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 KATRINA CARROLL IN SUPPORT OF 

APPLICATION FOR APPOINTMENT AS CO-LEAD COUNSEL 

KATRINA CARROLL declares as follows: 

Introduction 

1. I submit this Declaration in support of my joint Leadership Application with 

Jonathan Jagher, which seeks our appointment as Co-Lead Counsel and proposes a Steering 

Committee and Liaison Counsel pursuant to the Case Management Orders entered by this Court. 

Mr. Jagher and I, with the support of the vast majority of cases and their counsel comprising the 

MDL, believe that it is in the class’ best interest to have us lead this litigation. 

2. Under our leadership, and with an inclusive approach, the Settling Parties (defined 

below) reached an excellent settlement for the class at a particularly opportune time. We also meet 

all the Rule 23(g) criteria in spades. Importantly, appointing both Mr. Jagher and me as Co-Lead 

Counsel will ensure that the settlement is documented and proposed for approval by this Court 

under Rule 23, despite the unusual and tumultuous circumstances surrounding the company and 

this litigation. If we are appointed and able to present the settlement in the normal course, all 

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2 

parties will have an ample opportunity to weigh in on the settlement terms. Such discussions can 

and properly should take place after Defendants agree to make the settlement public, on or before 

October 26, 2020, as we have proposed to the Court. There will be no prejudice to any party if 

the Court adopts our suggested approach, which is consistent with Rule 23 and will even permit 

issues to be vetted and “front loaded” at or before preliminary approval, before this Court makes 

any decision concerning whether the settlement justifies sending notice to the class. 

3. To date, Settling Plaintiffs have not taken an opportunity to set forth all of the 

relevant facts pertaining to the manner in which the Settlement was achieved, the cooperation and 

collaboration of nearly all counsel in that endeavor, and the antagonistic role played by NonSettling Plaintiffs1

 who, at nearly every juncture, chose their self-interest in controlling this 

litigation over the best interests of the class. Once the record is set straight, it will become clear 

that, contrary to Non-Settling Plaintiffs’ inaccurate representations, the settlement was not reached 

by “hand-picked” counsel (actually, it was reached by an agreed-upon delegation of a large 

coalition of firms who all actively participated in the process.) And the attorneys who now 

complain that they were “excluded” acted repeatedly to the detriment of the class, refused to 

collaborate with other counsel, tried to prevent the mediation from ever occurring, and 

intentionally withheld information that could have benefitted the class. When the Court considers 

all these facts, we hope it will find that the settlement should proceed in its normal course through 

1

 Non-Settling Plaintiffs’ group consists only of counsel who filed cases in the Northern District 

of California and no counsel from any other district in the MDL. This group is essentially Mr. 

Rhow and his executive committee from the Northern District of California, along with two 

firms who supported Mr. Rhow and his committee during the leadership proceedings in that case. 

These two firms also separately applied for leadership positions, which Judge Koh denied in 

favor of Mr. Rhow’s application. Non-Settling Plaintiffs’ group now also includes Illinois-based 

proposed Liaison Counsel, who we believe were recently retained by Mr. Rhow’s group after the 

MDL transfer order was issued on August 4, 2020 and one additional firm from the Northern 

District of California, which also applied for leadership in that court. 

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counsel responsible for achieving it. We believe this measured approach is in keeping with Rule 

23 and in the best interests of the class. 

My Experience, Qualifications and Ability to Serve as Co-Lead Counsel in this Matter 

4. I am the managing partner of the Chicago, Illinois office of Carlson Lynch LLP, a 

nationally recognized litigation boutique specializing in the prosecution of plaintiff-side class 

actions. I have personal knowledge of the facts stated in this Declaration and describe all of my 

collaborative efforts in this case for the benefit of this Court. 

5. By way of my background, I have litigated complex matters and class actions for 

twenty years and have devoted my career to representing plaintiffs in class cases like this one. In 

total, I have litigated over one hundred class actions and have obtained recoveries in excess of $1 

billion in all types of cases, including consumer, securities and antitrust cases. I have been 

recognized as one of the top 25 class action lawyers in the State of Illinois by the National Trial 

Lawyers Association and have been named multiple times as a Super Lawyer. 

6. Outside the courtroom, I am an active participant and panelist at symposiums and 

conferences related to class action topics and the promotion of women attorneys in the field. In 

April 2018, I was honored to appear as a panelist at “May it Please the Court: Symposium on 

Women Lawyers in the Courtroom,” a prestigious event sponsored by the United States District 

Court for the Northern District of Illinois and the Chicago Bar Association. I currently serve on 

the Law360 Products Lability Litigation Editorial Advisory Board and am also an active member 

of the Advisory Board of Loyola University School of Law’s Institute for Consumer and Antitrust 

Studies. My personal curriculum vitae is attached hereto as Exhibit A and my firm’s biography 

is attached hereto as Exhibit B. 

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7. I have significant experience litigating biometric privacy matters arising from the 

collection and use of data by technology companies. I have litigated some of the earliest biometric 

privacy cases on record in our District, including cases against Google and Shutterfly that have 

shaped BIPA jurisprudence across the country. See e.g., Norberg v. Shutterfly, Inc., 152 F. Supp. 

3d 1103 (N.D. Ill. 2015) (finding jurisdiction against defendant and that plaintiff stated a claim 

under the Illinois Biometric Information Privacy Act); Rivera v. Google Inc., 238 F. Supp. 3d 

1088, 1095-96 (N.D. Ill. 2017) (interpreting meaning of “biometric identifier” within the meaning 

of BIPA). 

8. I am currently litigating other BIPA matters in various courts against some of the 

largest companies in the world, including IBM, Amazon, Google, Microsoft and Facebook. See 

e.g., Vance v. International Business Machines Corp., No. 20cv577 (N.D. Ill.) (Carlson Lynch 

appointed as Co-Lead Counsel); Wise v. Ring LLC, No. 20-cv-1298 (W.D. Wash.); Vance, et al. 

v. Amazon.com, Inc., No.: 2:20-cv-01084 (W.D. Wash.); Vance, et al. v. Google, LLC, No.: 5:20-

cv-04696 (N.D. Cal.); Vance, et al. v. Microsoft Corporation, No.: 2:20-cv-01082 (W.D. Wash.); 

Whalen v. Facebook, Inc., No. 20-CIV-03346 (Sup. Ct. San Mateo County, CA). 

9. I have been personally appointed to leadership positions in numerous complex class 

cases, including privacy-related actions like this one. Some of my personal appointments as CoLead Counsel include: 

 Albrecht v Oasis Power, LLC, No. 1:18-cv-01061 (N.D. Ill.) (TCPA class action; class 

settlement approved). 

