PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN 

FURTHER SUPPORT OF THEIR MOTION FOR

PRELIMINARY APPROVAL OF CLASS ACTION 

SETTLEMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: TIKTOK, INC.,

CONSUMER PRIVACY

LITIGATION,

This Document Relates to All Cases

MDL No. 2948

Master Docket No. 20-cv-4699 

Judge John Z. Lee

Magistrate Judge Sunil R. Harjani 

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Table of Contents

I. INTRODUCTION .............................................................................................................. 1

II. DISCUSSION..................................................................................................................... 1

A. Minor Class Members were adequately represented by both 

proposed Class Representatives and counsel...................................................................... 1

1. Minor Class Members are represented by proposed Class 

Representatives, those representatives’ guardians, the Leadership 

Group, and the individual counsel retained by the minor Class 

Representatives. ...................................................................................................... 1

2. The objection regarding the need for separate representation of 

minor versus adult Class Members is without merit............................................... 3

B. Plaintiffs’ counsel made an exhaustive inquiry as to the strength of 

Plaintiffs’ case—including the value of the claims—and the consequent 

fairness of the proposed Settlement. ................................................................................... 7

1. The Leadership Group conducted an extensive analysis of the 

merits of each claim and of the case as a whole. .................................................... 8

2. Co-Lead Counsel’s assessment made clear that the $92 million 

settlement (plus injunctive relief) is fair, reasonable, and adequate..................... 11

3. The objectors offer nothing that warrants risking the Class’s 

recovery in continued litigation. ........................................................................... 21

C. In addition to direct email notice to more than 60 million email 

addresses and a Notice Plan designed to reach 95% of users several 

times—the parties will provide notice through TikTok’s “Inbox” feature, 

subject to a Court order..................................................................................................... 24

III. CONCLUSION................................................................................................................. 25

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Table of Authorities

Page(s)

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997)............................................................................................................ 3, 5, 6

Bower v. AT&T Mobility, LLC,

127 Cal. Rptr. 3d 569 (Ct. App. 2011)...................................................................................... 17

Brodsky v. Apple Inc.,

No. 19-CV-00712-LHK, 2019 WL 4141936 (N.D. Cal. Aug. 30, 2019)................................. 18

C.M.D.,

621 Fed. Appx. 488, 2015 WL 6575724 .............................................................................. 4, 12

Cleary v. Philip Morris Inc.,

656 F.3d 511 (7th Cir. 2011) .................................................................................................... 19

Eichenberger v. ESPN, Inc., 

No. 14-463, 2015 U.S. Dist. LEXIS 157106 (W.D. Wash May 7, 2015) ................................ 22

Eichenberger v. ESPN, Inc.,

876 F.3d 979 (9th Cir. 2017) .................................................................................................... 23

Ellis v. Cartoon Network, Inc.,

803 F.3d 1251 (11th Cir. 2015) .......................................................................................... 14, 15

Entm’t Am., LLC,

801 F.3d 1045 (9th Cir. 2015) .................................................................................................. 16

Facebook, Inc. v. Power Ventures, Inc.,

844 F.3d 1058 (9th Cir. 2016) .................................................................................................. 18

Fraley v. Batman,

638 F. App’x 594 (9th Cir. 2016)........................................................................................... 3, 4

Gregory v. Albertson's, Inc.,

104 Cal. App. 4th 845, 128 Cal. Rptr. 2d 389 (2002)............................................................... 19

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................................................................ 4, 5

Hernandez v. Hillsides, Inc.,

47 Cal. 4th 272 (2009) .............................................................................................................. 19

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Table of Authorities (cont.)

Page(s)

Cases (cont.)

In re Facebook Biometric Info. Priv. Litig., 

No. 15-CV-03747-JD, 2020 WL 4818608 (N.D. Cal. Aug. 19, 2020) .................................... 22

In re Google Android Consumer Privacy Litig., 

No. 11-MD-02264 JSW, 2013 U.S. Dist. LEXIS 42724 (N.D. Cal. Mar. 26, 2013) ............... 18

In re Google Assistant Privacy Litig.,

457 F. Supp. 3d 797 (N.D. Cal. 2020)...................................................................................... 23

In re Google Inc. Cookie Placement Consumer Privacy Litig.,

988 F. Supp. 2d 434 (D. Del. 2013).......................................................................................... 18

In re Google, Inc. Privacy Policy Litig.,

58 F. Supp. 3d 968 (N.D. Cal. 2014)........................................................................................ 19

In re iPhone Application Litig.,

844 F. Supp. 2d 1040 (N.D. Cal. 2012).................................................................................... 18

In re LinkedIn User Privacy Litig.,

309 F.R.D. 573 (N.D. Cal. 2015).............................................................................................. 20

In re Netflix Privacy Litig.,

2013 U.S. Dist. LEXIS 37286 (N.D. Cal. March 18, 2013)..................................................... 22

In re Nickelodeon Consumer Privacy Litig.,

827 F.3d 262 (3d Cir. 2016)................................................................................................ 15, 16

In re Online DVD—Rental Antitrust Litig.,

779 F.3d 934 (9th Cir. 2015) ...................................................................................................... 5

In re Pork Antitrust Litig., 

Nos. 18-1776, 19-1578, 19-2723, 2020 U.S. Dist. LEXIS 191675 (D. Minn. Oct. 16, 2020). 19

In re Sony PS3 "Other OS" Litig., 

2017 U.S. Dist. LEXIS 203402 ................................................................................................ 20

Kwikset Corp. v. Superior Court,

51 Cal. 4th 310 (2011) .............................................................................................................. 17

McDonald v. Kiloo A/S, 

No. 17-cv-04344-JD, 2020 U.S. Dist. LEXIS 175865 (N.D. Cal. Sep. 24, 2020) ................... 20

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Table of Authorities (cont.)

Page(s)

Cases (cont.)

Moreno v. S.F. Bay Area Rapid Transit Dist., 

No. 17-cv-02911-JSC, 2019 U.S. Dist. LEXIS 13309 (N.D. Cal. Jan. 28, 2019).................... 20

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999)................................................................................................................ 5, 6

Petrovic v. Amoco Oil Co.,

200 F.3d 1140 (8th Cir. 1999) .................................................................................................... 5

Reynolds v. Beneficial Nat’l Bank,

288 F.3d 277 (7th Cir. 2002) .................................................................................................... 21

Sterk v. Redbox Automated Retail, LLC,

770 F.3d 618 (7th Cir. 2014) .................................................................................................... 16

United States v. Nosal,

676 F.3d 854 (9th Cir. 2012) .................................................................................................... 18

Williams v. Apple, Inc.,

No. 19-CV-04700-LHK, 2020 WL 1492718 (N.D. Cal. Mar. 27, 2020)................................. 18

Williams v. Facebook, Inc.,

384 F. Supp. 3d 1043 (N.D. Cal. 2018).................................................................................... 17

Statutes

18 U.S.C. § 1030........................................................................................................................... 11

18 U.S.C. § 1030(c)(4)(A)(i)(I) and (g)........................................................................................ 17

18 U.S.C. § 2710........................................................................................................................... 11

18 U.S.C. § 2710(a)(4).................................................................................................................. 15

18 U.S.C. § 2710(b)(1) ................................................................................................................. 15

18 U.S.C. § 2710(b)(2)(B)............................................................................................................ 16

740 ILCS 14/1............................................................................................................................... 11

740 ILCS 14/15(b)........................................................................................................................ 13

740 ILCS 14/5, 14/10.................................................................................................................... 13

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Table of Authorities (cont.)

