UNITED STATES DISTRICT COURT 

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 

APPLICATION OF ERIC H. GIBBS 

FOR PLAINTIFFS’ STEERING COMMITTEE

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INTRODUCTION 

Plaintiff M.E. is one of more than twenty plaintiffs who have filed class actions 

against TikTok for unlawfully capturing their biometrics and other private data. If these 

claims are successful, TikTok could be required to pay thousands of dollars per user—

an imposing figure that while affordable for a company with TikTok’s wealth, would 

make even the largest company think twice before violating its users’ privacy. 

A deal is already on the table, and that proposed settlement may very well provide 

just the sort of imposing penalty that consumers want to see. It’s too early to say, 

however; so far, only TikTok and a few of the plaintiffs know the terms of the deal—a 

state of affairs that has frustrated other plaintiffs and led to a fair amount of internal 

discord. The Court is thus faced with the prospect of choosing a leadership slate from a 

group of attorneys who, while all highly qualified, are openly at odds with one another. 

Gibbs Law Group and its founding partner, Eric Gibbs, have experience working 

cooperatively with competing factions in similar situations. In the Hyundai & Kia Fuel 

Economy Litigation, MDL. No. 2424 (C.D. Cal.), a small group of plaintiffs announced an 

early settlement that was met with a mix of skepticism and outright hostility from some 

twenty other plaintiffs’ firms who had been left out of the settlement discussions. The 

stakes were high, as Hyundai’s inflated mileage claims had drawn national attention 

and consumers were looking for meaningful relief and effective deterrence. Judge 

George H. Wu appointed Mr. Gibbs to serve as a liaison between the various factions, 

and in that capacity, Mr. Gibbs worked for two years to build consensus when possible, 

present the various viewpoints to Judge Wu for resolution in an orderly and respectful 

fashion when not, and ultimately, gain final approval for a revised settlement valued at 

more than $210 million. At the conclusion of the process, Judge Wu singled out Mr. 

Gibbs for praise, approved Mr. Gibbs and his firm’s fee application in its entirety, and 

joked he would have awarded more. Counsel from the competing factions were 

likewise complimentary, as was Hyundai’s counsel who observed that “Eric was critical 

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in helping preserve order” during the “lengthy and sometimes contentious process.” 

Plaintiff M.E. respectfully submits that Mr. Gibbs’ even-handed approach, 

consensus-building skills, and ability to make tough decisions in a respectful and 

considerate manner could be a real asset to the Plaintiffs’ Steering Committee—just as it 

was in the Hyundai Fuel Economy Litigation. 

ARGUMENT 

When appointing interim lead counsel in a class case, the Federal Rules require 

courts to consider each applicant’s experience, knowledge of the law, resources, and 

work already performed in the case. Fed. R. Civ. P. 23(g). The ultimate aim is to appoint 

the counsel “best able to represent the interest of the class,” and the Court is vested with 

considerable discretion over how best to achieve that goal. Fed. R. Civ. P. 23(g)(2) & 

Adv. Comm. Note to 2003 Amendment. 

Here, the Court has announced that it intends to appoint two Lead Counsel, 

Liaison Counsel, and a five-member Steering Committee. Plaintiff M.E. believes the 

Steering Committee would benefit from the inclusion of Eric Gibbs and his team at 

Gibbs Law Group. This past year, Mr. Gibbs was one of ten lawyers in the country 

named to Law360’s Titans of the Plaintiffs Bar and Gibbs Law Group was one of four 

plaintiffs’ firms named to Law360’s Class Action Groups of the Year. Mr. Gibbs was also 

recognized as one of the Top Plaintiffs Lawyers in California by the Daily Journal and a 

Leading Plaintiff Consumer Lawyer by Lawdragon, and was one of three lawyers 

honored with a California Lawyer Attorney of the Year (CLAY) award for their work in 

the Anthem Data Breach Litigation. 

Gibbs Law Group Is Skilled at Building Consensus 

Like the Hyundai Fuel Economy Litigation, this multidistrict litigation is beginning in 

a promising but precarious fashion: the defendant has agreed to a proposed settlement 

that has the potential to resolve issues of national importance for millions of consumers, 

but the settlement lacks the support of all plaintiffs. 

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Plaintiff M.E. expects the Court will want to craft a leadership team that includes 

both attorneys from both the Litigating Plaintiffs and Settling Plaintiffs—i.e., attorneys 

from both the bloc that negotiated the proposed settlement and the bloc that wishes to 

continue litigating. Plaintiff would urge the Court to consider appointing Mr. Gibbs as a 

neutral attorney who has not seen the settlement or pre-judged its merits, and who has 

a history of successfully navigating the many issues that can and should be resolved 

before a finalized settlement can be presented to the Court (or the case returned to a 

litigation track). 