 Lewert v. PF Chang’s China Bistro, Inc., No. 1:14-cv-04787 (N.D. Ill.): (one of the first 

data breach cases on record with landmark ruling in the Seventh Circuit on Article III 

standing, hailed by Law360 as one of the “top privacy cases” of 2016). 

 Salam v. Lifewatch, Inc., No. 1:13-cv-09305 (N.D. Ill.): (plaintiffs prevailed on contested 

class certification motion and matter is currently being actively litigated). 

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 Bakov v. Consolidated World Travel Inc., No. 1:15-cv-02980 (N.D. Ill.) (TCPA litigation 

proceeding on behalf of a certified class of consumers). 

 Mednick v. Precor, Inc., No. 14-cv-03624 (N.D. Ill.) (in products liability class action, 

plaintiffs obtained class certification for a multi-state consumer class and the case 

ultimately settled on a class-wide basis). 

 Bishop et al. v. Behr Process Corp. et al., No. 1:17-cv-4464 (N.D. Ill.): (national products 

liability class action matter relating to defective deck paint resulting in substantial 

settlement). 

10. I also have extensive MDL experience and have been personally appointed to serve 

in leadership in several national matters. For instance, I successfully served as co-lead counsel in 

In Re: Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation, 1:15-cv1364 (N.D. Ill.), a sprawling products liability MDL class action which ended in a favorable class 

settlement. During the final approval hearing, the Honorable Amy J. St. Eve, now a sitting Justice 

of the Seventh Circuit, praised my professionalism and that of defense counsel (Lori Lightfoot, 

who was then a partner at Mayer Brown) as a “model I wish all lawyers would follow.” My other 

personal MDL appointments include In re Community Health Systems, Inc., Customer Data 

Security Breach Litigation, 2:15-cv-00222, MDL 2595 (N.D. Ala.) (member of the plaintiffs’ 

steering committee in consolidated multidistrict litigation stemming from data breach involving 

one of the nation’s largest hospital chains) and In re Ashley Madison Customer Data Security 

Breach Litig., MDL No. 2669 (E.D. Mo.) (member of executive committee in well-publicized data 

breach relating to social media company; significant class settlement for $11.2 million was 

approved in November 2017). 

11. Apart from my own appointments, my firm has additional and far-ranging MDL 

experience in some of the country’s largest privacy and data breach matters. Just some of the 

MDL cases where my firm served or serves in the leadership include: In re Equifax, Inc. Customer 

Data Security Breach Litig., MDL 2800 (N.D. Ga.); In re Marriott International Customer Data 

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Security Breach Litigation, MDL No. 2879 (D. MD.). In re Home Depot Customer Data Breach 

Litig., 1:14-md-02583, MDL 2583 (N.D. Ga.). In re Target Corporation Customer Data Breach 

Litig., 0:14-md-02522, MDL 2522 (D. Minn.) and In re Vizio, Inc. Consumer Privacy Litig., MDL 

No. 2693 (C.D. Cal.). 

12. My firm and I have the expertise, resources, and personnel necessary to prosecute 

this action to the fullest extent necessary. I am experienced, committed, and able to devote my full 

attention to this matter, as I have already demonstrated in litigating this case since its inception. 

13. I have a proven track record of working collaboratively with other attorneys, both 

on the plaintiffs’ side and the defense side. I am familiar with and have longstanding, productive 

working relationships with scores of plaintiffs’ attorneys across the country. In fact, this case in 

and of itself is a testament to my ability to work collaboratively and bring groups of counsel 

together to achieve results for the benefit of our collective clients and members of putative classes. 

The Settlement and Current Procedural Status 

14. In this case, I am counsel of record for Plaintiff E.R. and I filed the first related 

action in this District on May 8, 2020 (E.R. v. TikTok, Inc. et al., 1:20-cv-02810 (N.D. Ill.)). Mr. 

Jagher is counsel of record for Plaintiff D.M. and filed a related action shortly thereafter on May 

13, 2020 (D.M. v. TikTok, Inc. et al., 1:20-cv-02884 (N.D. Ill.)). Together, and at all times since 

we filed our cases, Mr. Jagher and I have worked to organize and coordinate all of the actions 

involved in this MDL for the benefit of all parties, the putative class and this Court. 

15. When Defendants presented an opportunity for class-wide settlement, Mr. Jagher 

and I immediately galvanized an inclusive process to pursue that opportunity. Most of the other 

plaintiffs’ counsel joined in this process, which culminated in a settlement in principle on August 

13, 2020. 

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16. As part of our organizational process, sixteen firms2 (representing all the districts 

involved in the MDL) came together and collaborated with us in the months leading up to the 

mediation. These sixteen firms, sacrificing their own self-interests for the good of the group, 

agreed on a delegation3 of seven representatives to attend the session. 

17. Mr. Jagher and I traveled to California during the pandemic to appear in person for 

the extensive, hard-fought, arms-length negotiations conducted for over twelve hours with the 

Honorable Layn Phillips, one of the country’s most prominent mediators. The settlement is the 

product of input from a top expert, the majority of the plaintiffs in the MDL and experienced 

counsel including firms who have litigated the earliest BIPA claims on record and other large firms 

in the plaintiffs’ class action bar, and it capitalizes on the entire team’s collective knowledge and 

experience. 

18. The settlement was made possible through the collaborative and inclusive process 

Mr. Jagher and I organized. At all times, we acted in the best interest of the class and, because of 

our leadership, nearly all counsel in this MDL are currently working together vigorously, 

efficiently and expeditiously to finalize the relevant documents. We look forward to presenting 

the settlement to this Court for its consideration. 

2

 The sixteen firms who came together and prepared for mediation are: Carlson Lynch LLP; 

Freed Kanner London & Millen LLC; Cafferty Clobes Meriwether & Sprengel LLP; Sauder 

Schelkopf LLP; Gordon Law Offices, Ltd.; Stephan Zouras, LLP; Erik H. Langeland P.C.; 

Tostrud Law Group, P.C.; Consumer Protection Legal, LLC; Scott+Scott Attorneys at Law LLP; 

Baird Law Firm; Wood Law Firm, LLC; Ahdoot & Wolfson, PC; Susman Godfrey LLP; Fegan 

Scott, LLC and Foote, Mielke, Chavez & O’Neil, LLC. 

3

 The seven delegates who participated in the mediation were: me, Mr. Jagher, Robert Foote 

(Foote, Mielke, Chavez & O’Neil, LLC); Michael Gervais (Susman Godfrey LLP); Joseph 

Guglielmo (Scott+Scott Attorneys at Law LLP); Tina Wolfson (Ahdoot & Wolfson, PC) and 

Tiffany Yiatras (Consumer Protection Legal, LLC). 

