EXHIBIT B

Case: 1:20-cv-04699 Document #: 59-2 Filed: 09/09/20 Page 1 of 18 PageID #:1181
IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

T.K., THROUGH HER MOTHER, SHERRI

LESHORE, and A.S., THROUGH HER 

MOTHER, LAURA LOPEZ, individually and 

on behalf of all others similarly situated,

 Plaintiffs,

 vs.

BYTEDANCE TECHNOLOGY CO., LTD., 

MUSICAL.LY INC., MUSICAL.LY THE 

CAYMAN ISLANDS CORPORATION, and 

TIKTOK, INC.,

 Defendants.

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Case No. 19 C 7915

Judge John Robert Blakey

Magistrate Judge M. David Weisman

 

OBJECTOR MARK S.’s MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR 

ENFORCEMENT OF PRELIMINARY INJUNCTION AND FOR REASSIGNMENT 

AND CONSOLIDATION OF THE RELATED TIKTOK MDL

Dated: September 9, 2020 Respectfully submitted,

MARK S.

By: /s/ Scott R. Drury

SCOTT R. DRURY

One of the attorneys for Mark S.

Mike Kanovitz

Scott R. Drury

LOEVY & LOEVY

311 N. Aberdeen, 3rd Floor

Chicago, Illinois 60607

(312) 243-5900

mike@loevy.com

drury@loevy.com

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INTRODUCTION

Objector Mark S. brings this motion seeking: (a) enforcement of the Court’s December 19, 

2019 preliminary injunction (the “Preliminary Injunction”) barring settlement class members 

(“Settlement Class Members”) from filing any claims released pursuant to the proposed settlement 

under consideration by the Court (the “Proposed Settlement”); and (b) to reassign to this Court and 

consolidate with this action the multidistrict litigation matter captioned In re: TikTok, Consumer 

Privacy Litig., No. 1:20-cv-4699 (MDL 2948) (N.D. Ill.) (Lee, J.) (the “TikTok MDL”). The 

requested relief is necessary because: (a) multiple Settlement Class Members have violated the 

Court’s preliminary injunction and filed enjoined claims that are now part of the TikTok MDL;

and (b) Defendants ByteDance Technology Co., Ltd.; Musical.ly Inc.; Musical.ly the Cayman 

Islands Corporation; and TikTok, Inc. (collectively, “Defendants”) now seek to settle those 

enjoined claims in the TikTok MDL, as well as other claims that already are part of the Proposed 

Settlement. Indeed, at the same time Defendants were asking this Court to approve the Proposed 

Settlement, in the TikTok MDL, they were actively seeking to thwart any chance of this case 

moving forward on the merits by trying reach a shadow settlement covering the same claims. 

The Court should not tolerate these games. The Court entered the Preliminary Injunction 

to protect Settlement Class Members and preserve the status quo during the pendency of the 

Court’s consideration of the Proposed Settlement. The Court should now enforce its injunction.

Relatedly, to prevent further gamesmanship and prevent Defendants from moving forward 

with two settlements before different judges that cover the same claims, the Court should find that

the TikTok MDL is related to this case, reassign it to this Court and consolidate it herewith.1

Alternatively, Objector respectfully suggests that the Court should informally coordinate with 

1 A consolidated complaint has not yet been filed on behalf of all plaintiffs in the TikTok MDL. Pursuant 

to Local Rule 40.4(c), Objector attaches hereto as Exhibits 1 and 2, a copy of the consolidated complaints 

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Judge Lee in order to prevent wasteful overlap. Objector respectfully submits that such 

coordination could include allowing this case to proceed on behalf of minors under the age of 13 

and the TikTok MDL to proceed on behalf of children ages 13 and over.

BACKGROUND FACTS

T.K. v. ByteDance Technology Co., Ltd.

On December 3, 2019, T.K. and A.S., minors under the age of 13, filed this action against 

Defendants, alleging violations of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, 

among other claims, on behalf of a putative nationwide class of “[a]ll persons residing in the United 

States who registered for or used the Musical.ly and/or TikTok software application prior to the 

Effective Date when under the age of 13 and their parents and/or legal guardians.” Dkt. 1 at ¶ 61, 

Count I. At base, the complaint alleged that Defendants “surreptitiously tracked, collected, and 

disclosed the personally identifiable information and/or viewing data of children under the age of 

13 – without parental consent” while they used Defendants’ online software application (the 

“TikTok App”). Id. ¶ 1. The complaint further alleged that the Children’s Online Privacy 

Protection Act (“COPPA”), 15 U.S.C. § 6501, et seq., prohibited that conduct. Id. ¶ 11. Quoting 

COPPA, the complaint alleged that “personally identifiable information” broadly meant

“individually identifiable information about an individual collected online.” Id. ¶ 13. 

