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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: TIKTOK, INC. CONSUMER

PRIVACY LITIGATION

MDL No. 2948

Master Docket No. 20 C 4699

This Document Relates to All Cases

Judge John Z. Lee

Magistrate Judge Sunil R. Harjani

REPLY BRIEF IN SUPPORT OF OBJECTION OF BRIAN BEHNKEN 

AND JOSHUA DUGAN TO PROPOSED CLASS ACTION SETTLEMENT

I. Introduction.

Plaintiffs filed a response (“Response”) to the Objection of Brian Behnken and Joshua 

Dugan, and 957 other individuals (“Arbitration Claimants”) indicating that Arbitration Claimants 

have no standing to object to the settlement. Subsequently, Defendants confirmed that they would 

not engage in TikTok’s Terms of Service (“TOS”) dispute resolution process with Arbitration 

Claimants and refused to exclude them from the Settlement Agreement1 or permit them to opt-out 

through counsel. Defendants admitted that they were seeking to use the opt-out requirements to 

shield themselves from arbitration claims, breaching the very same dispute resolution clause they 

claim they would enforce to bar this case from proceeding as a class action. The Arbitration 

Claimants have standing to object to onerous opt-out procedures that would burden their right to 

arbitration if the Court were to approve them.

1 “Settlement Agreement” refers to the Settlement Agreement and Release filed in connection 

with Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement filed on February 

25, 2021. See Doc. #122. 

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As a preliminary matter, if Plaintiffs’ and Defendants both believe that the Arbitration 

Claimants do not have standing and/or are excluded from the Settlement Class then they could 

agree that the Arbitration Claimants’ will be opted-out through counsel. This would not affect the 

settlement in any material way. In fact, permitting people to opt-out through counsel who have 

indicated an intent to pursue claims in arbitration would only increase the amount available in the 

Settlement Fund for class members who want to participate. Instead, Plaintiffs spend thirteen (13)

pages explaining that Arbitration Claimants should now also be required to comply with a 

burdensome opt-out procedure of a class action that was specifically excluded as a means of 

recourse in their contract with Defendants. It is unclear why Plaintiffs have such an interest in 

forcing Arbitration Claimants, and other class members who may wish to opt-out, into the class. 

Contrary to the position taken by Plaintiffs, Arbitration Claimants are not seeking to disrupt 

the settlement for their counsel to encourage people to opt-out. Instead, Arbitration Claimants are 

protecting their rights to invoke arbitration under TikTok’s TOS. The need for this is obvious as 

Defendants have now confirmed they will not engage in the TOS dispute resolution procedures 

until Arbitration Claimants comply with the opt-out requirements. The Court should modify these 

requirements to permit Arbitration Claimants, and anyone else wishing to opt-out and pursue 

arbitration, to do so through counsel and without providing extraneous information not required 

by the TOS.

II. The Arbitration Claimants Have Standing to Object and Are Not Exerting “Undue 

Influence.” 

Plaintiffs’ incorrectly argue the Arbitration Claimants lack standing because (i) class 

members who opt-out of the class have no standing, and (ii) “non-settling parties do not have 

standing to object to a settlement between other parties.” See Response at p. 2 (relying on Agretti 

v. ANR Freight Sys, Inc., 982 F.2d 242, 246 (7th Circ. 1992)). However, preliminary approval has 

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not been granted, and TikTok has refused to exclude Arbitration Claimants from the class. The 

Arbitration Claimants have standing to object.

Agretti is distinguishable. In Agretti, a non-settling defendant, ANR, objected to the 

settlement agreement between the plaintiff and another defendant. The district court ruled that 

ANR lacked standing because it failed to show plain legal prejudice that would affect ANR’s legal 

rights if the settlement was approved. Specifically, the court determined that ANR had all its rights 

under the contract and could protect those rights through contractual provisions or legal action, 

and further determined that ANR was not precluded from enforcing any of its rights. The Agretti

Court explained that a party would, however, show “plain legal prejudice if the settlement strips 

the party of a legal claim or cause of action . . . ” Id. at 247.

Here, the Arbitration Claimants have standing to object because the opt-out procedures the 

parties are seeking to impose would require them to comply with requirements that are not a part 

of their contract with TikTok before they can bring claims in arbitration. Objection at 11. If 

Arbitration Claimants do not opt-out, they would be bound by the release, as currently drafted, 

which encompasses “all claims, complaints, actions, proceedings, or remedies of any kind, whether 

known or unknown...arising from or related to the Civil Actions or the collection and use of any 

user data...that were, could have been, or could be asserted by” class members. Dkt. 122-1 § 2.30. 

