore requires front-loaded scrutiny of potential class action settlements to 

identify deficiencies that should be addressed before notice is disseminated. 

1 Edelson PC’s co-counsel in the Birchmeier action is Loevy & Loevy. Edelson PC did not 

coordinate with Loevy & Loevy regarding the objection they filed in this matter, and in fact were 

unaware that a Loevy & Loevy client intended to object to the instant settlement before that

objection was filed on March 1. 

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There are at least two shortcomings in Plaintiffs’ current presentation that require the 

denial of preliminary approval. Objector reserves his rights to make further objections later in the 

approval process should it proceed. 

A. Because it relies on publication notice when direct notice is feasible, the

Notice Plan is deficient.

When a class action is settled, the Court must direct notice to be given to all members of 

the class or proposed settlement class. Fed. R. Civ. P. 23(e). This includes “individual notice to 

all members who can be identified with reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). 

“[I]ndividual notice to identifiable class members is not a discretionary consideration to be 

waived in a particular case. It is, rather, an unambiguous requirement of Rule 23.” Eisen & 

Carlisle v. Jacquelin, 417 U.S. 156, 176 (1974). Here, counsel reports that they will only attempt

direct notice to about one-third of the class. (Dkt. 122-12, ¶ 18.) That is insufficient. 

The best notice practicable here is obvious: Notice through the TikTok app. TikTok users 

already have an “inbox” within the app through which TikTok communicates with users. This 

function can easily be used to send notice to settlement class members. Alternatively, notice 

could be disseminated via a pop-up displayed when TikTok users open the app. TikTok itself 

frequently uses pop-ups when the app is opened to display ads or to make announcements. Either 

form of notice could reach all or substantially all of the proposed settlement class. There is no 

excuse for not using this type of notice in this type of case, unless, of course, the goal is to keep 

the claims rate down. 

In their Motion for Preliminary Approval, Class Counsel highlight the settlement in In re 

Facebook Biometric Information Privacy Litigation, in which the class claimed at a 22% rate. 

(Dkt. 122, at 24.) The principal method of notice there was through channels of communication 

established by Facebook through which Facebook ordinarily communicated with its users. See In 

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re Facebook Biometric Info. Privacy Litig., No. 15-cv-03747-JD, 2020 WL 4818608, at *4 (N.D. 

Cal. Aug. 19, 2020). The court in that case approved such notice over objections by the 

defendant concerning First Amendment or reputational harms, noting that “many cases have held 

that a defendant’s online channels constitute the best practicable notice to individual class 

members.” No. 15-cv-3747, dkt. 404, at 3 (N.D. Cal. May 29, 2018). There is no reason to settle 

for anything short of this type of notice here: TikTok likewise has established channels through 

which it communicates with its users. See Fed. R. Civ. P. 23 – Committee Notes on 2018 

Amendments (describing changes to Rule to encourage notice to be disseminated through 

methods that align with “contemporary communication realities”). The parties provide no reason 

why these channels cannot be used to reach this class.

And even with respect to the claimed direct notice by email, the Plaintiffs’ proposal falls 

woefully short of what the Rule requires. The Motion for Preliminary Approval states, without 

elaboration, that the proposed notice plan “provides individual direct email notice to all 

reasonably identifiable Class Members.” (Dkt. 122, at 46.) But the motion never says who those 

class members are, or what portion of the proposed class they make up. The Weisbrot 

Declaration reports than the settlement administrator expects to receive email addresses for about 

one-third of the class. (Dkt. 122-12, ¶ 18.) But the parties never attempt to explain why this small 

portion of the proposed class is all that is “readily identifiable.” 

There is also nothing in any of the papers filed by the Plaintiffs that suggests that they 

have done or intend to do any work to identify class members. That is unacceptable. Obtaining 

the emails of at least a substantial number of class members would require essentially three 

subpoenas—one to each of the platforms on which the TikTok app can be downloaded (Apple, 

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Google, and Amazon). These platforms have contact information for every member of the 

proposed class. 