The Proposed Settlement

On December 5, 2019, Plaintiffs moved for preliminary approval of the Proposed 

Settlement, which they claimed would provide each of the approximately six million class 

members who submitted a valid claim with a pro rata share of $1.1 million net of fees, expenses 

filed on behalf of the broadest number of plaintiffs and which contain the broadest claims. To ensure notice 

to all TikTok MDL plaintiffs, Objector intends to file a copy of this memorandum and related motion on 

the docket of the TikTok MDL. 

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and awards. See Dkt. 5-1 at 25-28 ¶¶ 5.1, 6; Dkt. 5 at 11 (estimating class size). The Proposed 

Settlement was “intended by the parties to fully, finally, and forever resolve, discharge and settle 

the Released Claims . . . .” on behalf of a settlement class that mirrored the class definition above.

See Dkt. 5-1 at 22 ¶¶ 1.2, 2.3. The Proposed Settlement defined “Released Claims” very broadly:

“Released Claims” means any claims, complaints, actions, proceedings, or 

remedies of any kind (including without limitation, claims for attorneys’ fees and 

expenses and costs) whether in law or in equity, under contract or any other subject 

area, or under any statute, rule, regulation, order, or law whether federal, state, or 

local, on any grounds whatsoever, arising from the beginning of time through the 

Effective Date, that were, could have been or could be asserted by the [Plaintiffs 

and class members] arising out of or relating to any acts, facts, omissions or 

obligations, whether known or unknown, whether foreseen or unforeseen, arising 

out of or relating to the Civil Actions or the subject matter of the Complaint.

Id. at 24 ¶ 2.24. The term “Civil Actions” as used in the definition of “Released Claims” meant 

“all of the civil actions, arbitrations, or other legal proceedings that have been, will be, or could be 

initiated by Plaintiffs relating to the subject matter at issue in the Complaint.” Id. at 22 ¶ 2.2.

The Preliminary Injunction

On December 19, 2019, this Court preliminarily approved the Proposed Settlement and 

entered the Preliminary Injunction. See Dkt. 12-13. The Preliminary Injunction enjoined 

Settlement Class Members “from bringing any new alleged class actions asserting any Released 

Claim or attempting to amend an existing action to assert any Released Claim.” Id. at 8 ¶ 16. The 

Preliminary Injunction remains in effect.

The Objection

On May 11, 2020, Objector timely filed his objections to the Proposed Settlement and 

moved to intervene (collectively, the “Objections”). Dkt. 23-24. Objector contended, inter alia,

that the Proposed Settlement was fair, reasonable and adequate because it: (a) failed to obtain any 

meaningful benefit for Settlement Class Members; and (b) released valuable claims without

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adequate consideration. Dkt. 24 at 28-37. Objector highlighted that the paltry settlement amount 

did not: (a) account for the fact that the VPPA provides for statutory damages of $2,500; or (b)

provide adequate compensation for the release of valuable statutory claims, such as those allowed 

under Illinois’ Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. Dkt. 24 at 33-

34. 

In compliance with the Preliminary Injunction, Objector has not filed his own action 

seeking to assert any Released Claim. However, he has submitted a proposed class action 

complaint in connection with his motion to intervene. Dkt. 50-14. 

After the parties fully briefed the Objections, the Court held a hearing over two days during 

which Objector emphasized that: (a) the VPPA claim was worth as much as $15 billion and that

its net expected value was $204 million (Exhibit 3 (Aug. 7, 2020 Tr.) at 42:22-44:9); and (b) the 

Proposed Settlement’s broad release unquestionably included BIPA claims. Exhibit 4 (Aug. 4, 

2020 Tr.) at 18:12-21:7. Plaintiffs’ counsel agreed that the release “could be construed . . . as a 

very broad release.” Ex. 3 at 21:22-22:2. 