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19. It bears mentioning that, at the time of the settlement, this MDL was in a state of 

procedural limbo: the administrative transfer of the related actions had not been fully effectuated. 

For over two months before we announced the settlement, we repeatedly advised the Court in 

several joint status reports (filed on June 3, 2020, June 25, 2020 and July 10, 2020) that we were 

proceeding to mediation, alongside counsel from the other Districts involved in the MDL. [E.R. v. 

TikTok, No. 20-cv-02810 (the “E.R. Docket”), at ECF Nos. 27, 40, 44]. Because of this Court’s 

prior Order of June 18, 2020 in E.R., which required the parties in that case to report on the status 

of settlement [Id., at ECF No. 37], we filed a joint status report with Defendants on August 16, 

2020 in the E.R. Docket [ECF No. 51]. Out of an abundance of caution, we also filed our report 

in the “MDL” docket in this District, which had been assigned a docket number with no further 

action taken by the Court. 

20. The day after we filed our status report, the Clerk of Court proceeded to effectuate 

the administrative transfer of cases comprising the MDL. That same day, the Court entered CMO 

No. 1. [Docket No. 20-cv-4699 (MDL 2948) (the “MDL Docket”), at ECF No. 4]. 

21. Upon entry of CMO No. 1, and in light of the fact of settlement, Mr. Jagher and I 

met and conferred with the various Interim Counsel concerning an efficient path forward. In 

recognition of our work and efforts at collaboration throughout the history of this case and long 

before the MDL ruling, the majority of counsel, including all counsel for all Settling Plaintiffs and 

other Interim Counsel representing actions filed in the Northern District of California, submitted 

a proposed Case Management Schedule to the Court on August 21, 2020. [Id., at ECF No. 6]. 

Under our proposed schedule, the Settling Plaintiffs propose to file a motion for preliminary 

approval on or before October 26, 2020. 

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22. Since reaching the settlement, we reached consensus with an additional six 

independent firms with cases in the Northern District of California. These independent firms now 

support our appointment as Co-Lead Counsel and we expect that they will support the settlement 

after it is publicly disclosed. 4 Because of this consensus, the “Settling Plaintiffs” group should 

ultimately expand to include the vast majority of cases and counsel in the MDL. 

23. With respect to disclosure of the settlement terms, Settling Plaintiffs’ position is 

and always has been that the settlement negotiations were to be inclusive and that the terms should 

be disclosed to all litigants, including Non-Settling Plaintiffs, who we had repeatedly invited to 

participate in the mediation.5 After reaching the settlement, we spent substantial time and effort 

trying to convince Defendants to make those terms available. We also waived mediation privilege 

weeks ago for purposes of disclosure to all counsel and are in favor of Defendants doing the same 

at any time they deem appropriate. 

24. Settling Plaintiffs understand that Defendants continue to oppose disclosure of the 

settlement terms at this juncture for a variety of reasons (including the pending Presidential 

Executive Orders and ongoing acquisition discussions). To further the interests of transparency 

and recognizing that the Court is a fiduciary of the class, Settling Plaintiffs suggested to Defendants 

that they allow us to present the settlement for in camera review, prior to the filing of a motion for 

preliminary approval. Defendants are considering our proposal. 

4

 These additional firms are: Girard Sharp LLP; Chimicles Schwartz Kriner & Donaldson-Smith 

LLP; Law Office of Francis J. Flynn, Jr.; Onderlaw LLC; Bottini & Bottini, Inc.; and Cotchett, 

Pitre & McCarthy, LLP. 

5

 Due to TikTok’s articulated need for strict secrecy, only the seven delegates who attended the 

mediation have seen the settlement terms. The broader group has agreed to respect 

confidentiality pending public disclosure. 

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25. All along, Settling Plaintiffs have acted to provide full transparency so long as the 

best interests of the class (namely, protecting the settlement) are met. We are confident that the 

settlement is an excellent outcome. We are also confident that the process and circumstances 

surrounding the mediation were inclusive and fair and that we did everything possible to secure 

the best result for the class. 

26. For these reasons, Settling Plaintiffs never objected to Non-Settling Plaintiffs’ 

receipt of the settlement information or their ability to be heard, at or before preliminary approval, 

regarding any issue concerning the settlement. In fact, we welcome any effort (including effort by 

this Court and input of Non-Settling Plaintiffs) to ensure the best settlement possible, after the 

settlement is publicly disclosed. 

Litigation History: the Northern District of Illinois Consolidated Action and the MDL 

27. As we previously advised the Court in three status reports filed in E.R., the history 

leading up to the settlement began long before the MDL Panel issued its order on August 4, 2020. 

As the Court evaluates the leadership applications, I respectfully ask that this history be taken into 

consideration. 

28. While Settling Plaintiffs have made every attempt to coordinate with and include 

Non-Settling Plaintiffs, and will work with whomever the Court appoints, the Court should 

consider the effects of a “forced marriage” of leadership between Settling Plaintiffs and NonSettling Plaintiffs on the settlement approval process. Settling Plaintiffs are concerned that, in 

light of Non-Settling Plaintiffs’ repeated conduct aimed at undermining the settlement efforts for 

personal gain and at the class’s peril, any such “forced marriage” order could derail the settlement 

entirely and irreparably harm the class. 

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29. As the Court knows, with minor variation, the actions comprising this MDL are 

nearly all putative class actions arising under the Illinois Biometric Identification Privacy Act 

(“BIPA”), 740 ILCS §14/1, et seq., against Defendants, TikTok Inc. and ByteDance Technology 

Inc. 

30. Related cases in various districts ultimately became the subject of a May 15, 2020 

MDL petition filed by counsel from the Southern District of Illinois seeking transfer and 

coordination in the Southern District of Illinois, or in the alternative, in this Court. 

31. As it does when any motion to transfer and centralize is filed, the MDL Panel’s 

initial briefing order asked the various counsel involved “to pursue alternatives to centralization 

(including, but not limited to, engaging in informal coordination of discovery and scheduling, and 

seeking Section 1404 transfer of one or more of the subject cases.).” [MDL Docket, MDL No. 

2948, at ECF No. 4]. Mr. Jagher and I did exactly that. In contrast, Non-Settling Plaintiffs (then 

consisting of Hong counsel) embarked on a path designed to “squander [this Court’s] resources 

(and those of the parties)” during the pendency of the MDL without any attendant benefit to the 

class. [E.R. Docket, at ECF No. 46, at 6-7]. 