Page(s)

Statutes (cont.)

Bus. & Prof. C. § 17200................................................................................................................ 11

Bus. & Prof. C. § 17500................................................................................................................ 11

Cal. Bus. & Prof. Code § 17204 ................................................................................................... 17

Cal. Pen. C. § 502 ......................................................................................................................... 11

Rules

Fed. R. Civ. P. 23(c)(2)(B) ........................................................................................................... 25

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I. INTRODUCTION

At the March 2, 2021 hearing (“Hearing”) regarding Plaintiffs’ Motion for Preliminary 

Approval of the Settlement (“Motion,” ECF No.122), the Court asked Co-Lead Counsel to 

provide supplemental briefing regarding three issues: (1) the representation of minor class 

members; (2) the process through which Co-Lead Counsel valued the claims; and (3) 

consideration of class notice by email and/or in-App1 notifications.2 See Hearing Transcript 

(“Transcript”), pp. 45-47.

3 Each of those topics is addressed below.

II. DISCUSSION

A. Minor Class Members were adequately represented by both 

proposed Class Representatives and counsel.

At the Hearing, the Court asked Co-Lead Counsel to address “the representation of the 

minor [class members], . . . the involvement of the guardians of the minors as part of the 

settlement, and the consideration that class counsel gave to those minors and the differences 

between them and the adult class members.” Transcript, 45:21-46:1.

1. Minor Class Members are represented by proposed 

Class Representatives, those representatives’ guardians, 

the Leadership Group, and the individual counsel 

retained by the minor Class Representatives.

The interests of the minor Class members are adequately represented—both by counsel 

and by the proposed Class Representatives. As the Court recognized at the Hearing (Transcript, 

1 Unless otherwise noted, capitalized terms shall have the same meaning as set forth in the Settlement 

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

Release (“Addendum) (collectively, “Settlement”). ECF No. 122-1.

2 The Court did not request supplemental briefing regarding historical claims rates, which were addressed 

in the Motion and at the Hearing. However, Plaintiffs are concerned with Jay Edelson's (counsel for an 

objector) misleading communications with the public and potential class members concerning the 

Settlement, including issues pertaining to notice and claims rates. These concerns are set forth in the 

accompanying Declaration of Katrina Carroll.

3 For the Court’s convenience, a copy of the Transcript is attached as Exhibit E to the Carroll Declaration.

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27:23-28:3), the majority of the proposed Class Representatives are minors who are represented 

by their guardians and parents. Indeed, 28 of the 35 proposed Class Representatives are minors. 

ECF No. 122-2.

As the Court also presumed at the Hearing (Transcript, 28:4-11), counsel advocated the

minors’ interests throughout the litigation and settlement process. Not only did the Leadership 

Group represent minors’ interests in their role as Court-appointed counsel for the Class, but 

many of the lawyers who litigated, negotiated, settled, and/or approved the Settlement in this 

consolidated matter were directly retained by minors. Co-Lead Counsel Elizabeth Fegan and 

Katrina Carroll filed initial complaints exclusively on behalf of minor named plaintiffs. ECF No. 

122-2. Co-Lead Counsel Ekwan Row represents both adult and minor plaintiffs. Id. And counsel

retained by the proposed Class Representatives—each of whom reviewed and approved the 

terms of the Settlement before it was submitted to the Court—likewise reflect adequate 

representation of the minor and non-minor Class Members.

4

In addition, throughout this litigation, each minor plaintiff was represented by a parental 

guardian who supervised the minor’s role in the litigation, liaised with counsel, advocated their 

child’s or children’s interests, and gave approval at each step. The parental guardians were 

involved in pursuing these consolidated actions, participating in the vetting of named plaintiffs 

and Class Representatives, and considering and approving the terms of the Settlement.

Finally, the Leadership Group gave meaningful consideration to actual and potential 

differences among minors and adult class members. While the details of the Leadership Group’s 

4 For example, the law firm of Foote, Mielke, Chavez & O’Neil, LLC represents only an adult proposed 

Class Representative. Id. Mr. Foote, though not a member of the Leadership Group, was a participant in 

the second mediation and a signatory to the initial settlement agreement, ECF No. 122-1, p. 18, in 

addition to his review and approval of the Addendum and final agreement.

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strategy, internal deliberations, and work product are not laid bare in the motion for preliminary 

approval, that brief nonetheless reflects some of those considerations. E.g., ECF No. 122, pp. 5, 

21. The Leadership Group engaged in significant analysis and discussion regarding, for example:

whether minors were bound by and/or could disaffirm class action waivers and arbitration 

clauses (and the hurdles minors would face in overcoming those clauses); whether and to what 

extent some minors’ claims would be waived in connection with the settlement pending in T.K., 

et al. v. ByteDance Tech. Co., Ltd., et al., 1:19-cv-07915 (“T.K.”); ensuring that minors’ interests 

were well represented by counsel, Class Representatives, and plaintiffs’ legal guardians; 

ensuring that the proposed Settlement is in the Class’s, including the minor members’, best 

interests; and ensuring that the Notice of Proposed Class Action Settlement would alert 

guardians as to their children’s rights and reach those guardians through the Notice Plan.

Through that process, the Leadership Group determined that the Settlement is fair, reasonable, 

and adequate to minors.

2. The objection regarding the need for separate 

representation of minor versus adult Class Members is 

without merit. 

Rule 23(a)(4) requires class representatives to “fairly and adequately protect the interests 

of the class.” The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest 

between named parties and the class they seek to represent. Amchem Prods., Inc. v. Windsor, 521 

U.S. 591, 625 (1997). One objector complains that a conflict of interest exists between minor and 

adult Class Members. ECF No. 126, pp. 6-8. This objection should be rejected because all Class 

Members are entitled to compensation based on the relative strength of the laws applicable to 

them, and because each and every class member has the opportunity to opt out and pursue 

greater relief if they so choose. 

A similar objection was raised in Fraley v. Batman, 638 F. App’x 594, 597-98 (9th Cir. 

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2016). There, a settlement was reached on behalf of 150 million Facebook users who appeared in 

advertisements displayed to the users’ friends on the Facebook website. The settlement created a 

common fund of $20 million and included injunctive relief.

Certain objections to the settlement argued that a structural conflict between minors and 

adult class members required the appointment of separate counsel for the minor subclass. 

Rejecting the argument, the Ninth Circuit explained:

There was no structural conflict of interest requiring the 

appointment of separate counsel for the minor subclass. The 

evidence that a structural conflict of interest existed is sparse, 

especially given that (1) two of the three named representatives 

were minors, (2) most of the injunctive relief in the settlement 

benefitted only the minors, and (3) the minors were free to opt out 

of the settlement (as, in fact, many did). See Hanlon v. Chrysler 

Corp., 150 F.3d 1011, 1021 (9th Cir. 1998); see also C.M.D., 621 

Fed. Appx. 488, 2015 WL 6575724.