Rather than do the work that is required by Rule 23 and Due Process, the preliminary 

approval papers concede that counsel is focused almost exclusively on publication notice, which 

if done at all, should be a backstop to the direct in-app and fulsome email campaign. Counsel 

targets a claims rate of 1.5%–which just so happens to be the claims rate that was achieved using 

exclusively a “state of the art” publication notice campaign in the related matter of T.K. v. 

ByteDance, Inc., No. 19 C 7915 (N.D. Ill.). Rule 23 demands more. This is a case in which most 

or all class members can be easily identified through reasonable effort. Counsel must attempt to 

provide these class members with direct notice. The Court should withhold preliminary approval 

of the settlement until Co-Lead Counsel comes up with a plan to do just that. 

B. The Plaintiffs fail to provide sufficient basis to determine whether the

settlement provides fair and reasonable relief to class members.

A second, equally problematic issue is that the Settlement appears to have been reached 

without any discovery into the strength of the various claims that are alleged in the operative 

complaint, and Co-Lead Counsel provides little information to justify the steep discount 

proposed settlement class members are forced to accept in exchange for a virtually limitless 

release. 

The process by which the settlement was reached raises a number of red flags. First, the 

settlement was negotiated at a mediation which occurred after the JPML’s order centralizing the 

cases in this Court, but before this Court had appointed any leadership structure. And, 

alarmingly, it appears from the reports filed by counsel that Defendants chose which lawyers 

they wanted to negotiate with and excluded the others. (Dkt. 5; see also dkt. 12, at 3.) It is 

beyond doubt that the Defendants did not have the putative class’s best interests at heart when it 

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took that step. See Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 282-83 (7th Cir. 2002) 

(discussing “a ‘reverse auction,’ the practice whereby the defendant in a series of class actions 

picks the most ineffectual class lawyers to negotiate a settlement with in the hope that the district 

court will approve a weak settlement that will preclude other claims against the defendant.”).

Also troubling is that the Motion for Preliminary Approval makes clear that the proposed 

settlement is intended to compromise class members’ claims under the Video Privacy Protection 

Act, 18 U.S.C. § 2710, a statute that permits plaintiffs to recover $2,500 in statutory damages 

(Dkt. 122, at 22-23), and a series of claims under California law, which the Plaintiffs contend 

would apply classwide (id., at 3). But at the time of the August 13, 2020, mediation, only one of 

the complaints filed against the TikTok defendants included a VPPA claim. See No. 20-cv03795, dkt. 1 (N.D. Cal.). Moreover, the lawyer who drafted that complaint is not among the 

leadership in the MDL. The then-non-settling plaintiffs added a VPPA claim to their complaint 

the day after the mediation. See No. 20 C 4723, dkt. 89 (N.D. Ill.). But the operative complaint in 

E.R., the action litigated by the attorney who, according to the Motion for Preliminary Approval,

spearheaded negotiations for the putative settlement class, included only claims under Illinois’s 

Biometric Information Privacy Act. See No. 20 C 2810, dkt. 32. What inquiry into the federal 

and California claims was performed before agreeing to a $92 million fund? None, so far as 

appears from the papers submitted to date. In fact, the impetus for settling the VPPA claim might 

well have been an August 7 status hearing in the T.K. matter, in which an objector in that case 

protested that the settlement there sacrificed that valuable claim for no money at all. See No. 19 

C 7915, dkt. 50, at 1. In other words, Co-Lead Counsel evaluated the VPPA claim in less than a 

week without the benefit of any discovery. 

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Efforts following the decision to create a $92 million fund appear to have been directed 

largely to determining how to divide the pot between class members from Illinois and class 

members not from Illinois. In the end, counsel decided that claiming Illinois class members 

would receive $6 for every dollar received by claiming non-Illinois class members. The basis for 

this division is not explained. The Zouras and Rotter declarations offer the boilerplate line that 

the negotiation process was “informed, fair, and impartial,” but that’s about it. Dkt. 122-11, ¶ 13; 

dkt. 122-10, ¶ 8. 