32. Because only three districts were involved at the time the MDL petition was filed 

in mid-May, I believed that the related cases could be coordinated informally to obviate any need 

for centralization. I believed the appropriate first step in that process was to organize all the cases 

in our District. To that end, I persuaded counsel in the Illinois cases that the best course, given 

that the MDL was pending, was to swiftly self-organize. As a result of my efforts, we immediately 

began coordinating our cases with speed and efficiency. In fact, in its transfer order, the MDL 

Panel lauded our progress and praised this Court for its role and active management in our process. 

[MDL Docket, ECF No. 2 at 1-2]. 

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33. The driving force behind our success was the effective inclusion of all Districts. 

Recognizing the fact that the cases were subject to the MDL, that a leadership process in our case 

would not bind cases outside of our District and that the proceedings would properly be re-opened 

after an MDL decision, I suggested (with the agreement of all counsel) that the Court appoint me 

as interim lead counsel in our consolidated action solely during the pendency of the MDL, without 

prejudicing the rights of anyone to seek leadership post-MDL. [E.R. Docket, at ECF No. 12]. The 

Court agreed. [Id., at ECF No. 18]. 

34. Because of my efforts to convince counsel to take MDL leadership off the table 

until appropriate leadership proceedings could be had in the ultimate transferee court, all Plaintiffs’ 

counsel in this District coordinated seamlessly and worked toward the common goal of litigating 

in the most efficient way possible.6 Together, we filed a Consolidated Complaint, served 

discovery, worked with our expert and prepared for the mediation, which ultimately resulted in the 

excellent settlement which we would like to present to this Court. We did all this alongside nearly 

all counsel involved in all cases comprising the MDL, and despite substantial interference in the 

process by Non-Settling Plaintiffs’ counsel, who repeatedly rejected our invitations to participate 

and took many steps that could have eliminated a critical settlement opportunity for the class. 

Non-Settling Plaintiffs’ Northern District of California Litigation 

35. For context, some history of the Non-Settling Plaintiffs’ California litigation is 

important. Non-Settling Plaintiffs’ “first filed” case of all related cases is Hong v. ByteDance, Inc. 

et al., 5:19-cv-07792-LHK, filed in the Northern District of California in November of 2019. Hong

was not the first BIPA case against TikTok. As originally pled, Hong was not a BIPA case at all, 

6

 To preserve judicial resources and avoid unnecessary litigation, we also chose not to intervene 

in the Northern District of California case to pursue leadership since leadership would need to be 

revisited after the MDL Panel’s ruling. 

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13 

was not brought on behalf of any Illinois plaintiffs, and did not seek to represent a putative class 

of any Illinois residents. While Hong was subsequently amended to add a BIPA claim (after I 

filed E.R. in this District), Hong pled a broad panoply of California causes of action. 

36. Before any BIPA claims were included and any MDL was created, Non-Settling 

Plaintiffs (then, solely Hong counsel) and defense counsel selected Judge Layn Phillips and 

proceeded to mediation on April 6, 2020. That effort was unsuccessful.7 

37. In any event, despite the fact that Hong was filed in November 2019 and counsel 

proceeded to an unsuccessful mediation, no significant litigation progress occurred: no dispositive 

motions were ever filed and no discovery was ever produced (though requests were served). Judge 

Rosenstengel in the Southern District of Illinois actually recognized Hong’s lack of any significant 

advancement, stating that “the Northern District of California does not in fact appear to have taken 

any significant action in regard to BIPA claims against the TikTok defendants.” A.S. v. TikTok, 

Inc. et al., 3:20-cv-00457-NJR (S.D. Ill.), ECF No. 40 at 3-4. 

38. Non-Settling Plaintiffs’ lack of progress in Hong stands in contrast to the 

substantial progress we made in this Court and outside of it. While we were making strides, NonSettling Plaintiffs refused to contribute altogether and instead focused on positing defense 

arguments that TikTok publicly waived (advocating that this federal Court sitting in Illinois has 

no personal jurisdiction with regard to TikTok’s BIPA violations) and making ad-hominem attacks 

7

 To date, Non-Settling Plaintiffs’ counsel refuse to waive privilege and presumably no one else 

knows what happened at that mediation. For their part, Defendants have waived privilege, yet 

Non-Settling Plaintiffs still refuse to share this information. We simply cannot understand how 

Non-Settling Plaintiffs can “demand” to know confidential settlement terms while, at the same 

time, withholding information about their mediation. 

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in public filings before the MDL panel and the Illinois and California federal courts in an effort to 

secure control of the case.8 

Non-Settling Plaintiffs’ Intervention 

39. Rather than focusing on a collaborative effort to benefit the class, Non-Settling 

Plaintiffs (originally through Hong counsel) opted to intervene in both this District and the 

Southern District of Illinois (curiously, they did not pursue intervention in the Central District of 

California, making their attempt to transfer the actions to the Northern District of California an 

incomplete endeavor). The attempted intervention was motivated by Non-Settling Plaintiffs’ 

counsel’s self-interest, to the detriment of the Illinois class, because there is no other reasonable 

explanation for a plaintiff to assert jurisdictional and venue arguments belonging to Defendants, 

particularly arguments that Defendants had never raised. 

40. The attempted intervention was even more unreasonable given that Defendants 

publicly admitted that such arguments were moot. See Joint Response to Motion to Intervene 

(setting forth Defendants’ position that “the personal jurisdiction issues raised by the putative 

plaintiffs in intervention will likewise be moot if the cases are centralized by the J.P.M.L.”) [E.R.

Docket, ECF No. 40 at 19]. In denying intervention, this Court specifically recognized 

Defendants’ position. [E.R. Docket, ECF. No. 46 at 8]. But Non-Settling Plaintiffs refused to 

8

 Non-Settling Plaintiffs, specifically Hong counsel, told this Court that we “cooked up” a “hasty 

reverse auction ... in an attempt to bolster [our] own leadership position.” [E.R. Docket, at ECF 

No. 39, at 3.] They also resorted to pejorative characterizations of our mediation in their leadership 

effort in front of Judge Koh stating, “[w]e declined the mediation to protect the class from a reverse 

auction established to serve Illinois counsel’s attempt to move all the cases to Illinois despite 

jurisdictional barriers in Illinois that places these cases in a poor bargaining position.” (emphasis 

in original). In re: TikTok, Inc. Privacy Litig., 5:19-cv-07792 (N.D. Cal.), ECF No. 80 at 2. Of 

course, all this angry rhetoric is false since we suggested to this Court that it take no action on 

leadership until after the MDL ruling. And in any event, these attacks served no purpose since our 

case was not before Judge Koh. We chose not to intervene in the California matter, in fact, to 

preserve judicial resources because the MDL was pending. 