Id. at 597. Like in Fraley, no structural conflict exists here. The Class Representatives include 28

minors through their parents. The injunctive relief benefits all Class Members, including by 

requiring TikTok to: refrain from collecting user data like biometrics, GPS data, or information 

in users’ clipboards unless expressly disclosed and in compliance with all applicable laws 

(including those laws that apply only to minors); delete pre-uploaded user-generated content; and 

initiate a privacy compliance training program which must be reviewed for three years by a third 

party. ECF No. 122-1, Settlement Agreement, § 6, and Addendum, § 4. And the minors are free 

to opt out of the settlement. E.g., Settlement Agreement, § 10.

The Ninth Circuit in Fraley also rejected the argument that a conflict existed because the 

minors had more valuable claims. Fraley, 638 F. App’x at 598. The court explained:

The objectors claim that a conflict existed because the minors had 

significantly more valuable claims than the adults. We have held 

that part of the minors’ case was not meritorious, see C.M.D., 621 

Fed. Appx. 488, 2015 WL 6575724, indicating that the objectors 

may have exaggerated the relative strength of minor subclasses’

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claims as compared to the adults’ claims. Furthermore, a difference 

in value of claims does not necessarily mean there is a structural 

conflict of interest requiring separate counsel. See In re Online 

DVD—Rental Antitrust Litig., 779 F.3d 934, 942-43 (9th Cir. 

2015); Hanlon, 150 F.3d at 1021.

Id. The same analysis applies here. First, neither BIPA nor the VPPA nor any of the other claims 

raised provide the potential for greater recovery for minors. Second, the fact that some class 

member recovery could vary does not create a conflict. The Eighth Circuit’s decision in Petrovic 

v. Amoco Oil Co. addressing the propriety of subclasses provides guidance:

If the objectors mean to maintain that a conflict of interest 

requiring subdivision is created when some class members receive 

more than other class members in a settlement, we think that 

argument is untenable. It seems to us that almost every settlement 

will involve different awards for various class members. Indeed, 

even if every class member were to receive an identical monetary 

award in settlement, the true compensation would still vary from 

member to member since risk tolerance varies from person to 

person.

Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1146 (8th Cir. 1999).

Thus, this case is not, as the objector suggests, similar to the settlement classes in 

Amchem and Ortiz, which failed in part because they suffered from disabling intraclass conflicts. 

See Amchem, 521 U.S. 591; Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). In Amchem, the 

Supreme Court detected an intraclass conflict between those class members with immediate 

injuries and those class members who were merely exposed to asbestos where the terms of the 

settlement reflected “essential allocation decisions designed to confine compensation and to limit 

[the] defendants’ liability.” Amchem, 521 U.S. at 627. Specifically, the Supreme Court pointed 

out that the settlement included no adjustment for inflation and only a few claimants per year 

could opt out at the back end. Thus, under those circumstances, the Court held that the settling 

parties “achieved a global compromise with no structural assurance of fair and adequate 

representation for the diverse groups and individuals affected.” Id. 

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Here, however, the Settlement is fundamentally different because all Class Members 

have already suffered injury; there is no set-aside for future injuries by TikTok. See generally 

ECF No. 122-1 (Settlement Agreement and Addendum). Moreover, all Class Members have the 

right to opt out. Id., Settlement Agreement, § 10.

This settlement is also fundamentally different than that in Ortiz. There, part of the 

settlement fund comprised an insurance policy that covered the defendant for pre-1959 asbestos 

claims but was being used to fund post-1959 claims. See Ortiz, 527 U.S. at 850, 857. The 

Supreme Court found that this type of allocation decision represented an intraclass conflict that 

revealed the lack of structural protection for the class as required by Rule 23(a)(4). Unlike Ortiz, 

Class Counsel here has not been forced to allocate an insurance policy dedicated to minors

among adult class members; rather, TikTok itself has offered to fund a settlement to resolve all 

claims.

The fact that TikTok’s venue-based defenses, such as those regarding the arbitration 

agreement, may be stronger as to adult class members than as to minors (see ECF No. 126, p. 8)

does not suggest the minors are entitled to a larger recovery or require subclass representation.

And whether a minor could prove his case in court versus an adult at arbitration does not affect 

the amount each could potentially recover and, therefore, the ultimate potential risk to TikTok. 

Rather, the affirmative defenses raised were part of the calculus of TikTok’s risk of liability and 

overall willingness to pay to resolve all claims. 

The objector also suggests that, if adequately represented, minors under the age of 13 

would have received preferential settlement treatment. See ECF No. 126, at p. 7 (regarding 

injunctive relief); Transcript 29:19-30:17 (regarding the Child Online Privacy Protection Act 

(COPPA)). That, too, fails. It ignores that: (1) COPPA is a statute with no private right of action; 

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(2) the injunctive relief provides for deletion of minors’ data and requires ongoing compliance 

with data privacy and data collection laws that would apply to minors;

5 and (3) those under-13 

minors would not likely have claims at all in this action if not for the benefits achieved in this 

Settlement.6 The fact that T.K. class members, i.e., TikTok users under age 13, may recover in 

this case reflects the Leadership Group’s advocacy for the minor Class members’ interests.

Accordingly, this Court should reject the objection that minors were required to be 

subclassed with separate representation, and find that minors, like all Class Members, are 

adequately represented.

B. Plaintiffs’ counsel made an exhaustive inquiry as to the strength of 

Plaintiffs’ case—including the value of the claims—and the 

consequent fairness of the proposed Settlement.

At the Hearing, the Court requested “some more information with regard to the valuation 

process and the process that plaintiffs’ counsel went through . . . in arriving at the settlement 

amount,” i.e., “some more information as to what you thought the strengths and weaknesses of 

your cases were and your claims were.” Transcript, 46:2-20 (recognizing, however, that Rule 23 

5 E.g., ECF No. 122-1, Settlement Agreement, § 6 (addressing categories of data that Defendants cannot 

collect or transmit absent disclosure and compliance with “all applicable laws”; Addendum, § 4.2 

(addressing deletion of previously collected data to be “consistent with the intent of the injunctive relief in 

Section 6”).

6 In T.K., plaintiffs alleged that TikTok tracked, collected, and disclosed the personally identifiable 

information and/or viewing data of children under the age of 13, without parental consent. 1:19-cv-07915, 

ECF No. 1 (complaint), ¶ 1. That case was settled on behalf of minors under the age of 13. Id. at ECF No. 

5-1 (settlement agreement). If the court finally approves that settlement (it has already been preliminarily 

approved), those minor users’ VPPA, Intrusion Upon Seclusion, California Constitutional Right to 

Privacy, California Consumers Legal Remedies Act, and Illinois Consumer Fraud and Deceptive 

Business Practices Act claims will be released, along with any other actual or potential claim arising out 

of the facts underlying the complaint. Id.; see also id. at ECF No. 1 (complaint). However, Co-Lead 

Counsel here negotiated a provision allowing T.K. class members to file claims in this Settlement 

anyway. ECF No. 122-1, Settlement Agreement, § 2.4.

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does not require a detailed valuation or percentage-based success estimate breakdown, as one 

objector suggested).