If appointed to the Steering Committee, Mr. Gibbs intends to work with the 

competing factions, much in the same way he did in Hyundai, to build consensus, avoid 

wasteful sideshows, and keep the core interests of the class in focus. He and others at 

Gibbs Law Group have long-standing relationships with several of the law firms on 

each side of the proposed settlement. For example, Mr. Gibbs and Gibbs Law Group 

served as co-lead counsel with Katrina Carroll (now with Carlson Lynch) in Bishop v. 

Behr Process Corporation, No. 17-cv-4464 (N.D. Ill.), worked with Glancy Prongay in 

O’Brien v. PopSugar, No. 18-cv-329645 (Cal. Super. Ct. Santa Clara Cty.), and is currently 

co-counsel with Hausfeld LLP and DiCello Levitt in John v. Clearview AI, No. 1:20-cv03481 (S.D.N.Y.). Those relationships, along with Mr. Gibbs’s strong reputation in the 

plaintiffs’ bar, could be a significant asset to Plaintiffs’ leadership team. 

This is an important case with a lot at stake for the class and for the future of 

consumer privacy. Any settlement ultimately presented to the Court is likely to receive 

a great deal of scrutiny—from consumers, from the press, and potentially from the 7th 

Circuit. By appointing a neutral to Plaintiffs’ leadership team, the Court could ensure 

divergent viewpoints are fostered, refined, and addressed before the formal settlement 

approval process begins. Any objections that remain at that point can then be presented 

in a clear, orderly, and respectful fashion, and will have the benefit of a more fully 

developed record. Judge Wu took that very approach in Hyundai and the process 

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worked well. In affirming Judge Wu’s final approval order and judgment, the Ninth 

Circuit wrote: 

Over the course of several years, the district court performed an admirable 

job of managing this complex litigation. After the settlement was 

announced, the district court held multiple status conferences and 

requested several rounds of briefing to ensure that all of the litigants’ 

concerns were heard and addressed. It made careful findings, which the 

objectors here largely do not challenge, and which more than support the 

judgment. 

In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 572 (9th Cir. 2019). Plaintiff M.E.

believes a similar process is warranted here and respectfully submits that Mr. Gibbs 

could again play a vital role in that process. In addition, if the Court is curious about the 

finer details of how Judge Wu approached the early Hyundai settlement and how Mr. 

Gibbs assisted in that process, Judge Wu has expressed his willingness to answer any 

questions the Court might have. He may be contacted through his Courtroom Deputy 

Clerk, Javier Gonzalez, at 213-894-0191. 

Gibbs Law Group Has A Wealth of Experience in Consumer Privacy Litigation 

Whatever route this litigation may ultimately take to resolution, experience in 

consumer privacy litigation will prove vital. Plaintiffs’ leadership team will need a 

nuanced understanding of the privacy interests that consumers care about, the threats 

posed to those interests by TikTok and similar data-mining operations, and the various 

technological and legal means available to safeguard those interests. 

Consumer privacy litigation has occupied a central role in Mr. Gibbs’s practice for 

over a decade. In the Anthem Data Breach Litigation, Mr. Gibbs was part of the four-firm 

leadership team that obtained a $115 million cash settlement for consumers—the largest 

data breach settlement in history at the time. And before that, Mr. Gibbs served as lead 

counsel in the Adobe Systems Privacy Litigation, 66 F. Supp. 3d 1197 (N.D. Cal. Sept. 4, 

2014), which has become one of the touchstones for Article III standing in consumer 

privacy cases. See, e.g., Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693 (7th Cir. 

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2015) (quoting from Adobe’s standing analysis and finding that, “[l]ike 

the Adobe plaintiffs, the Neiman Marcus customers should not have to wait until 

hackers commit identity theft or credit-card fraud in order to give the class standing”). 

Other examples where Mr. Gibbs and his team have successfully fought to 

vindicate consumer privacy rights include: 

 In re Equifax, Inc. Customer Data Security Breach Litig., MDL No. 2800, No. 

1:17-md-2800 (N.D. Ga.), where plaintiffs’ counsel obtained a $380.5 million settlement 

fund for victims of the massive 2017 breach of Equifax’s consumer records. Mr. Gibbs 

served on the Plaintiffs’ Steering Committee, where he deployed the considerable skills 

and deep technological understanding of David Berger, who led negotiations that led to 

an overhaul of Equifax’s data security practices—an overhaul that will require the 

company to spend $1 billion to safeguard consumers’ private information. 