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15 

withdraw their intervention motions after it became plainly obvious that their duplicative transfer 

motions were not at all appropriate given the MDL and the position publicly taken by Defendants. 

41. Just like their publicly filed pleadings before the MDL Panel, in this Court and in 

California, Non-Settling Plaintiffs’ counsel’s intervention briefs were replete with personal 

attacks. I attempted to correct several of these blatant misrepresentations in the intervention 

briefing. [E.R. Docket, ECF No. 40 (Status Report) at ¶¶ 6-9]. One such misrepresentation was an 

accusation that Mr. Jagher and I colluded with Defendants in filing a joint response to the 

intervention motion, even though we were specifically ordered by the Court to do so and the 

response contained separate sections setting forth our respective positions. [Id., ¶ 7]. 

42. We took particular issue with Non-Settling Plaintiffs’ false narrative that we were 

organizing some “reverse auction.” In fact, we acted specifically to prevent a “reverse auction” 

by immediately involving all counsel, including Non-Settling Plaintiffs. “Reverse auctions” occur 

when a settlement is reached in secret, where plaintiffs in one action settle unilaterally with a 

defendant to the detriment of the class. We did exactly the opposite: we invited all counsel to 

participate and were completely transparent. [ECF No. 26 , at 1, fn1]. For this reason, any notion 

that we were “hand-picked” by Defendants to sell out the class is not credible.9 

43. In any event, Non-Settling Plaintiffs’ unnecessary attempts at intervention both 

failed. Chief Judge Rosenstengel of the Southern District of Illinois first denied Non-Settling 

Plaintiffs’ motion to intervene on July 1, 2020 and this Court agreed shortly thereafter. [E.R. v. 

TikTok, ECF No. 46]. In denying intervention, this Court was unpersuaded by Non-Settling 

9

 Non-Settling Plaintiffs’ statements that we were planning a “reverse auction” are even more 

troubling, since, at the same time, they were still refusing to share information concerning their 

first mediation. By withholding this information, Non-Settling Plaintiffs precluded us from 

beginning our negotiation where they left off. If they had simply provided it, they would have 

ensured that there would never be a reverse auction. 

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Plaintiffs’ jurisdictional arguments and saw no need to “squander its resources (and those of the 

parties) to address this issue before the MDL Panel rules.” [Id., at 6-7]. “More fundamentally,” 

this Court observed, intervention would “distort lawyers’ incentives” during the pendency of an 

MDL, since “the filing of an MDL petition would act like a starter’s pistol” and trigger a “precentralization scramble” by lawyers to dismiss each other’s cases before the Panel rules. [Id. at 

7]. 

44. The “pre-centralization scramble” Non-Settling Plaintiffs initiated resulted in zero 

benefit to the class and nothing but wasted litigation effort by the parties and multiple courts. 

Chronology of Our Attempts at Inclusion and Non-Settling Plaintiffs’ Interference 

45. The “pre-centralization scramble” was not the only action taken by Non-Settling 

Plaintiffs that was adverse to the class. All the relevant history is recounted here and in a series 

of emails exchanged between June 3, 2020 and August 25, 2020. I also succinctly summarized 

this history in an email I circulated on August 19, 2020 (9:55 a.m.) among all Interim Counsel 

after the Court entered CMO No. 1. The relevant emails are organized by date and attached as 

Exhibit C hereto. 

46. When Defendants expressed an interest in mediation in late May and early June, 

Mr. Jagher and I organized counsel to propose a fair way to proceed collectively. Given NonSettling Plaintiffs’ (then only Hong counsel) and Defendants’ prior selection of Judge Phillips and 

his knowledge and familiarity with the facts of the case, we believed it best to propose that the 

next round of mediation also proceed with Judge Phillips. Our goal was to capitalize and build 

upon whatever prior efforts were already made. 

47. Recognizing the MDL Panel’s pronouncement that we should coordinate with 

counsel in the related actions, and also our fiduciary duty to explore the possibility of settlement 

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for the class, on June 3, 2020, Mr. Jagher and I immediately notified all plaintiffs’ counsel and 

invited them to participate in the mediation. See Exhibit C, at 1-2 (my email to all counsel on 

6/3/20 (8:59 a.m.)). To ensure that the process was fair to everyone and all districts were involved, 

I proposed as follows: 

Recognizing the various interests and cases on file in multiple districts, we sincerely 

hope you will participate in the mediation. To maximize the benefit to the class and 

efficiency, we propose to form a mediation team consisting of two attorneys 

representing the ND. Ill. cases, two attorneys representing the ND. Cal. cases, and 

one attorney each for the SD. Ill. and CD. Cal. cases. Certainly, we will welcome 

input from all counsel and will schedule an all‐counsel strategy session to make 

sure everyone has a voice. 

Id. 

48. At this time, Non-Settling Plaintiffs had just filed their intervention papers in our 

case. To avoid further motion practice on intervention and in an attempt to foster collaboration, I 

advised this Court promptly that we were proceeding to mediation with an inclusive approach and 

that “[i]f settlement talks are ultimately successful, the litigation may be streamlined on consent 

of all parties, obviating the need for further motion practice in multiple courts.” [E.R. Docket,

ECF No. 27 (June 3, 2020 Joint Status Report), at ¶12]. 

49. In response to our invitation to participate alongside all other counsel, and despite 

having mediated already with Judge Phillips, Non-Settling Plaintiffs immediately declined. See

Exhibit C, at 12-13 (Masters response email of 6/3/20 (8:27 p.m.)). The refusal was based 

ostensibly on the desire to await Judge Koh’s appointment of interim lead counsel in the 

consolidated Northern District of California cases. Non-Settling Plaintiffs’ counsel further 

indicated to all counsel that they would continue their pursuit of intervention in our case for 

purposes of dismissal and transfer. Id. 

50. The next day, June 4, 2020, we again reached out to all counsel seeking full 

participation and collaboration. See id., at 11-12 (my email to all counsel of 6/4/2020 (8:45 a.m.)). 

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In keeping with our fiduciary duty and because we did not want to forego an opportunity to pursue 

meaningful relief for the class, we even suggested that all counsel in the Northern District of 

California cases could self‐order for purposes of mediation or else pursue expedited leadership 

proceedings before Judge Koh. Id. Non-Settling Plaintiffs declined to pursue either of our 

suggestions for a logical path forward. Instead, Non-Settling Plaintiffs dug into their refusal to 

collaborate with other counsel. 

51. On June 8, 2020, we held an organizational conference call among all counsel to 

discuss the mediation, our negotiation strategy, and how best to proceed. Representatives from all 

districts participated on that call. Non-Settling Plaintiffs declined. 