1. The Leadership Group conducted an extensive analysis 

of the merits of each claim and of the case as a whole.

In evaluating the case’s value, Co-Lead Counsel, inter alia: (1) assessed a broad range of 

potentially applicable claims (some of which they did not ultimately pursue); (2) determined the 

damages available under each claim; (3) analyzed the strength of each claim and of the case as a 

whole; (4) worked with consultants and experts to assess the factual underpinnings of the case; 

(5) researched and considered results in other comparable cases (including both settlements and 

dismissals); (6) evaluated settlement pressures and factors beyond the claims themselves; and 

(7) considered the advice and perspective of the parties’ highly experienced mediator, who is 

also a former federal judge.

As discussed in the Motion and Co-Lead Counsel Elizabeth Fegan’s declaration in 

support, the Leadership Group engaged in months of research, analysis, advocacy, internal 

debate, and negotiation to assess the value of the claims and defenses in this ligation. Motion, 

e.g., pp. 11-14; Fegan Decl., ECF No. 122-7, e.g., ¶¶ 15-23. Well aware of the maximum 

damages underlying each claim, members of the Leadership Group undertook discrete research 

projects to assess the strength of those claims and the case as a whole. See id. at ¶ 17. 

As just one example of the post-leadership-appointment analysis, and without waiving 

the protections for attorney work product, one member of the Leadership Group, at Co-Lead 

Counsel’s direction, drafted a 16-page single-spaced memorandum regarding the strengths of the 

VPPA claim alone, which was then independently vetted by members of the Co-Lead Counsel 

team several times during the parties’ settlement negotiations and when crafting the consolidated 

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amended complaint (“Complaint,” ECF No. 114).

7 A member of the Co-Lead Counsel team

prepared a comprehensive memorandum regarding the potential valuation of BIPA and nonstatutory privacy claims with nearly 30 different potential recovery scenarios. That, too, was 

discussed and vetted by Co-Lead Counsel multiple times before the Settlement was submitted for

approval. These are just examples of the extensive work product undertaken to evaluate and 

value the claims here.

Co-Lead Counsel and other members of the Leadership Group also analyzed the claims 

and defenses at numerous other stages of the litigation, including, e.g.:

• researching and drafting the initial complaints; 

• vetting the claims asserted in various now-consolidated actions in connection with 

motions for consolidation and transfer before the Judicial Panel for Multidistrict 

Litigation and subsequent motions requesting appointment as lead counsel;

• preparing mediation statements for two mediations and analyzing TikTok’s own 

mediation briefing;

• researching and drafting the consolidated amended complaint; 

7 One objector claims “Co-Lead Counsel evaluated the VPPA claim in less than a week without the 

benefit of any discovery.” ECF No. 132, at p. 7. He bases this conclusion on a self-concocted theory that 

counsel here first learned of the VPPA claim’s value at an August 7, 2020 status hearing in T.K. and later 

mediated this case on August 13, 2020. Id. There is no question that, at the time of the mediation, VPPA 

claims had long been pending against TikTok in both the T.K. case and in a complaint consolidated in this 

MDL. And the VPPA claims were addressed with the mediator in this case well before the August 7 

status hearing the objector chose simply because it was closest in time to the mediation.

The absence of the VPPA claim in the vast majority of the now-consolidated complaints was not an 

oversight by dozens of the country’s best privacy and class action lawyers. Rather, it speaks volumes 

about the claim’s historical weaknesses. And this Court recognized the pitfalls of kitchen sink pleading in 

denying an earlier motion to intervene in this action: an “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.” 1:20-cv-02810, ECF No. 46, p. 8. 

Though Co-Lead Counsel, after much consideration, ultimately decided to pursue the VPPA claim, it is 

not without risk.

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• engaging in ongoing settlement negotiations; 

• working with technology experts and consultants, and conducting confirmatory 

discovery; and 

• assessing and negotiating the allocation of settlement funds between subclasses 

with different claims (more information about that process is available in the 

declarations of allocation counsel, ECF Nos. 122-10 and 122-11). 

Simply put: the Leadership Group revisited the claims, defenses, litigation risks, and 

valuation numerous times. This rigorous analysis was, in part, the result of the way the 

Leadership Group was brought together from a mix of teams who asserted different claims and

had different perspectives about how the case should proceed.

Co-Lead Counsel also worked with experienced technology experts who reviewed 

TikTok’s application code, data transfers, and source code and provided valuable information 

regarding whether and how plaintiffs would be able to prove their claims. And Co-Lead Counsel 

considered practical and external factors—like hurdles associated with obtaining discovery from 

and/or enforcing a judgment against foreign defendants, and settlement pressures related to, for 

example, former President Trump’s executive orders requiring the sale of TikTok, judicial and 

legislative initiatives to undermine BIPA or overturn it altogether, and challenges to class 

member standing in actions asserting statutory violations (like that currently pending before the 

Supreme Court in TransUnion LLC v. Ramirez, Case No. 20-296).

No stone was left unturned. By assessing the strengths and weakness of the claims, and in 

light of their decades of experience with class actions like this one, Co-Lead Counsel were able 

to assess the case’s value now, and at trial—and balance that with the risks of continued 

litigation.

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2. Co-Lead Counsel’s assessment made clear that the $92 

million settlement (plus injunctive relief) is fair, 

reasonable, and adequate.

The Complaint asserts nine claims.

8 Co-Lead Counsel assessed each of these claims (and 

others), as well as other case-wide risks (e.g., arbitration clauses, jurisdictional issues, class 

certification, and legislative changes), in valuing the case and assessing the Settlement.9 Some of 

these considerations are addressed in the Motion and below. 

a. All of Plaintiffs’ claims are subject to overarching risk 

and they will be compelled to individual arbitration.

The valuation of Plaintiffs’ claims is impacted by terms of service that could effectively

dispose of the claims in their entirety. TikTok’s terms of service include an arbitration clause, as 

well as a class action and class arbitration waiver. The enforcement of these provisions would 

moot Plaintiffs’ class case as a threshold matter even before a motion to dismiss is considered, 

effectively valuing all asserted claims at $0 (absent individual pursuit of those claims in 

arbitration). See also, Motion, pp. 4-5.

8 The Complaint alleges violations of the: Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; 

California Comprehensive Data Access and Fraud Act (CDAFA), Cal. Pen. C. § 502; Right to Privacy –

California Constitution; Intrusion Upon Seclusion; California Unfair Competition Law (UCL), Bus. & 

Prof. C. §§ 17200 et seq.; California False Advertising Law (FAL), Bus. & Prof. C. §§ 17500 et seq.; 

Restitution / Unjust Enrichment; Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, et seq.; and 

Illinois’ Biometric Information Privacy Act (BIPA), 740 ILCS 14/1, et seq. The Complaint also asserts a 

tenth alternative cause of action for violations of state consumer protection statutes in the event California 

law is not applied nationwide. Complaint, ¶¶ 322, 418-427.

9 In providing this supplemental memorandum, Co-Lead Counsel have attempted to balance the Court’s 

need to assess the settlement, with Co-Lead Counsel’s need to protect their work product, particularly to 

the extent it identifies case weaknesses that might cut against the interests of the Class, who would have 

to resume litigation and zealous advocacy of their claims if the Settlement is not approved.