Plainly, the Arbitration Claimants have standing to object because approval of this settlement 

affects their ability to bring their claim or cause of action in their chosen forum. 

Further, the Arbitration Claimants are not exerting “undue influence” on the rights of others 

as Plaintiffs’ argue. See Response at pp. 2-3. Arbitration Claimants are simply seeking 

confirmation that their right to pursue individual arbitration against Defendants is unaffected by 

the Settlement Agreement, if approved by this Court. If Plaintiffs and Defendants agree that the 

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class members wishing to pursue their cases in arbitration can opt-out through counsel, which they 

do not, then Arbitration Claimants would withdraw their objection. 

III. The Arbitration Claimants’ Reliance on the Bigger Case is Not Misplaced.

Plaintiffs do not meaningfully respond to the Arbitration Claimants’ argument that this 

Court cannot approve a settlement that would invalidate their arbitration rights. Objection at 9-

10. Instead, they argue that Arbitration Claimants’ reliance on Bigger v. Facebook, Inc., 947 F.3d 

1043 (7th Cir. 2020), is misplaced because in Bigger it was a defendant, not a class member, who 

sought to enforce an arbitration provision. See Response at p. 3. However, the fact that the 

Arbitration Claimants, and not TikTok, seek to enforce their right to arbitrate their claims does not 

alter the analysis of Bigger. Under controlling Supreme Court precedent, Defendants’ TOS

containing a mandatory arbitration clause is an enforceable contract requiring TikTok users to 

pursue all claims in arbitration. See Arbitration Claimants’ Objection at pp. 2-7, 9-13. These 

obligations are mutual. Under the TOS, with limited exceptions, “[t]his mandatory arbitration 

agreement applies equally to you and TikTok.” See TOS § 11. 

In Bigger, the Seventh Circuit expressly recognized that it was the liberal federal policy 

favoring all arbitration agreements, not just those included in employment agreements, which 

precluded notice to anyone bound by an arbitration clause. Bigger, 947 F.3d at 1047. There is no 

dispute that a valid arbitration agreement exists between Defendant and the Arbitration Claimants. 

See Arbitration Claimants’ Objection at pp. 3-7. In fact, neither Plaintiffs nor Defendants have 

challenged the existence, enforceability, or validity of Arbitration Claimants’ arbitration 

agreements. This Court is bound by Bigger to conclude that the existence of a valid arbitration 

agreement between the Arbitration Claimants and Defendants prohibits notice to the Arbitration 

Claimants and requires their exclusion from the Settlement Agreement.

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IV. The Intuit Decision, Not CenturyLink, Is Instructive. 

Plaintiffs completely ignore the recent decision in Intuit2 and focus exclusively on the 

District of Minnesota’s decision in CenturyLink.

3 CenturyLink, however, is inapposite because it 

arose after preliminary approval and because it involved different opt-out procedures. In 

CenturyLink, the court declined the request by arbitration counsel to opt-out their clients through 

a single mass opt-out letter. This single letter opt-out request was modeled after a letter granted 

and endorsed by the Eighth Circuit in In re Piper Funds, F.3d 298, 304 (8th Cir. 1995). While the 

District of Minnesota denied the request and directed all opt-out requests be accompanied by an 

individual signature, Plaintiffs conveniently leave out the most important distinguishing fact: the 

court in CenturyLink permitted electronic signatures, not a “wet-ink” signature, as this Court is 

being asked to approve in the Settlement Agreement. See CenturyLink, 2020 WL 3512807, at 5. 

Additionally, unlike this case, the defendant requested additional information needed to evaluate 

and resolve each claim, including the account numbers for all claimants identified in the 

correspondence. Because counsel did not provide this information, the CenturyLink court refused 

to permit submission of a single, mass opt-out letter. Id., at *5-6. 