52. Also on June 8, 2020, in our preparations for mediation, we asked Non-Settling 

Plaintiffs to provide us with the information exchanged during the prior mediation with Judge 

Phillips. In response, Non-Settling Plaintiffs accused us of improperly rushing to mediation and 

being unprepared. See id., at 16-18 (Jagher email of 6/8/2020 (8:23 a.m.); Masters response of 

6/9/2020 (8:45 a.m.)). Non-Settling Plaintiffs refused to share any information whatsoever, even 

though Defendants were then willing to waive the mediation privilege (and have since expressly 

waived that privilege). The decision to withhold information was shockingly at odds with the best 

interests of the class and was driven by Non-Settling Plaintiffs’ desire to maintain their perceived 

proprietary and self-serving interest over the history of the negotiations with Defendants. 

53. On June 12, 2020, we learned that certain counsel who supported Mr. Rhow in the 

leadership proceedings before Judge Koh (who had been invited to participate in the mediation 

along with everyone else) contacted defense counsel insisting that TikTok pull out of the mediation 

based on the false “reverse auction” narrative. Though unclear whether these lawyers acted at the 

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specific direction of Mr. Rhow, these lawyers affirmatively attempted to thwart a settlement 

opportunity for the class. 

54. On June 16, 2020, we reiterated our request that Non-Settling Plaintiffs’ counsel 

reveal what happened at the prior mediation so that we could be as informed as possible. They 

again refused. 

55. Instead of collaborating with the rest of plaintiffs’ counsel, an overture which 

should have been given appropriate consideration in light of Defendants’ recently surfaced 

political issues and acute business challenges, Non-Settling Plaintiffs opted to focus their efforts 

on intervention and waging a “turf war.” 

56. Non-Settling Plaintiffs’ attempts at intervention were denied by the Southern 

District of Illinois and this Court on July 1, 2020 and July 13, 2020, respectively. Still recognizing 

the pendency of the MDL, I again attempted to bridge the gap with Non-Settling Plaintiffs. 

57. On July 17, 2020, following Mr. Rhow’s appointment by Judge Koh as interim lead 

counsel in the Northern District of California case, I told Mr. Rhow that I continued to desire a 

productive collaboration and once more invited participation from his group. Mr. Rhow responded 

the same day and reiterated Non-Settling Plaintiffs’ prior refusal to participate in the mediation. 

Exhibit C, at 20-21 (my email of 7/17/20 (9:35 a.m.); Rhow response email of 7/17/20 (12:50 

p.m.)). 

58. On July 30, 2020, the MDL Panel heard oral argument. A copy of the transcript is 

attached hereto as Exhibit D. During that argument, I focused my presentation on our 

collaborative efforts and preparation for mediation, in support of my request for transfer to the 

Northern District of Illinois. The panel asked no questions of me. The Panel did, however, inquire 

into Non-Settling Plaintiffs’ refusal to participate in an upcoming mediation, especially since it 

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was to be conducted by the same mediator they had previously used. [Ex. D, 10:13-20]. Mr. 

Rhow did not have any credible justification to explain this refusal. He simply confirmed that 

Non-Settling Plaintiffs would not participate, again falsely painting the mediation as a “reverse 

auction.” [Id., 10:21-11:19]. Non-Settling Plaintiffs did not reconsider this refusal in the days 

following the argument. 

59. On August 4, 2020, just days after the argument, and with my having fully apprised 

the Panel of the mediation and progress made by nearly all counsel, the MDL panel issued its 

transfer order sending the cases to this Court. [MDL Docket, ECF No. 2]. 

60. Meanwhile, in our late July and early August discussions with the mediator’s office, 

we learned that Non-Settling Plaintiffs contacted the mediator without our prior knowledge or 

authorization, or Defendants’ knowledge or authorization, to attempt to discourage Judge Phillips 

from proceeding with the mediation. Non-Settling Plaintiffs again attempted to place their own 

selfish desire to control this litigation ahead of the class. 

61. If Non-Settling Plaintiffs’ efforts had been successful at that time, they would have 

robbed the class of an opportunity to negotiate with Defendants at a key time, given the political 

situation surrounding TikTok and its discussions with potential acquirors. Rather than reacting to 

this opportunity for the class, Non-Settling Plaintiffs focused on jockeying for control and were 

willing to sacrifice the class to do so. 

Non-Settling Plaintiffs’ Dramatic Reversal and Willingness to be Included 

62. After close of business on the day the MDL Panel issued its August 4, 2020 ruling 

sending the cases to Northern District of Illinois, Non-Settling Plaintiffs suddenly reached out to 

us, indicating a newfound willingness to be included in the mediation. See Exhibit C, at 23-24 

(Rhow email 8/4/20 (8:35 p.m.); my response 8/5/20 (10:01 a.m.)). At this time, it became even 

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more apparent that Non-Settling Plaintiffs’ prior refusal to attend mediation was motivated solely 

by self-interest and their (ultimately incorrect) calculation that the MDL Panel was sure to send 

the cases to the Northern District of California. If that had happened, by their estimation, they 

would have had the sole ability to control the litigation to the exclusion of every other plaintiffs’ 

counsel. Other than this, what could possibly be the reason for such a reversal in position with 

respect to the same mediation? Certainly nothing had happened which would have alleviated their 

prior stated concerns about the “reverse auction.” Indeed, all that had changed was the MDL 

Panel’s decision not to transfer the case to their preferred venue. 

63. Nevertheless, in the interest of getting consensus behind the settlement in the event 

one was reached, I responded to Mr. Rhow [id.] and, on August 5, 2020, we had our first of many 

conversations concerning the mediation. 

64. During those conversations, Mr. Rhow twice advised that he would be sharing NonSettling Plaintiffs’ information concerning the prior mediation that we previously requested on 

several occasions. On August 6, 2020 (after our long conversation on August 5th), Mr. Rhow told 

us he was “getting together the prior mediation materials and should have a package together 

soon.” See id., at 26 (Rhow email 8/6/20 (1:26 p.m.)). We did not receive the promised package. 

65. Three days later, on August 9, 2020 (the Sunday before the mediation), Mr. Rhow 

again wrote that he was preparing a “package” that would include “prior briefs, a summary of what 

the last term sheet was and also a draft consolidated complaint” that could be used as “leverage” 

during the negotiations. See id., at 28 (Rhow email 8/9/20 (1:13 p.m.)). We (and the class) never 

received any of this. Given our numerous overtures at cooperation, there was simply no good 

reason for Mr. Rhow to keep his group’s analysis of the case a secret or to withhold information 

that, in Mr. Rhow’s words, could have given the class more “leverage.” 