In this brief, Plaintiffs focus on some of the risks of and defenses to their case because those factors shed 

light on the reasons why a settlement that recovers less than maximum damages is nevertheless in the best 

interests of the Class and exceeds Rule 23’s requirements for approval. However, Co-Lead Counsel have

faith in Plaintiffs’ claims, and the $92 million fund (with injunctive relief) is reflective of the positive 

merits of this case. 

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Plaintiffs would argue that, even if the terms are valid, minors could disaffirm their 

agreement to those provisions. Some cases have held, however, that disaffirmance would require 

minors to cease using the TikTok application permanently (and to have done so before filing 

their complaint)—a big ask given the App’s widespread popularity with teenagers. See, e.g., 

C.M.D. ex rel. De Young v. Facebook, Inc., 621 F. App’x 488, 489 (9th Cir. 2015). Even if

minors can legally disaffirm TikTok’s terms and are willing to cease use of the App to do so, the

ability to disaffirm these provisions on a class-wide basis is relatively novel and untested.

Plaintiffs have not located a single ruling from any jurisdiction to date supporting the concept of 

class-based disaffirmance.

The substantial risk of forced arbitration factored meaningfully into counsel’s valuation 

of Plaintiffs’ claims.

b. The statutory damages claims provide high maximum 

damages, with equally high barriers to success and 

weak track records. 

The claims that provide the overwhelming majority of the maximum potential damages in 

this case are the Video Privacy Protection Act (VPPA) and Illinois Biometric Information 

Privacy Act (BIPA) claims—which provide statutory damages ($2,500 for VPPA violations; 

$1,000 for negligent BIPA violations; and $5,000 for intentional or reckless BIPA violations—

though neither objector asserts that class members would be entitled to $5,000 here). No

consumer class has ever recovered full statutory damages for either claim. To be sure, the

statutes set compelling minimum damages amounts. But to recover anything at all, Plaintiffs 

must, of course, prove their underlying claims (and overcome Defendants’ arguments as to 

arbitration and class certification).

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i. BIPA

BIPA was enacted in 2008 to regulate the collection, use, storage, and handling of 

biometric identifiers. The law is not yet well developed beyond motion to dismiss rulings. This 

provides an opportunity for Plaintiffs to create new, favorable law—but it also creates substantial 

risk that courts will construe the law in an undesirable way.

In valuing Plaintiffs’ BIPA claims (and the likelihood of obtaining statutory damages), 

Co-Lead Counsel considered, inter alia:

• Whether the Court and jury will conclude that TikTok’s facial landmarking 

constitutes a “biometric identifier” as defined in the statute, given the nature of 

the landmarking (TikTok contends its landmarking does not use facial recognition

and is not used—nor can it be used—to identify a person, and that TikTok does 

not otherwise collect biometric data). 740 ILCS 14/5, 14/10.

• Whether the Court and jury will conclude that TikTok’s facial landmarking 

constitutes a “biometric information” as defined in the statute, e.g., information 

that can be “used to identify an individual,” given that TikTok’s facial 

landmarking data is not associated with a name or other personally identifying 

information. 740 ILCS 14/5, 14/10.

• Whether the Court and jury will conclude TikTok was “in possession” and/or 

“collect[ed], capture[d], purchase[d], receive[d] through trade, or otherwise 

obtain[ed]” Plaintiffs’ biometrics in light of TikTok’s contentions that facial

landmarking data remained on users’ devices and in light of the confidential 

confirmatory discovery regarding any transfer of such data. 740 ILCS 14/15(b).

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Plaintiffs also considered potential changes to the legal and legislative treatment of BIPA 

over the potential years of ongoing litigation should the Settlement be rejected. BIPA defendants 

often contend the statute is unconstitutional, violates the Dormant Commerce Clauses, and/or 

cannot be applied extraterritorially. Courts have often rejected or deferred determinations on 

these arguments. But anti-BIPA legislation is currently pending in Illinois that threatens to 

eliminate BIPA’s private right of action, eliminate BIPA’s statutory damages, and/or otherwise 

materially limit its reach. See Laura Ann Wood, Illinois Bill Seeks To File Down Biometric 

Law’s Sharp Teeth, LAW360 (March 22, 2021) (attached hereto at Exhibit A).

10 Plaintiffs could 

overcome arbitration clauses, certify a class, get favorable interim legal interpretations of BIPA, 

gather proof of the alleged facts through months or years of discovery and high-tech expert 

work—only to find that BIPA’s key provisions are stripped by the time of trial.

And, of course, Plaintiffs considered other settlements in comparable consumer BIPA 

cases (none has gone to trial). The Motion details those recoveries and, in particular, addresses 

similarities and differences between the facts here and those underlying the recent recovery in 

Facebook BIPA. Motion, pp. 24-29. See also Exhibit B (chart of relevant settlements). These 

factors demonstrate that the recovery here is fair, adequate, and reasonable.

ii. VPPA

The VPPA was enacted in 1988 as a reaction to the disclosure of a Supreme Court 

nominee’s video store rental records in a newspaper. Ellis v. Cartoon Network, Inc., 803 F.3d

1251, 1252 (11th Cir. 2015). Though the VPPA has been around two decades longer than BIPA, 

10 E.g., Illinois SB 3593: https://tinyurl.com/myfknh2p; SB2134: https://tinyurl.com/znm5vchc; SB0056: 

https://tinyurl.com/24xk8ksm; HB0559: https://tinyurl.com/yffnyznr; HB0560: 

https://tinyurl.com/hsmvfp2e.

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and a greater number of relevant decisions exist—that law is not entirely favorable. And

TikTok’s cutting edge technology is not a square fit with the statute’s outdated phrasing. 

In valuing plaintiffs’ VPPA claim (and the likelihood of obtaining statutory damages), 

Co-Lead Counsel considered a number of the statute’s elements, e.g.:

• Whether the Court and jury will conclude TikTok is a “video tape service 

provider” engaged in a business involving “cassette tapes or similar audio visual 

materials.” 18 U.S.C. § 2710(a)(4);

• Whether the Court and jury will conclude each TikTok user is a “renter, 

purchaser, or subscriber of goods or services from a video tape service provider.”

See id. at (a)(1); See Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1258 (11th 

Cir. 2015) (“free downloading of a mobile app . . . to watch free content, without 

more, does not a ‘subscriber’ make”; though registering and establishing a profile, 

for example, likely does);

• Whether the Court and jury will conclude TikTok’s alleged disclosure of

anonymized third-party advertising identifiers constitutes disclosure of

“personally identifiable information” (PII)—particularly as courts have held that 

the VPPA protects “the kind of information that would readily permit an ordinary 

person to identify a specific individual’s video-watching behavior.” See 18 U.S.C.

§ 2710(b)(1); e.g., In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 290 

(3d Cir. 2016);

• Whether the Court and jury will conclude TikTok obtained “informed, written 

consent” to such disclosures in light of its privacy policies, which include certain 

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disclosures about TikTok’s sharing of information with third parties. See 18 

U.S.C. § 2710(b)(2)(B); and

• Whether the Court and jury will conclude the transfer of the alleged information 

to TikTok’s business partners is “incident to the ordinary course of business” of

TikTok and thus falls within an exception to the statute. See id. at (b)(2)(E); See, 

e.g., Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 621, 623 (7th Cir. 