The decision in Intuit and the well-reasoned explanation by Judge Breyer in declining to

follow CenturyLink makes this distinction:

Plaintiffs and Intuit rely heavily on In re CenturyLink Sales Practice Litig. See

2020 WL 869980 (D. Minn. Feb. 21, 2020); 2020 WL 3512807 (D. Minn. June

29, 2020). That out-of-district case does not persuade the Court to approve this

settlement. There, the opt out procedure did not require a wet-ink signature or a

case number for parallel proceedings like arbitrations. See Order Preliminarily

Approving Class Settlement at 5, In re CenturyLink Sales Practice Litig. No. 17

md-02795-MJD-KKM (Jan. 24, 2020), ECF No. 528.

2 Arena v. Intuit, 2021 WL 83425 (N.D. Cal. March 5, 2021) (hereinafter “Intuit”).

3 In re Centurylink Sales Practices & Sec. Litig., No. CV 17-2832, 2020 WL 3512807, at *3 (D. 

Minn. June 29, 2020) (hereinafter “CenturyLink”).

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Arena v. Intuit, 2021 WL 83425, at *10 (N.D. Cal. March 5, 2021) (emphasis added). Like the 

instant matter, in Intuit, thousands of consumers attempted to enforce their right to arbitrate. Intuit 

reached a class action settlement with the same class plaintiffs it had previously compelled to 

arbitration. This settlement included an injunction against arbitrations and a requirement that class 

members comply with burdensome opt-out procedures. The court refused to grant preliminary 

approval, finding the settlement did not meet basic standards of fairness, reasonableness, or 

adequacy. With respect to the opt-out requirements:

The Court concludes that the opt out requirements in the proposed settlement are 

unduly burdensome given the unique circumstances of this litigation . . . requiring 

these class members to opt out by mailing a hard copy letter with a “wet-ink” 

signature serves little purpose but to burden those who wish to opt out. In a world 

where Intuit can not only administer settlement claims electronically, but also 

facilitate safe, legal tax-filing electronically, Intuit can assuredly process opt outs 

electronically. If electronic signatures are enough for Intuit and the IRS during 

tax season, they should be enough for Intuit here. Id.

Id. (emphasis added). The court further justified its decision by explaining: 

Other class action settlements featuring wet-ink signature and mail-in requirements 

show why such requirements are inappropriate here. For example, this Court 

approved an opt out procedure requiring class members to mail “a signed, written 

request” during the Volkswagen clean diesel litigation. In re Volkswagen “Clean 

Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., No. MDL 2672 CRB (JSC), 

2017 WL 672727, at *10 (N.D. Cal. Feb. 16, 2017). Those class members, however, 

would be opting out of a settlement that awarded claimants consistent with their 

full “possible recovery” if they proceeded to litigate—typically at least thousands 

of dollars. Id. at *19. Similarly, another Northern District of California court 

approved opt out procedures requiring class members to “personally sign” their opt 

out statements “in ink.” del Toro Lopez v. Uber Techs., Inc., No. 17-CV-06255-

YGR, 2018 WL 5982506, at *21 (N.D. Cal. Nov. 14, 2018). Those class members 

would be opting out of a settlement that awarded roughly $23,800 per class 

member. del Toro Lopez v. Uber Techs., Inc., No. 17-CV-06255-YGR Mot. For 

Preliminary Approval (dkt. 33) at 19. In both instances, opting out would be 

financially risky at best and economically irrational at worst. And in those 

circumstances, relatively burdensome procedures would promote careful 

deliberation before class members made a choice that could haunt them financially. 

Here the inverse is true. 

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Id. Like Intuit, the “wet-ink” signature requirement in the Proposed Settlement Agreement serves 

little purpose but to burden the Arbitration Claimants who seek to opt-out. And, while the prospect 

of recovering $1,000 or $5,000 per claim in arbitration may not be significant to counsel, it is a 

much better deal than the low amount class members are likely to receive under the Settlement

Agreement. At the very least, class members should be entitled to make this decision unimpeded 

by burdensome requirements to provide wet-ink signatures or other information not required by 

the TOS. 

Conspicuously missing from Plaintiffs’ Response and their 47-page Motion for 

Preliminary Approval of the Settlement Agreement is an explanation for why it is in the best 

interests of the class to impose burdensome opt-out requirements. There is no justified reason for 

the onerous requirement of submitting a wet-ink opt-out request by U.S. mail.

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V. Counsel Has Not Engaged in Mass Solicitation of Opt-Outs or Misleading, Coercive, 

or Inappropriate Communications.

Plaintiffs attempt to rationalize the burdensome opt-out requirements by attacking counsel 

and citing to settlements in which counsel have previously been involved, such Facebook BIPA. 