It seems almost inconceivable that this division can be explained by reference to the 

facts. The proposed nationwide class’s VPPA claim is potentially 2.5x as valuable as the 

proposed subclass’s BIPA claim. The Motion for Preliminary Approval highlights a division of 

authority over whether persistent device identifiers are protected by the VPPA (Dkt. 122, at 22-

23), but that arguably places the claim on equal or stronger footing than the BIPA claim. In fact, 

the court in the Facebook Biometric matter discussed a dearth of authority under BIPA regarding 

arguments very similar to those which counsel reports TikTok would make about the information 

it collects. See 2020 WL 4818608, at *3. 

And the Motion for Preliminary Approval contains almost no discussion at all about the 

California claims that could be litigated by the proposed class. California is unique in that its 

Unfair Competition Law and permits restitution of profits earned through violations of other 

laws. See Le v. Kohl’s Dep’t Stores, Inc., 160 F. Supp. 3d 1096, 1102 (E.D. Wis. 2016). The 

Plaintiffs cite several ways in which TikTok appears to violate the law in order to collect vast 

amounts of information about its users, information it likely then uses to enhance the quality of 

its advertising. Plaintiffs specifically allege violations of the federal Computer Fraud and Abuse 

Act, California’s Comprehensive Data Access and Fraud Act, and California’s False Advertising 

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Law. (Dkt. 114, ¶¶ 338-347, 379-385.) Profits derived from these violations are available as 

restitution in an action under the UCL, as the operative complaint recognizes (e.g., id., ¶ 377), 

and these profits potentially run into the billions. Yet this possible recovery is ignored in 

counsel’s rush to have this settlement approved. Again, it is inconceivable that counsel had 

sufficient information necessary to settle this case when they did, and for the amount they did. 

Or, if they somehow did have sufficient information, that information is not being presented to 

class members. 

Instead of analyzing the strength of their own case, counsel appear to have settled on an 

allocation plan merely by looking at other settlements under the same laws. But this case is not 

other cases. And rather than determining how valuable the claims here were, counsel first settled 

on a $92 million fund and then decided how it would be divided amongst class members. Finally, 

to return to the issues with notice, it appears counsel has retroactively determined that the fund is 

too small and has decided to justify its size by positing class member recoveries with minimal 

claims rates and without deducting fees or administration costs. (See dkt. 122, at 24.) With a 

robust direct notice plan, achieving over a 20% claim rate like the Facebook settlement is 

achievable from an active userbase of a popular app. But as the Motion for Preliminary Approval 

acknowledges, if the proposed class here takes at a rate close to the class in Facebook Biometric, 

class members will receive around $19 (for Illinois subclass members) or $3 (for other class 

members). These amounts represent enormous discounts from available damages, which deserve 

much more thorough explanation than they currently receive in the Plaintiffs’ papers. Certainly, 

Plaintiffs’ attempt to paper over this flaw by proposing a deficient notice plan and hoping for 

minimal class participation cannot substitute for an actual analysis of the risks and potential 

benefits of proceeding with the litigation. 

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In short, the notice plan here is woefully deficient, and counsel hasn’t provided enough 

information to create the type of record that would merit sending notice anyway. The Court 

should deny preliminary approval until the parties pledge to provide direct notice to the proposed 

class and further explain how the present proposed fund is fair and reasonable. 

Date: March 1, 2021 By: Dennis Litteken 

_____________________________ 

A member of the proposed class 

/s/ Jay Edelson 

 One of Mr.Litteken’s Attorneys 

Jay Edelson 

jedelson@edelson.com 

Ryan D. Andrews 

randrews@edelson.com 

J. Eli Wade-Scott

ewadescott@edelson.com

Edelson PC

350 North LaSalle Street, 14th Floor

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Counsel for Objector 

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