2014) (dismissing VPPA claim because video tape service providers “may use 

third parties in their business operations”); Rodriguez v. Sony Comput. Entm’t 

Am., LLC, 801 F.3d 1045, 1054 (9th Cir. 2015) (affirming dismissal of VPPA 

claims alleging disclosure of personal information to affiliate entities).

See also Motion at 7-8, 22-23 (further discussing relevant case law, including Third and Ninth 

Circuit decisions suggesting numeric identifiers are not PII under the VPPA, and a First Circuit 

decision suggesting they may be, if combined with GPS information, for example).

The hurdles associated with a VPPA claim are reflected in the results of numerous prior

VPPA class cases, which Plaintiffs also considered in valuing the claim. Many were dismissed at 

the motion to dismiss stage. And those that resulted in a settlement conferred minimal or cy presonly relief without any money actually paid to class members. These are discussed in the 

Motion. See Motion, pp. 29-30 ($1.06 per class member in Vizio, $0.18 per class member in T.K.

(pending final approval); cy pres settlement amounting to $0.14 per class member in Netflix; cy 

pres settlement averaging $2.59 per class member in Lane v. Facebook (which also asserted an 

ECPA claim with $10,000 in statutory damages and other claims). See also Exhibit B

(identifying these and other cases in more detail).

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In valuing Plaintiffs’ VPPA claim, Co-Lead Counsel considered all the attendant 

strengths and weaknesses of the claim and balanced the sought-after $2,500 statutory damages 

with the risks of litigation and the reality that class members have historically recovered closer to 

$1, if anything at all.

c. Plaintiffs’ additional claims also carry their own risks, 

without the potential upside of statutory damages.

Plaintiffs’ seven other claims (four consumer statutes, one California Constitutional 

violation, and two common law claims) each have factual and legal hurdles as well, and none 

offers statutory damages. 

With respect to the factual underpinnings of those claims, for example, The Wall Street 

Journal reported just yesterday that national security fears concerning TikTok’s connections to 

China may have been unfounded and that the TikTok app is no more intrusive in terms of data 

collection than its competitors. See Eva Xiao, TikTok Doesn’t Pose Overt Threat to U.S. 

National Security, Researchers Say, THE WALL STREET JOURNAL (March 22, 2021) (attached 

hereto at Exhibit A). 

Regarding the legal requirements of these claims, many cases have held that the 

consumer statutes each require allegations of pecuniary damages to state a claim.

11 Courts have 

often rejected the contention that “that the unauthorized collection, use, or disclosure of personal 

11 Defendants would argue, for example, that: The CFAA provides a civil remedy when a plaintiff “suffers 

damage or loss” stemming from a violation of the Act of at least $5,000 in value during a one-year period. 

18 U.S.C. § 1030(c)(4)(A)(i)(I) and (g). CDAFA claims requires economic harm or loss. Williams v. 

Facebook, Inc., 384 F. Supp. 3d 1043, 1050 (N.D. Cal. 2018). The UCL requires “injury in fact and . . . 

lost money or property as a result of the unfair competition,” i.e., “some form of economic injury.” Cal. 

Bus. & Prof. Code § 17204; Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011); FAL requires 

“injury in fact” and “lost money or property . . . .” Bower v. AT&T Mobility, LLC, 127 Cal. Rptr. 3d 569, 

578 (Ct. App. 2011).

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information constitutes economic damages for the purposes of” these claims.12 Without the 

requisite showing of damages, Plaintiffs would lack standing and their claims would be entirely 

dismissed. (Plaintiffs have alleged that deficiencies associated with their devices—e.g., battery 

and bandwidth drain—are damages; TikTok would dispute that suffices).

There are additional risks with establishing other elements of these claims. The Computer 

Fraud and Abuse Act (CFAA), for example, is aimed at hacking, and Plaintiffs must overcome 

defenses that they voluntarily downloaded and authorized the App’s access to user data as

disclosed in TikTok’s privacy policy. See, e.g., Brodsky v. Apple Inc., No. 19-CV-00712-LHK, 

2019 WL 4141936, at *8 (N.D. Cal. Aug. 30, 2019) (rejecting CFAA claim where plaintiffs did 

not allege that they had revoked consent for defendant’s servers to receive plaintiffs’ login 

activities); United States v. Nosal, 676 F.3d 854, 858, 863 (9th Cir. 2012) (CFAA is aimed at 

conduct wrongfully “circumventing technological access barriers”).

The California Comprehensive Data Access and Fraud Act (CDAFA) is California’s 

state-law parallel to the CFAA, though it lacks a $5,000 loss minimum (it does, however, require 

loss or damages). The analysis under the CFAA and the CDAFA are similar, and authorized 

access is not actionable. See Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1069 (9th

Cir. 2016). Plaintiffs would thus be required to show that TikTok exceeded the scope of its

authorized access to their devices.

The California False Advertising Law (FAL) and California Unfair Competition Law 

(UCL) claims depend on false advertisements and unfair conduct, respectively. E.g., Williams v. 

12 In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F. Supp. 2d 434, 448 (D. Del. 2013) 

(regarding CFAA), aff'd in part, vacated in part, remanded, 806 F.3d 125 (3d Cir. 2015); see id. at 450 

(regarding UCL); see also In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1068 (N.D. Cal. 2012) 

(regarding CFAA); In re Google Android Consumer Privacy Litig., No. 11-MD-02264 JSW, 2013 U.S. 

Dist. LEXIS 42724, at *34-25 (N.D. Cal. Mar. 26, 2013) (regarding CDAFA).

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Apple, Inc., No. 19-CV-04700-LHK, 2020 WL 1492718, at *14 (N.D. Cal. Mar. 27, 2020); 

Gregory v. Albertson's, Inc., 104 Cal. App. 4th 845, 854, 128 Cal. Rptr. 2d 389, 394 (2002).

Plaintiffs would have to identify specific advertisements and conduct that both (1) meet the 

requirements of these claims and (2) are not rebutted or disclosed by TikTok’s expansive terms 

of service and privacy policies. They would also have to overcome arguments as to reliance.

The California Constitutional claim requires proof of a “highly offensive,” intentional 

intrusion into a place where Plaintiffs had a reasonable expectation of privacy that is 

“‘sufficiently serious’ . . . to constitute an ‘egregious breach’ of the social norms.” Hernandez v. 

Hillsides, Inc., 47 Cal. 4th 272, 287 (2009). This is a high bar. It is made higher by TikTok’s 

various privacy policies and terms of service which make numerous disclosures about data 

access and disclosures.

Similarly, the intrusion on seclusion claim requires a showing of a “highly offensive” 

disclosure. In re Google, Inc. Privacy Policy Litig., 58 F. Supp. 3d 968, 987-88 (N.D. Cal. 2014) 

(finding that disclosure of a person’s name and identity, contact list, and contents of 

communications to third-party developers was not highly offensive).