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66. Nevertheless, recognizing the importance of an inclusive approach and 

notwithstanding that we had already formed an army of sixteen firms and set delegates, we 

specifically reserved two in-person spots (of only four available due to COVID-19 restrictions) for 

Mr. Rhow and Megan Jones (Non-Settling Plaintiffs’ designated “settlement” counsel pursuant to 

Judge Koh’s order), and instructed other counsel who had made arrangements to attend in person 

to cancel their travel plans and appear remotely. 

67. We soon learned, however, that Defendants would not permit Mr. Rhow’s 

attendance at the mediation because Defendants perceived a conflict of interest involving the Bird 

Marella law firm (Mr. Rhow’s firm). 

68. Learning this, we spent substantial time and effort (including hours of telephone 

calls between Mr. Jagher, Ms. Jones, Mr. Rhow and myself, together with hours of telephone calls 

with defense counsel) in the nine days preceding the mediation attempting to resolve the dispute 

between the Bird Marella law firm and Defendants. In these conversations, we actively implored 

Defendants to permit Mr. Rhow’s attendance and suggested ways in which Defendants’ concerns 

could be alleviated.10 

69. On August 11-12, 2020, we did our best to assist Mr. Rhow in resolving his alleged 

conflict, suggesting several possible avenues that Non-Settling Plaintiffs could explore with 

defense counsel, including sequestering Mr. Rhow during technical discussions regarding the 

10 Two days before the mediation, when I was already on my way to California, certain counsel 

from the Northern District of California action who had declined our invitation and refused to 

participate for months suddenly expressed interest and demanded a “seat at the table.” Both of 

these firms had supported Mr. Rhow’s slate but separately applied for leadership positions, which 

Judge Koh denied. In deference to Judge Koh’s order, which expressly ordered that no counsel 

could perform any work without Mr. Rhow’s authorization, I asked Mr. Rhow whether he would 

allow these lawyers to participate. On August 12, 2020, Mr. Rhow confirmed via email that no 

counsel from the Northern District of California other than himself and Ms. Jones could be 

involved. See Exhibit C, at 30-31 (Rhow email of 8/12/20 (12:24 a.m.)). 

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functionality of the TikTok app and/or some type of declaration or additional confidentiality 

agreement by Mr. Rhow and his firm to allay Defendants’ concerns. One of our other suggestions 

was to use Judge Phillips to assist the parties in working through these issues separately, the day 

before the mediation. See id., at 36 (my email to defense counsel of 8/12/20 (3:24 p.m.), forwarded 

to Mr. Rhow). While we are not fully aware of all the discussions between Defendants and NonSettling Plaintiffs, we know that Non-Settling Plaintiffs did not pursue all of these options. Nor 

would Mr. Rhow agree that Ms. Jones could simply participate in his stead, something that 

Defendants agreed to permit. Since we were supportive of their participation, any one of these 

alternatives could have assured Non-Settling Plaintiffs’ inclusion at the mediation. 

70. It appears that, rather than even attempting to pursue any of our suggested paths to 

inclusion, Non-Settling Parties embraced their own exclusion. They even went as far as to suggest 

that we boycott the mediation. As counsel with a duty to our clients and as selected mediation 

delegates on behalf of the majority of the other related actions, we simply could not allow a 

potential conflict involving one firm to eliminate the opportunity for the class. 

71. On the day before the mediation, I again asked Mr. Rhow whether Non-Settling 

Plaintiffs would waive confidentiality regarding the prior mediation so that plaintiffs would not be 

forced to bid against themselves. See id., at 35 (my 8/12/2020 email to Rhow (6:28 p.m.)). Mr. 

Rhow again refused. The only conclusion to be drawn was that Mr. Rhow’s offer to give us the 

information was conditioned on his personal attendance. It is difficult to interpret this behavior as 

anything other than elevating counsel’s own interests ahead of the class. 

72. To date, Non-Settling Plaintiffs still have not shared what happened at their earlier 

mediation, even though Defendants expressly consented and even though we repeatedly asked for 

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it. This is precisely the type of self-dealing and in-fighting among Plaintiffs’ counsel that routinely 

draws criticism of the plaintiff class action bar. 

73. As this recitation makes clear, we have from the very outset attempted to include 

all counsel, including Non-Settling Plaintiffs, in the mediation process because it was and is our 

belief that collaboration among all counsel is in the class’ interest. Conversely, and to the detriment 

of the class, Non-Settling Plaintiffs refused our numerous attempts at cooperation, implored 

defense counsel not to mediate with us at all, interfered with the integrity of the settlement process 

by contacting the mediator to prevent the mediation from ever happening, and then appeared to be 

interested in cooperating with us only to ultimately withhold information from the class. This 

conduct is contrary to the generally recognized qualities which should be displayed by counsel 

who wish to be appointed to leadership. It also shows that Non-Settling Plaintiffs’ counsel’s 

interests may not be aligned with the class when the settlement is ultimately presented to the Court. 

74. After the mediation concluded, and after a tentative settlement was reached, we 

advised Non-Settling Plaintiffs that we continue to recognize the value of full participation and 

welcome the opportunity to address any concerns they may have about the settlement once the 

settlement is made public and as we move for preliminary approval. See id., at 40-43 (my 8/19/20 

(9:55 a.m.) email to all counsel). 

75. Since reaching the settlement, we have had many further discussions with NonSettling Plaintiffs, have continually advocated to Defendants that the settlement terms be shared, 

and specifically waived the mediation privilege. See id., at 47-48 (my 8/25/2020 (10:34 a.m.) 

email to defense counsel, copying all counsel, and confirming waiver of mediation privilege). 

76. Though we have repeatedly encouraged TikTok to disclose the terms of the 

settlement, we cannot force them to do so. Our goal is to preserve what we believe is an excellent 

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settlement for the class, and we hope that the Court considers the consequences of appointing any 

of Non-Settling Plaintiffs’ counsel to the leadership team in this case. 

Non-Settling Plaintiffs’ Post-Mediation “Amended” Complaint 

77. Post-mediation, Non-Settling Plaintiffs began crafting a new narrative. What they 

initially portrayed as a “reverse auction” quickly morphed into a story of “exclusion.” Non-Settling 

Plaintiffs fail to advise the Court that we continually created and endorsed paths to their inclusion

and they rejected every single one of those paths. For instance, what could have been the 

conceivable downside of Ms. Jones’s attendance at the mediation, even if Mr. Rhow could not be 

there? At the very least, Ms. Jones could have sat in the room and presented Non-Settling 

Plaintiffs’ views on the additional claims they had analyzed and were already contemplating. Of 

course, Ms. Jones and Mr. Rhow could also have simply briefed us on this information instead of 

withholding it altogether. If, as they now claim, they desired to preserve these additional claims 

for the class, Ms. Jones and Mr. Rhow easily could have done so. Instead, they made a calculated 

decision to withhold information from the mediating parties, quickly claimed their “exclusion,” 

and rushed to file an unauthorized “consolidated complaint” the very next day after the mediation. 