During the Objection hearings, defense counsel represented to the Court that the VPPA 

claim lacked merit and that BIPA claims alleged against Defendants in the TikTok MDL were 

sanctionable. Id. at 36:13-19, 54:5-18. As such, defense counsel contended that the Court should 

overrule the Objections.

The Settlement Class Members’ Violations of the Preliminary Injunction

Multiple Settlement Class Members have violated the Preliminary Injunction by asserting 

“Released Claims” in the TikTok MDL. For instance, on August 14, 2020 – just days after this 

Court’s August 7, 2020 hearing wherein Objector highlighted the value of the VPPA claim –

multiple Settlement Class Members amended a previously-filed complaint to assert a VPPA claim

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on behalf of “[a]ll persons who used the TikTok app and/or the Musical.ly app on one or more of 

their mobile devices while residing in the United States” (the “August 2020 Complaint”).2 Ex. 1

¶¶ 156, 161, 172, 178, 184, 196, 288-296. The alleged class includes all Settlement Class Members.

The August 2020 Complaint also realleged BIPA claims that the named plaintiffs first 

asserted after entry of the Preliminary Injunction.3 Id. ¶¶ 99-113, 272-287; see also Exhibit 5 (May 

11, 2020 Complaint). According to the August 2020 Complaint, Defendants4 collected the 

plaintiffs’ and class members’ personally identifiable information – namely, biometric data in the 

form of facial geometry and voice scans – online via the TikTok App without the requisite consent. 

See id.

The TikTok MDL

Violations of the Rules of the Joint Panel on Multidistrict Litigation

On May 15, 2020 – nearly five months after the filing of this case – a § 1407(a) motion to 

transfer and consolidate numerous complaints filed against Defendants for alleged BIPA violations 

was filed with the Joint Panel on Multidistrict Litigation (the “Panel”). Exhibit 7 (§ 1407 transfer 

motion). This case was not among the actions for which transfer was sought (see id.) even though 

it involved “common questions of fact” with the other actions subject to the motion – e.g., whether 

Defendants collected, captured and distributed personally identifiable information of minor 

2 The named plaintiffs filed the August 2020 Complaint in matter number 1:20-cv-4723 (N.D. Ill.) (Lee, J.) 

(see Dkt. 89), not on the MDL docket. The August 20 Complaint identifies numerous plaintiffs under the 

age of 13. See Ex. 1 at ¶¶ 156, 161, 172, 178, 184. Objector does not know the full extent of named plaintiffs 

in the TikTok MDL who are under 13 because the underlying complaints do not always identify the 

plaintiffs’ precise ages.

3 The first complaint alleging BIPA violations against Defendants was not filed until April 2020, well after 

this Court entered its Preliminary Injunction. See Exhibit 6 (N.D. Ill. Plaintiffs’ Response to § 1407 Transfer 

Motion) at 5, n.4 (describing timing of BIPA filings).

4 Some of the underlying cases in the TikTok MDL named “ByteDance, Inc.” as a defendant. While 

ByteDance, Inc. is not a named defendant in this case, that fact does not impact this motion in any way. 

ByteDance, Inc. is represented by the same counsel representing the other Defendants. 

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children without the requisite consent. Indeed, in one of the responses to the motion, a group of 

plaintiffs stated that their actions arose out of “Defendants’ alleged collection and dissemination 

of users’ private data without their consent.” Ex. 6 at 10. That description of their case was almost 

identical to the description of this case as set forth in the complaint herein. Dkt. 1 ¶ 1. 

Due to the common questions of fact between this action and the TikTok MDL and because 

Defendants and their counsel were involved in both matters, the Panel’s Rules required Defendants 

or their counsel to notify the Panel of this case. See JPML Rules 1.1(h), 6.2(d). Defendants were 

aware of their notice obligations under the Rules and, in fact, twice filed notices of related actions 

with the Panel. Exhibit 8 (June 5, 2020 Notice); Exhibit 9 (June 15, 2020 Notice and complaint). 

The second notice informed the Panel of an action alleging “violations of several privacy statutes 

on behalf of a nationwide class of TikTok App users.” Ex. 9. That related action alleged VPPA 

and BIPA violations. See id.

Inexplicably, Defendants never notified the Panel of this case. As such, Defendants 

prevented the Panel from considering all material information when making its decision on 

consolidation and transfer. Relatedly, it does not appear that Defendants have made Judge Lee 

aware of this case.