Unjust enrichment claims often survive a motion to dismiss, with complicated state-bystate and class-related analyses to come later. E.g., In re Pork Antitrust Litig., Nos. 18-1776, 19-

1578, 19-2723, 2020 U.S. Dist. LEXIS 191675, at *61 (D. Minn. Oct. 16, 2020). However, such 

claims may require that a plaintiff at least show a “detriment—and, significantly, a connection 

between the detriment and the defendant’s retention of the benefit.” Cleary v. Philip Morris Inc.,

656 F.3d 511, 519 (7th Cir. 2011); id. at 520 (plaintiffs’ “claim that the defendants had a 

concerted plan to intentionally mislead consumers and conceal the truth about their cigarettes, is 

insufficient to support a cause of action for unjust enrichment. Unjust enrichment is not a mode 

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of imposing punitive damages; it is a means of recovering something that the defendant is not 

entitled to but is unfairly possessing to the plaintiff’s detriment”). Plaintiffs will have to 

overcome arguments that they have experienced no detriment because they paid nothing for the 

App, they enjoyed its benefits, consumer data is not valuable to consumers themselves, and/or 

the alleged wrongdoing is inadequately linked to TikTok’s profit. TikTok may be profitable, but 

that alone does not establish Plaintiffs’ right to recover those profits.

d. Plaintiffs’ non-statutory damages claims generally 

resolve for nominal damages (if anything).

The high-level overview in this brief identifies just a few of the factors Co-Lead Counsel 

considered in evaluating the likelihood of success in pursuing, inter alia, restitution, actual 

damages, and/or injunctive relief through these claims. Another important factor was the 

historical recoveries in cases alleging these claims. They are low.

Setting aside the countless cases that have been dismissed, settlements of these claims in 

the privacy context include, e.g., $0.25 per class member in a claims-made settlement of CFAA 

claims in In re Sony PS3 "Other OS" Litig., 2017 U.S. Dist. LEXIS 203402; a cy pres-only 

settlement of CFAA, VPPA, and ECPA claims in Lane v. Facebook, Inc., No. 5:08–cv–03845–

RS (N.D. Cal.); preliminary approval of an injunctive-only relief settlement of intrusion upon 

seclusion, California Constitutional right to privacy, UCL, and other New York and 

Massachusetts state-law claims in McDonald v. Kiloo A/S, No. 17-cv-04344-JD, 2020 U.S. Dist. 

LEXIS 175865, at *22 (N.D. Cal. Sep. 24, 2020) (“further litigation would have been timeconsuming and risky, and any damage award was uncertain and likely to have been nominal for 

most class members.”); $1.56 per class member in case alleging violations of UCL and breach of 

contract in In re LinkedIn User Privacy Litig., 309 F.R.D. 573, 584 (N.D. Cal. 2015) and 12-cv03088, ECF No. 136 (preliminary approval order). See also Moreno v. S.F. Bay Area Rapid 

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Transit Dist., No. 17-cv-02911-JSC, 2019 U.S. Dist. LEXIS 13309, at *29 (N.D. Cal. Jan. 28, 

2019) (injunctive-only relief settlement of a California Cellular Communications Interception 

Act claim after other claims alleged here – including intrusion upon seclusion and California 

Constitutional right to privacy—were dismissed). See also Exhibit B.

In sum, Plaintiffs face risks in establishing these claims and the recoveries are typically 

quite low.

3. The objectors offer nothing that warrants risking the 

Class’s recovery in continued litigation.

One objector (providing no substantive analysis),13 represented by Scott Drury, values

the VPPA claim at $1.15 billion and the BIPA claim at $50 million. ECF No. 126, at p. 9. The 

Settlement’s monetary fund far exceeds the objector’s BIPA valuation—yet, he apparently takes 

issue with the recovery for the VPPA claim. Similarly, the other objector, represented by Jay 

Edelson, says nothing about the Settlement’s recovery as it pertains to the BIPA claim, but notes 

that the VPPA is “potentially 2.5x as valuable as the . . . BIPA claim” (referring to bare statutory 

damages). ECF No. 132, p. 8. While Co-Lead Counsel appreciate that the objectors find the 

Complaint so persuasive and compelling that it warrants a result that exceeds by many multiples 

any other VPPA (or privacy) settlement in history—the reality of the applicable laws and 

13 Drury made no real attempt to value this case, despite referencing the Seventh Circuit’s “easy” 

“formula” in Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277 (7th Cir. 2002), ECF No. 126, pp. 1, 9—

which this Court recognized is of limited import here, Transcript, pp. 35-36. Drury simply applied the 

numbers that the Seventh Circuit itself repeatedly described as “arbitrary.” Id.; 288 F.3d at 285. He 

disregarded the “discount[]” the court contemplated “depending on an estimate of the likely duration of 

the litigation.” Id. And he ignores that his “medium” value of $200 million would be the largest recovery 

in VPPA history and the largest BIPA recovery when class size is considered. Even his basic math 

doesn’t add up: he claims the “net expected value” of the VPPA and BIPA claims is $1.15 billion and $50 

million, respectively—but totals that to $1.45 billion. ECF No. 126, p. 9. Regardless, rather than apply 

"arbitrary" numbers to a theoretical formula, Co-Lead Counsel analyzed this case, and, inter alia, 

considered comparable cases that have actually recovered monetary funds for classes, to assess the value 

here. 

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relevant facts do not support shunning a $92 million fund and injunctive relief in favor of 

continued litigation.

Edelson claims that a split in authority on VPPA “places the claim on equal or stronger 

footing than the BIPA claim” because the court in Facebook BIPA noted the “dearth” of 

authority regarding issues present here. ECF No. 132, p. 8 (citing 2020 WL 4818608, at *3). He 

fails to tell the whole story. That “division in authority” concerns only one of several relevant, 

risky elements of VPPA—and it falls in defendants’ favor. Even the supportive circuit court case 

is based on facts that go beyond what Plaintiffs here have alleged. And that “dearth” of BIPA 

authority is now complemented by the $650 million settlement in Facebook BIPA. No VPPA 

settlement approaches that amount, let alone does one eclipse it by 2.5 times.

Edelson is no stranger to VPPA actions or their hurdles. When he settled In re Netflix

Privacy Litig., No. 11-cv-00379 (N.D. Cal.) in 2012, that class received nothing. 2013 U.S. Dist. 

LEXIS 37286. But Edelson told the Ninth Circuit Court of Appeals that the $9 million cy pres 

distribution (averaging a “value” of $0.14 per class member) provided “relief in excess of what 

could reasonably be expected from trial.” In re Netflix Privacy Litig., No. 13-15723 (9th Cir.), 

ECF No. 51-1, p. 17 (attached as Exhibit C). He justified a request for $6.4 million in fees by 

stating that, even if plaintiffs fully prevailed on the merits: “given that Netflix’s theoretical 

liability exceeded $150 billion, both constitutional and pragmatic concerns suggested that no 

court would award such an amount, and, in class counsel’s opinion, a best-case recovery for 

those claims would be $3 million.” Id. at p. 58 (emphasis in original). 