Plaintiffs admit that Facebook did not have an arbitration clause to enforce, and the underlying 

factual contentions of the Facebook BIPA settlement agreement are completely different than the 

circumstances in this case. See Motion for Preliminary Approval at pp. 24-28 [Dkt. 122 at ECF 

34]. While there may be good reasons in some class action cases to impose more stringent optout requirements, the differences between this case and Intuit on the one hand, and Facebook BIPA

on the other, show why there is no one-size-fits-all approach to opt-out requirements.

4 Illinois law recognizes that electronic signatures are just as reliable and valid as a wet-ink 

signature. See 5 ILCS 175/5-120 (“Where a rule of law requires a signature, or provides for certain 

consequences if a document is not signed, an electronic signature satisfies that rule of law.”). 

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Plaintiffs’ suggestion that Labaton may have breached ethical duties and/or obtained 

exclusion requests based on misleading solicitations is unfounded and without merit. Labaton did

not engage in “mass solicitation” of opt-outs, since the settlement has not been preliminarily 

approved yet. See Response at 4. Labaton began advertising and retaining clients interested in 

pursuing arbitration claims in early January. Plaintiffs’ Motion for Preliminary Approval of Class 

Action Settlement was filed on February 25, 2021. Dkt. 122. Before clients retain Labaton’s 

services, they are informed of the differences between pursuing their claims through individual 

arbitration and as part of a class action. Clients also received information about the pending class 

actions against Defendants. Moreover, if the Proposed Settlement Agreement is approved, 

Labaton intends to inform clients about the settlement and they will be asked to make an 

affirmative decision as to whether they wish to opt out. 

Thus, Plaintiffs’ suggestion that Labaton is “resurrect[ing] the playbook Levi used against 

it and Edelson” is wrong. Response at 5. In Facebook BIPA, Levi & Korsinsky (“Levi”) began 

advertising to sign up potential claimants after the class was certified and the class settlement had 

been preliminarily approved. Response Ex. B at p. 4. Labaton and Class Counsel met-andconferred with Levi requesting they remove the advertisements, which provided no indication of 

the entity they were referring to or that they were opting out of the class settlement. Response Ex. 

A at p. 2. Levi refused. Here, Labaton began advertising before a settlement agreement was filed 

and long before class certification, the advertisements specifically referenced TikTok, and 

Plaintiffs have never met and conferred with Labaton regarding any of the advertisements. 

Finally, Facebook BIPA did not involve an arbitration clause. Similarly, public company 

securities litigation cases in which Labaton has been involved do not involve arbitration clauses. 

Response at 7 n.3. This distinction goes to the heart of this Objection. Plaintiffs admit that a 

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threshold issue in this case was the likelihood that TikTok would be able to enforce its mandatory 

arbitration clause. TikTok should not be permitted to impose a sweeping, binding arbitration 

clause with a class action waiver, and then use the class action device to eliminate or burden any 

attempts by individuals to assert their rights to arbitration. Arena, 2021 WL 834253, at *10; 

Abernathy v. DoorDash, Inc., 438 F. Supp. 3d 1062, 1068 (N.D. Cal. 2020) (“No doubt, DoorDash 

never expected that so many would actually seek arbitration. Instead, in irony upon irony, 

DoorDash now wishes to resort to a classwide lawsuit, the very device it denied to the workers, to 

avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”).

CONCLUSION

If this Court grants Preliminary Approval of the Settlement, it should exclude the 

Arbitration Claimants and permit other class members to opt-out, including through counsel, and 

pursue their rights under Section 11 of the TikTok Terms of Service. 

Dated: April 15, 2021

/s/____Michael D. Smith______

Michael D. Smith (6210109)

Law Office of Michael D. Smith, P.C.

231 South LaSalle Street

Suite 2100

Chicago, Il 60604

Tel: (312) 546-6138

msmith@smithlawchicago.com

Jonathan Gardner (pro hac vice)

Melissa H. Nafash (pro hac vice)

Jonathan D. Waisnor (pending pro hac vice)

LABATON SUCHAROW LLP

140 Broadway

New York, NY 10005

Tel: (212) 907-0700

Fax: (212) 818-0477

jgardner@labaton.com

mnafash@labaton.com

jwaisnor@labaton.com

Attorneys for Objectors and the Arbitration Claimants

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