The Prohibited Settlement in the TikTok MDL

Defendants and various plaintiffs to the TikTok MDL (the “MDL Settling Parties”) have

informed Judge Lee that they have reached a settlement in principle. Exhibit 10 (Aug. 16, 2020 

Joint Status Report) ¶ 4. According to defense counsel, the proposed settlement seeks to resolve 

all claims asserted in the TikTok MDL, including VPPA claims. See Exhibit 11 (email chain).

While defense counsel did not directly state that the purported settlement covers BIPA claims, the 

TikTok MDL includes those claims. As such, the purported settlement and the Proposed 

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Settlement directly overlap, given that the Proposed Settlement covers the VPPA claim alleged in 

the complaint herein and releases BIPA claims.

According to the MDL Settling Parties, they intend to present Judge Lee with the purported 

settlement on or before November 16, 2020. Ex. 10 ¶ 6. While they have made Judge Lee aware 

of their purported settlement, it does not appear that they have disclosed: (a) the overlap between 

the purported settlement and the Proposed Settlement in this case; or (b) that they seek to settle 

claims this Court had enjoined from being asserted in the first instance.

ARGUMENT

I. The Court Should Enforce Its Preliminary Injunction.

A. Legal Standards.

Federal Rule of Civil Procedure 71 allows a non-party beneficiary of an injunction to seek 

enforcement thereof: “When an order grants relief for a nonparty, the procedure for enforcing the 

order is the same as for a party.” Fed. R. Civ. P. 71; see also Zamecnik v. Indian Prairie School 

Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (non-party beneficiary of injunction may seek to 

enforce it); Green v. Sielaff, No. 71 C 1403, 1992 WL 175511, at *2 (N.D. Ill. July 23, 1992) 

(same). “Injunctions often run in favor of unnamed members of a group, and this is proper as long 

as the group is specified.” Zamecnik, 636 F.3d at 879. An injunction need not name the parties 

who may enforce it. Id.

B. Objector May Seek to Enforce the Preliminary Injunction.

As a Settlement Class Member, Objector is a non-party beneficiary of the Preliminary 

Injunction who may seek to enforce its terms. The Preliminary Injunction provides that 

“Settlement Class Members are preliminarily enjoined from bringing any new alleged class actions 

asserting any Released Claim or attempting to amend an existing action to assert any Released 

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Claim.” Dkt. 13 ¶ 16. By enjoining Settlement Class Members from asserting “Released Claims” 

in a new or amended class action, the Preliminary Injunction seeks to protect Settlement Class 

Members by: (a) maintaining the status quo during the pendency of the settlement approval 

process; and (b) preventing enterprising Settlement Class Members from attempting to obtain 

different relief or otherwise thwart the settlement via an action in a different venue and/or before 

a different judge. 

Further, by maintaining the status quo, the Preliminary Injunction prevents that possibility 

that Settlement Class Members will be confronted with multiple competing settlement notices or 

will have to file objections in multiple forums. Moreover, by preserving the status quo, the 

Preliminary Injunction was intended to prevent the situation that has arisen here, where an objector 

raises valid objections to a defective settlement only to have others seek to reap the spoils of the 

objector’s efforts in a different forum. 

Even if Objector could not seek to enforce the Preliminary Injunction, the Court could 

enforce it by issuing show-cause orders to Settlement Class Members who have violated its terms. 

See United States v. Vitek Supply Co., 151 F.3d 580, 583 (7th Cir. 1998) (show-cause orders 

provide offending parties with notice of violations of orders and offer a hearing). Objector 

respectfully submits that in connection with enforcing the Preliminary Injunction, the Court may 

wish to issue show-cause orders.

C. The Court Should Enforce the Preliminary Injunction.

Multiple named plaintiffs in the TikTok MDL are Settlement Class Members – i.e., they 

are children under 13 residing in the United States who registered for or used the TikTok App. See 

Dkt. 5-1 at 22 ¶ 2.3; see also, e.g., Ex. 1 ¶¶ 156, 161, 172, 178, 184. In violation of the Preliminary 

Injunction, those Settlement Class Members have brought “new alleged class actions asserting 

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Released Claims” and/or attempted “to amend an existing action to assert any “Released Claim.” 