 In re Vizio, Inc. Consumer Privacy Litigation, MDL No. 2963, No. 8:16-ml02963 (C.D. Cal.), which involved allegations that Vizio secretly tracked the viewing

habits of its consumers. Appointed co-lead counsel, Mr. Gibbs and his team successfully 

argued the Video Privacy Protection Act should be extended to television 

manufacturers, recouped more for class members (in the form of a $17 million 

settlement fund) than Vizio made from the practice, stopped Vizio from collecting 

viewing data without its customers’ consent, and required the company to delete all the 

data it had already collected. 

 In re Lenovo Adware Litigation, MDL No. 2624, No. 5:15-cv-00807 (N.D. Cal.), 

which involved allegations that Lenovo pre-installed adware on laptops that caused 

performance, privacy, and security issues for consumers. Gibbs Law Group, working 

alongside lead counsel, briefed and argued two motions to dismiss as well as class 

certification. Judge Ronald Whyte certified a nationwide indirect purchaser class and 

Lenovo and its co-defendant ultimately agreed to a $8.3 million class settlement that 

was approved last April. 

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Additional examples of Gibbs Law Group’s experience in complex litigation, 

including numerous consumer protection matters the firm has led outside of the 

privacy context, can be found on the firm’s website. See https://classlawgroup.com. 

Gibbs Law Group Has the Knowledge and Resources to Advance This Case 

Gibbs Law Group consists of 18 attorneys and a full team of non-lawyer 

professionals. The firm has the capacity to successfully prosecute this litigation, having 

repeatedly demonstrated its ability to match the resource commitment and focus of 

much larger firms. In Skold v. Intel, No. 1-05-cv-039231 (Cal. Super. Ct. Santa Clara Cty.), 

for example, Mr. Gibbs oversaw litigation that lasted more than a decade, entailed some 

130 depositions across the country, and required the advancement of millions of dollars 

in expenses. After the case settled on the eve of trial, Judge Peter Kirwan wrote that it 

was “abundantly clear that Class Counsel invested an incredible amount of time and 

costs in a case which lasted approximately 10 years with no guarantee that they would 

prevail.... Simply put, Class Counsel earned their fees in this case.” 

Gibbs Law Group attorneys also have deep familiarity with industry privacy 

norms, and have worked with top-flight technologists, privacy experts, and economists 

in a number of prior consumer privacy cases. David Berger, one of the attorneys 

working with Mr. Gibbs on this case, is a Certified Information Privacy Technologist, 

the Chair of AAJ’s Consumer Privacy & Data Breach Litigation Group, and one of only 

two plaintiffs’ attorneys selected to serve on the Sedona Conference’s Biometric Privacy 

Laws Brainstorming Group. His technical understanding allows him to communicate 

directly with company witnesses, without the need for expert translation, and has 

proven instrumental in negotiating effective reforms to defendants’ privacy and 

security practices—including $1 billion in data security measures that Equifax agreed to 

implement as part of the Equifax Data Breach Settlement. Mr. Gibbs, Mr. Berger, and 

Gibbs Law Group stand ready to leverage their knowledge and connections for 

consumers in this case as well. 

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CONCLUSION 

Mr. Gibbs and Gibbs Law Group recognize that others have already performed 

substantial work in this litigation. In particular, the Bird Marella and Glancy Prongay 

firms filed their privacy claims against TikTok last November and have already spent a 

great deal of time investigating and litigating those claims. The remainder of the cases 

were filed more recently, but over the past few months, Carlson Lynch devoted 

considerable resources toward case management, coordinating a mediation before 

Judge Layn Phillips (Ret.), and ultimately negotiating a settlement with TikTok. 

Gibbs Law Group has invested time and resources into the litigation as well, 

including through an objective evaluation of TikTok’s potential liability under various 

legal theories and working to prepare a complaint that presents the underlying facts in 

a simple and straightforward manner. But most of all, Mr. Gibbs and Gibbs Law Group 

have endeavored to work respectfully with the other plaintiffs’ counsel involved in the 

case, to appreciate that this case is an important one that brings out strong opinions, 

and to withhold judgment on the propriety or value of the proposed settlement until its 

terms are disclosed and a full factual record is developed. They hope to bring the same 

approach to further proceedings and would appreciate the Court’s consideration of Mr. 

Gibbs for a position on Plaintiffs’ Steering Committee. 

Dated: September 8, 2020 Respectfully submitted, 

By: /s/ Eric H. Gibbs 

Eric H. Gibbs (SBN 178658) 

David M. Berger (SBN 277526) 

GIBBS LAW GROUP LLP 

505 14th Street, Suite 1110 

Oakland, California 94612 

(510) 350-9700 (tel.) 

(510) 350-9701 (fax) 

ehg@classlawgroup.com 

dmb@classlawgroup.com 

Counsel for Plaintiff M.E.

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