Court-approved settlements are not the only barometer of Plaintiffs’ likelihood of 

success or the value of their claims—many cases never make it past a motion to dismiss. Edelson 

represented plaintiffs in Eichenberger v. ESPN, Inc., No. 14-463, 2015 U.S. Dist. LEXIS 157106 

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(W.D. Wash May 7, 2015)—the VPPA claim there was dismissed with prejudice after the 

second amended complaint. That decision was affirmed, 876 F.3d 979 (9th Cir. 2017),

contributing to the unfavorable Circuit split weighing against Plaintiffs here. Edelson also 

represented plaintiffs in Perry v. CNN, Inc., 854 F.3d (11th Cir. 2017), another Circuit Courtaffirmed dismissal of a VPPA claim.

Edelson, citing a 2016 case from the Eastern District of Wisconsin, also contends that 

California’s “unique” laws permit restitution of profits. ECF No. 132, pp. 8-9. A 2020 case from 

the Northern District of California, however, rejected plaintiffs’ attempt to seek restitution in 

connection with a UCL claim that alleged defendants wrongfully monetized and profited from 

their personal content and information, dismissing plaintiffs’ claims outright. In re Google

Assistant Privacy Litig., 457 F. Supp. 3d 797, 840-41 (N.D. Cal. 2020).

Edelson and his co-counsel achieved a historical settlement in Facebook BIPA. But the 

facts here are different, as are the claims. Edelson’s objections are entirely divorced from the 

realities of this case. Instead, they are rooted in his feigned surprise that this result, which 

compares favorably to Facebook BIPA, was well-informed and accomplished without the five

years of litigation and threat of trial. See, e.g., ECF No. 132, pp. 7, 8. The resolution here was 

efficient, yes—but it was effective, too. And it was neither achieved overnight nor ill-considered. 

The first MDL complaint was filed a year before the settlement was submitted for approval; and 

the Leadership Group vetted the settlement for six months—with confirmatory discovery and 

candid discussions taking the place of motion briefing and formal discovery processes. Co-Lead 

Counsel undertook an informed vetting and valuation of this case.

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C. In addition to direct email notice to more than 60 million email 

addresses and a Notice Plan designed to reach 95% of users

several times—the parties will provide notice through TikTok’s 

“Inbox” feature, subject to a Court order.

At the Hearing, the Court asked Co-Lead Counsel to address why the Notice Plan does 

not include “some sort of notice that’s provided through the app. . . .” Transcript, 46:21-24. The 

Court also asked “the parties . . . to go back and talk about whether or not there is a way to email, 

or otherwise, to provide some sort of notice through the app itself.” Transcript, 46:26-47:5.

Direct individual notice by email is the foundation of the proposed notice program here.

The Parties conservatively estimate that the email notice (to be sent to 60 million plus email

addresses in TikTok’s possession) will provide at least one-third—and potentially more than 

two-thirds (70%)—of class members with direct, individual notice.14 In addition to the direct 

email notice, the Parties, in conjunction with proposed claims administrator Angeion, have 

proposed a comprehensive publication notice designed to reach 95% of the target audience more 

than five times. The Federal Judicial Center (FJC) has concluded that a notice plan that reaches 

at least 70% of the class is reasonable. Federal Judicial Center, Judges’ Class Action Notice and 

Claims Process Checklist and Plain Language Guide, p. 3 (2010). The proposed notice program 

far surpasses the 70% threshold.15

Per the Court’s instruction at the Hearing, the Parties again conferred further about 

providing notice through the App. TikTok was previously resistant to providing inbox notice 

14 The Parties provide this conservative number as an estimate as it is unknown how many TikTok 

accounts with email addresses are duplicate accounts created by the same user using different email 

addresses.

15 Prior to submitting the Settlement for preliminary approval, Angeion also developed a notice plan that 

would reach 80.63% of class members an estimated 4.47 times—which also surpasses the FJC’s target 

threshold. Co-Lead Counsel nevertheless selected the more comprehensive, “enhanced” notice option.

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through the App because of, inter alia, concerns that: (i) users had not consented to receive 

“Inbox” and “push” notifications that are not part of the integral features of the App; (ii) the 

default setting for Android users, and an elective setting for Apple (iOS) users, is to receive 

“push” notifications for each Inbox notification; and (iii) TikTok is prohibited by its agreements 

with the app stores (like Apple and Google) from sending push notifications for unsolicited 

content beyond the “integral features” of the App. 

Following numerous conferences related to providing supplemental notice, TikTok has 

agreed, pursuant to Section 17.5 of the Settlement Agreement (“to take all additional action that 

may be necessary or appropriate to give full force and effect to the basic terms and intent of this 

Agreement”), to provide Inbox notice, at its own cost, if the Court determines that (1) Fed. R. 

Civ. P. 23(c)(2)(B) requires use of the Inbox feature to provide the best notice practicable; and 

(2) the benefit to class members in receiving this notice outweighs any detriment they may 

experience in receiving in-app and system notifications for non-integral features of the App. 

III. CONCLUSION

For the foregoing reasons, and those explained in Plaintiffs’ Motion, Plaintiffs 

respectfully request that the Court grant Plaintiffs’ Motion for Preliminary Approval, and grant 

such and other further relief as the Court deems appropriate.

Dated: March 23, 2021 Respectfully Submitted,

By: /s/ Katrina Carroll

Katrina Carroll

CARLSON LYNCH, LLP

111 W. Washington St.

Suite 1240

Chicago IL 60602

312.750.1265

kcarroll@carlsonlynch.com

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By: /s/ Elizabeth A. Fegan

Elizabeth A. Fegan

FEGAN SCOTT LLC

150 S. Wacker Dr., 24th Floor

Chicago, IL 60606

Ph: 312.741.1019

Fax: 312.264.0100

beth@feganscott.com

By: /s/ Ekwan Rhow

Ekwan Rhow

BIRD, MARELLA, BOXER, WOLPERT, 

NESSIM, DROOKS, LINCENBERG & 

RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, CA 90067

(310) 201-2100

erhow@birdmarella.com

Plaintiffs’ Co-Lead Counsel

Jonathan Jagher 

Freed Kanner London & Millen LLC

923 Fayette Street

Conshohocken, PA 19428

(610) 234-6487

jjagher@fklmlaw.com

Megan E. Jones 

Hausfeld LLP 

1700 K Street NW, Suite 650 

Washington, D.C. 20006 

(202) 540-7200 

mjones@hausfledllp.com

Michael Gervais 

Susman Godfrey LLP

1900 Avenue of the Stars

Suite 1400

Los Angeles, CA 90067

(310) 789-3100

mgervais@susmangodfrey.com

Amanda K. Klevorn 

Burns Charest LLP 

365 Canal Street 

Suite 1170 

New Orleans, LA 70130 

Case: 1:20-cv-04699 Document #: 137 Filed: 03/23/21 Page 32 of 33 PageID #:2424
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(504) 799-2845 

aklevorn@burnscharest.com 

Albert Y. Chang 

Bottini & Bottini, Inc. 

7817 Ivanhoe Avenue 

Suite 102 

La Jolla, CA 92037 

(858) 914-2001 

achang@bottinilaw.com 

Plaintiffs’ Steering Committee

Shannon Marie McNulty

Clifford Law Offices, P.C.

120 North LaSalle Street, Suite 3100

Chicago, IL 60602

(312) 899-9090

smm@cliffordlaw.com

Plaintiffs’ Liaison Counsel

Case: 1:20-cv-04699 Document #: 137 Filed: 03/23/21 Page 33 of 33 PageID #:2425