See Dkt. 13 ¶ 16. As discussed above, various Settlement Class Members recently amended their 

class action complaint to allege violations of the VPPA. See Ex. 1 at Count 10. Given the VPPA’s 

centrality to this case, no credible claim can be made that the Preliminary Injunction does not 

preclude Settlement Class Members from asserting such a claim.

The same is true of the BIPA claims. As Objector has argued since he filed his Objections, 

the Proposed Settlement’s broad release encompasses BIPA claims. See Dkt. 24 at 31, 33. Given 

that BIPA prohibits the collection and distribution of biometric data – the most sensitive type of 

personally identifiable information – without consent, see 740 ILCS 14/15(b) and (d), any 

contention that the Proposed Settlement’s broad release does not cover those claims is absurd.

Indeed, the general descriptions of this matter and the TikTok MDL are largely the same:

THIS CASE: “Defendants tracked, collected, and disclosed the personally 

identifiable information and/or viewing data of children under age 13 – without 

parental consent” while the children used the TikTok App. Dkt. 1 ¶ 1.

TIKTOK MDL: “Defendants, through the TikTok app, collected, captured, 

obtained, stored, and upon information and belief, disclosed . . . Illinois resident 

minor TikTok users’ biometric information” . . . “without seeking and obtaining 

consent . . . from such impacted minors and their parents or lawful guardians.” See 

Ex. 2 ¶¶ 8, 11. 

Notably, the broad definition of “personally identifiable information” alleged in the complaint 

herein necessarily includes children’s biometric information. See Dkt. 1 ¶ 13. 

After the entry of the Preliminary Injunction on December 19, 2019, Settlement Class 

Members were prohibited from asserting any VPPA or BIPA claims, among other claims, against 

Defendants. It follows that Defendants were and are prohibited from settling those enjoined claims, 

given that they should not have been asserted in the first instance. Thus, Objector respectfully 

requests that the Court enforce its Preliminary Injunction and: (a) preclude any Settlement Class 

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Members from further pursuing enjoined claims already filed or from filing new enjoined claims; 

and (b) preclude Defendants from settling any enjoined claims.

II. The Court Should Reassign the TikTok MDL to This Court and Consolidate It With 

This Case or, Alternatively, It Should Informally Coordinate with Judge Lee to 

Prevent Overlap.

While enforcement of the Preliminary Injunction will protect the status quo while the Court 

considers the Proposed Settlement, to ensure efficiency moving forward and prevent the possibility 

of Defendants presenting two settlements to different judges that cover the same claims, the Court 

should deem the TikTok MDL related to this case, reassign it to this Court and consolidate it 

herewith. Alternatively, the Court should informally coordinate with Judge Lee to avoid wasteful 

overlap.

A. Legal Standards.

“[D]istrict courts have the inherent authority to manage their dockets and courtrooms with 

a view toward the efficient and expedient resolution of cases.” Dietz v. Bouldin, 136 S. Ct. 1885, 

1892-93 (2016). Among these inherent powers is the power to control the transfer and assignment 

of cases.” Capps v. Drake, 894 F.3d 802, 805 (7th Cir. 2018). 

Local Rule 40.4 sets forth a two-step process for relating and reassigning cases. First, the 

Court determines if the cases are “related” – a requirement that is satisfied “if one or more of the 

following conditions are met: (1) the cases involve the same property; (2) the cases involve some 

of the same issues of fact or law; (3) the cases grow out of the same transaction or occurrence; or 

(4) in class action suits, one or more of the classes involved in the cases is or are the same.” L.R. 

40.4(a). Second, if the cases are “related,” they may be reassigned to the judge overseeing the 

lowest-numbered case provided that:

(1) both cases are pending in this Court; (2) the handling of both cases by the same 

judge is likely to result in a substantial saving of judicial time and effort; (3) the 

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earlier case has not progressed to the point where designating a later filed case as 

related would be likely to delay the proceedings in the earlier case substantially; 

and (4) the cases are susceptible of disposition in a single proceeding. 

L.R. 40.4(b). For cases to be related under Local Rule 40.4(a), they need only involve some of the 

same issues of fact or law; there need not be complete identity of issues. Gautreaux v. Chicago 

Hous. Auth., No. 66-C-1459, 2013 WL 5567771, at *2 (N.D. Ill. Oct. 9, 2013).