78. On August 14, 2020, the day after the mediation, and consistent with their past 

strategy of “squandering” resources, Non-Settling Plaintiffs (without any prior discussion with the 

other 25 law firms in this MDL) filed an amended complaint in the docket of their transferred case 

with no apparent purpose other than to gain some tactical advantage in their never-ending quest to 

control this case. [In re: Tiktok, Inc. Privacy Litig., 1:20-cv-4723 (N.D. Ill.), ECF No. 89]. 

79. The new complaint piggybacks on the Northern District of California Hong

complaint’s broad cornucopia of claims and adds a claim under the Video Privacy Protection Act, 

18 U.S.C. § 2710 et seq. (“VPPA”). Non-Settling Plaintiffs’ unilateral filing of an even more 

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expansive complaint, without input from anyone outside their group, is just another example of an 

attempt to squander the parties’ and this Court’s resources. 

80. Non-Settling Plaintiffs’ hasty (and retaliatory) filing also seems inconsistent with 

this Court’s prior observations that broad pleadings which assert potentially uncertifiable claims 

may prejudice plaintiffs and the class: 

As a fallback position, the Hong Plaintiffs boast that their complaint 

provides the best vehicle for TikTok users to obtain relief. It is true that 

the Hong complaint raises more claims, names more defendants, and 

seeks certification of a broader class than the consolidated complaint. 

[citation omitted]. If anything, however, those differences reinforce this 

Court’s reluctance to permit intervention. At worst, the Hong Plaintiffs’ 

attempt to represent an expansive class may delay or even defeat class 

certification. At a minimum, bringing more claims against more 

defendants promises to widen the scope of discovery and prolong this 

litigation. See Coburn v. DaimlerChrysler Servs. N. Am., L.L.C., 218 

F.R.D. 607, 610 (N.D. Ill. 2003). It follows that intervention would 

prejudice the existing Plaintiffs. 

[E.R. Docket, ECF. No. 46 at 7-8.] 

81. Despite Your Honor’s clear pronouncement, and in an attempt to manufacture an 

“emergency,” Non-Settling Plaintiffs then filed a motion asserting that their new VPPA claim is 

worth “billions of dollars in statutory damages” and they should have had an opportunity to present 

that claim at mediation. [MDL Docket, ECF No. 11, at 6]. Of course, Non-Settling Plaintiffs could 

have freely shared their supposed insight at any point prior to the mediation, as they were 

repeatedly invited to do but continually refused. 

82. Regardless, the VPPA claim was never an “emergency” and any notion that the 

highly experienced counsel who mediated this case were unaware of a potential VPPA claim is 

not true. While we requested (and it would have been helpful) to receive Non-Settling Plaintiffs’ 

analysis prior to the mediation, we did not need it for purposes of mediation because we had 

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already conducted our own analysis.11 Without revealing confidential communications covered by 

mediation privilege, Settling Plaintiffs can simply say that the claim was considered and 

specifically discussed. 

The “Third” Mediation 

83. After the settlement was announced, we spent hours (again) coordinating with NonSettling Plaintiffs and advocating that the settlement terms be made available. During this time, 

Non-Settling Plaintiffs and Defendants explored ways in which Non-Settling Plaintiffs could be 

apprised of the settlement in advance of its public disclosure. 

84. Unbeknownst to me, on Sunday, August 23rd, Mr. Rhow filed a “Joint Status Report 

by Defendants and Undersigned Plaintiffs” at approximately 10:40 p.m. Central advising this 

Court that Defendants and Non-Settling Plaintiffs “have agreed to mediate issues between those 

parties no later than August 29, 2020.” They requested that this Court “take no action on any 

status report or proposed case management schedule previously submitted to the Court (ECF Nos. 

1, 5, 6) until after the mediation occurs.” [MDL Docket, ECF No. 7]. Not only was I not given a 

chance to review this report prior to its filing, and despite my constant efforts to include Mr. Rhow 

and his group in our mediation, neither he nor any of the Non-Settling Plaintiffs apprised me of 

this “third mediation” at all. 

85. On Monday, August 24, 2020, we had several conversations with Non-Settling 

Plaintiffs regarding their “third mediation,” and soon learned that they perceived this mediation to 

11 Non-Settling Plaintiffs did not mastermind any VPPA strategy. To the contrary, the VPPA is a 

focal point in T.K. et. al. v. Bytedance Technology Co. Ltd. et. al., 1:19-cv-07915 (N.D. Ill.), an 

unrelated privacy class action outside of the MDL where Judge Blakey is considering whether to 

finally approve a settlement. T.K. was filed over 8 months before Non-Settling Plaintiffs 

amended their complaint to include this claim. The merits of the VPPA claim, including its 

factual underpinnings, are currently the subject of ongoing debate in T.K. Settling Plaintiffs are 

well-aware of that debate and have closely followed all relevant developments in this other case. 

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present some new opportunity to negotiate additional relief for the class. We soon learned, 

however, that this was absolutely not the purpose of this “mediation.” 

86. Because Settling Plaintiffs believe that the parties’ communications about this postsettlement “mediation” are subject to Rule 408 and disclosure is wholly improper, Settling 

Plaintiffs are not in a position to provide further details. What we can say, however, is that this ex 

post facto settlement discussion was never intended to be a true mediation. Defendants did not 

extend any invitation to Non-Settling Plaintiffs to re-write or re-negotiate any aspect of the 

settlement. Defendants confirmed this in the “Status Report by Defendants and Designation of 

Defendants’ Lead Counsel” informing the Court that Defendants’ view of the purpose of the “third 

mediation” was not shared by the Non-Settling Plaintiffs. [MDL Docket, ECF No. 8]. Any attempt 

by Non-Settling Plaintiffs to argue that we somehow interfered with an opportunity for the class 

to obtain more relief than we already obtained is simply incorrect. 

87. Of course, if any opportunity exists to better the settlement and achieve greater 

results for the class, we are supportive, and every single action we have taken to date shows that 

our interests are squarely aligned with our clients and the class. 

I declare under penalty of perjury that the foregoing is true and correct. 

Date: September 8, 2020 

 ____________________

Katrina Carroll 

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