Local Rule 40.4 “promotes efficient use of judicial resources by minimizing duplication of 

effort on cases that have a great deal in common.” Glob. Patent Holdings, LLC v. Green Bay 

Packers, Inc., No. 00 C 4623, 2008 WL 1848142, at *2 (N.D. Ill. Apr. 23, 2008). Indeed, the 

Seventh Circuit has held that “[b]y far the best means of avoiding wasteful overlap when related 

suits are pending in the same court is to consolidate all before a single judge. Rules of the Northern 

District permit just such a process.” Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th 

Cir. 1999). 

Similar to Local Rule 40.4, Federal Rule of Civil Procedure 42(a) allows a court to 

consolidate cases if they “involve a common question of law or fact.” Fed. R. Civ. P. 42(a)(2). 

Where related suits “are pending in the same court,” the “best means of avoiding wasteful overlap 

. . . is to consolidate all before a single judge.” Hedick v. Kraft Heinz Co., No. 19-cv-1339, 2019 

WL 4958238, at *3 (N.D. Ill. Oct. 8, 2019). 

In determining whether to consolidate related actions, “a court should consider whether the 

proposed consolidation would promote convenience and judicial economy . . . and whether it 

would cause prejudice to any party.” Sylverne v. Data Search N.Y., Inc., No. 08 C 31, 2008 WL 

4686163, at *1 (N.D. Ill. May 28, 2008) (internal citations omitted). Consolidation is proper where 

it will ease the burden on the court and the parties of having separate dockets, separate briefs and 

separate orders for related suits. See Blair, 181 F.3d at 839; Hedick, 2019 WL 4958238, at *3.

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Importantly, “consolidation of separate actions presenting a common issue of law or fact 

is permitted under Federal Rule 42 as a matter of convenience and economy in judicial 

administration.” Wright & Miller, Fed. Prac. & Proc. Civ. § 2383 (3d ed.), Consolidation—

Discretion of Court. As such, “[t]he district court is given broad discretion” to determine whether 

consolidation “would be desirable,” and the “consent of the parties is not required.” Id. Thus, a

“court can in appropriate circumstances consolidate cases before it . . . , whether or not the parties 

want the cases consolidated . . . .” Connecticut Gen. Life Ins. Co. v. Sun Life Assur. Co. of Canada, 

210 F.3d 771, 774 (7th Cir. 2000); see also Smith v. N.E.. Ill. Univ., No. 98 C 3555, 2002 WL 

377725, at *6 (N.D. Ill. Feb. 28, 2002) (“It is within the court's discretionary power to order 

consolidation, sua sponte, even if all parties object[.]”).

B. Relation, Reassignment and Consolidation Are Proper.

1. The Matters Are Related.

Whether by this motion or sua sponte, the Court should: (a) find that the TikTok MDL is 

related to this case; (b) reassign it to this Court; and (c) consolidate it herewith. The TikTok MDL 

and this case easily satisfy Local Rule 40.4’s relatedness test. The matters: (a) involve overlapping 

factual and legal issues, e.g., whether Defendants surreptitiously and unlawfully collected and 

distributed minor children’s personally identifiable information without consent, and whether that 

conduct violated various federal and state statutes; and (b) grow out of the same transaction or 

occurrence – i.e., minor children’s use of the TikTok App during which Defendants unlawfully 

collected their personally identifiable information without parental consent. Moreover, while the 

matters do not involve identical classes, the nationwide class in the TikTok MDL includes all class 

members in this action. Finally, the matters involve the same property, namely, the minor 

children’s privacy rights.

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2. The TikTok MDL Should Be Reassigned to This Court.

Analysis of the reassignment factors reveals that the TikTok MDL should be reassigned to 

this Court. First, both cases are pending in the Northern District of Illinois. Second, the handling 

of both matters by the same judge is likely to result in a substantial saving of judicial time and 

effort given the overlapping factual and legal issues and overlapping classes. Indeed, to the extent 

the parties to the TikTok MDL actually present a settlement proposal, allowing this Court to review 

that proposal makes the most sense given that it already has held a hearing on the overlapping 

Proposed Settlement. Third, this case has not progressed to the point where designating the TikTok 

MDL as related would substantially delay this case’s proceedings. In fact, given that this Court is 

actively considering the fairness and adequacy of the Proposed Settlement, it would be beneficial

and efficient to consider both settlements at once. If the settlements are not approved, both matters 

are in their early stages. Finally, as made clear throughout, the cases are susceptible to disposition 

in a single proceeding given the identity of factual and legal issues and the overlapping Defendants.

3. The Court Should Consolidate the TikTok MDL with This Case.

The grounds supporting relatedness and reassignment also support consolidation of this 

matter and the TikTok MDL. The identity of issues and parties ensures that consolidation will not 

result in any prejudice.

4. Alternatively, this Court Should Informally Coordinate with Judge 

Lee.

Should the Court not wish to relate, reassign and consolidate the TikTok MDL with this 

matter, Objector respectfully suggests that it should informally coordinate with Judge Lee to 

prevent wasteful overlap. Objector respectfully submits that a logical way to coordinate these 

matters would be to allow this case to proceed on behalf of children under 13, while the TikTok 

MDL proceeds on behalf of children 13 and over. Coordination of discovery is also possible.

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5. Defendants’ Violations of the Panel’s Rules Weigh in Favor of 

Reassignment and Consolidation.

Objector is aware that 28 U.S.C. § 1407(b) provides for the judge to whom the Panel 

assigns a multidistrict matter to handle the matter. 28 U.S.C. § 1407(b). Because Defendants’ 

violated the Panel’s Rules by failing to notify it of this case, the Panel made its decision in the 

absence of material information. While Objector does not in any way question Judge Lee’s ability 

to preside over the TikTok MDL, Objector respectfully submits that the Court should revert to 

Local Rule 40.4 and Federal Rule of Civil Procedure 42(a) in determining the proper assignment 

of the TikTok MDL. 

The Panel’s Rules require parties or their counsel to promptly notify the Panel of any 

potential tag-along actions to the actions under consideration: “Any party or counsel in a new 

group of actions under consideration for transfer under Section 1407 shall promptly notify the 

Clerk of the Panel of any potential tag-along actions in which the party is also named or in 

which that counsel appears.” JPML Rule 6.2(d) (emphasis added). The Rules define a “tag-along 

action” as a “civil action pending in a district court which involves common questions of fact with 

either (1) actions on a pending motion to transfer to create an MDL or (2) actions previously 

transferred to an existing MDL, and which the Panel would consider transferring under Section 

1407.” JPML Rule 1.1(h). 

Here, at minimum, this case was a tag-along action that Defendants and their counsel were 

required to disclose. As discussed throughout, this case shares common questions of fact with the 

TikTok MDL. Moreover, Defendants notified the Panel of another case against Defendants that 

alleged “violations of several privacy statutes,” including the VPPA. See Ex. 8. Thus, Defendants 

have no excuse for their failure to notify the Panel of this matter. 

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Notably, Defendants’ inaction has benefitted them by allowing them to continue 

advocating for the deficient settlement in this case, while at the same time working to preclude 

ongoing litigation of the VPPA claim by seeking to settle it in the TikTok MDL. The Court should 

not allow Defendants to game the system in this manner. As a matter of policy, failure to transfer 

the TikTok MDL to this Court will encourage the type of wasteful judge shopping that seemingly 

is at play here. Parties should not be encouraged to withhold material information that works to 

prejudice the courts and litigants who play by the rules.

Finally, during the hearings on the Objections, Plaintiffs’ counsel baselessly accused 

Objector’s counsel of plotting to take control of the TikTok MDL. That has never been the case. 

At all times, Objector has merely been trying to protect his and class members’ rights. In line with 

that objective, Settlement Class Members’ violation of the Preliminary Injunction and Defendants’ 

efforts to resolve the enjoined claims in the TikTok MDL have necessitated this motion. Had 

Plaintiffs sought the needed relief, Objector would not have had to make this filing.

CONCLUSION

For the foregoing reasons, Objector Mark S. respectfully requests that the Court: (a)

enforce its Preliminary Injunction; (b) find that the TikTok MDL is related to this case; (c) reassign 

the TikTok MDL to this Court; and (d) consolidate the TikTok MDL herewith. As an alternative 

to reassignment and consolidation, Objector respectfully requests that the Court informally 

coordinate with Judge Lee to ensure the fair and proper administration of this case and the TikTok 

MDL.

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CERTIFICATE OF SERVICE

I, Scott R. Drury, an attorney, hereby certify that, on September 9, 2020, I filed the 

foregoing document using the Court’s CM/ECF system, which effected service on all counsel of 

record.

/s/ Scott R. Drury

One of the attorneys for Mark S.

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