EXHIBIT D

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BEFORE THE UNITED STATES JUDICIAL PANEL

ON MULTIDISTRICT LITIGATION

IN RE TIKTOK, INC., CONSUMER . MDL Number 2948

PRIVACY LITIGATION . July 30, 2020

- - - - - - - - - - - - - - - 1:20 p.m.

TRANSCRIPT OF ORAL ARGUMENT

BEFORE: HONORABLE KAREN K. CALDWELL, CHAIR

United States District Court

Eastern District of Kentucky

HONORABLE ELLEN SEGAL HUVELLE

United States District Court

District of Columbia

HONORABLE R. DAVID PROCTOR

United States District Court

Northern District of Alabama

HONORABLE CATHERINE D. PERRY

United States District Court

Eastern District of Missouri

HONORABLE NATHANIEL M. GORTON

United States District Court

District of Massachusetts

HONORABLE DAVID C. NORTON

United States District Court

District of South Carolina

HONORABLE MATTHEW F. KENNELLY

United States District Court

Northern District of Illinois

Official Court Reporter: SARA A. WICK, RPR, CRR

U.S. Courthouse, Room 4704-B

333 Constitution Avenue Northwest

Washington, D.C. 20001

202-354-3284

Proceedings recorded by stenotype shorthand.

Transcript produced by computer-aided transcription.

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APPEARANCES:

For Plaintiff A.S.: ELIZABETH A. FEGAN, ESQ.

Fegan Scott, LLC

150 South Wacker Drive, 24th Floor

Chicago, Illinois 60606

For Plaintiff E.R.: KATRINA CARROLL, ESQ.

Carlson Lynch LLP

111 West Washington Street

Suite 1240

Chicago, Illinois 60602

For Plaintiffs Misty Hong,

et al.: EKWHAN E. RHOW, ESQ.

Bird, Marella, Boxer, Wolpert,

Nessim, Drooks, Lincenberg &

Rhow, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067

For Plaintiff C.H.: MICHAEL GERVAIS, ESQ.

Susman Godfrey L.L.P.

1900 Avenue of the Stars, Suite 1400

Los Angeles, California 90067

For Defendants TikTok,

Inc., et al.: ANTHONY J. WEIBELL, ESQ.

Wilson Sonsini Goodrich & Rosati

650 Page Mill Road

Palo Alto, California 94304

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P R O C E E D I N G S

(All participants present via video conference.)

JUDGE CALDWELL: The panel will now hear MDL Number

2948, TikTok Consumer Privacy Litigation.

MS. FEGAN: Good afternoon, Your Honors. Good

afternoon, Judge Huvelle. It's nice to see you.

I am speaking today on behalf of the movant, A.S., in the

Southern District of Illinois. We also have a case pending in

the Northern District of Illinois on behalf of Darcy Tellone and

her minor children.

Your Honor, these cases are about a popular social media

app. largely used by minors to post dances and other videos. 18

of the 19 cases pending allege a violation of the Illinois

Biometric Info Privacy Act. This particular act was enacted in

2008 and is the only one of its kind in the nation that provides

for a private right of action. All but three of the pending

cases allege a BIPA violation, and 31 of the 36 plaintiffs in

the cases across the country are Illinois plaintiffs.

No party opposes consolidation or centralization, and the

question, therefore, is where these cases will go. I'm

advocating today for the Southern District of Illinois. The

case there is pending before Chief Judge Rosenstengel.

The Hong plaintiffs in California moved to intervene in

this case and moved to dismiss it. Judge Rosenstengel rejected

that attempt, and she specifically said a number of things which

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demonstrate that these cases belong in Illinois, either before

Judge Lee in Chicago or before her in the Southern District.

She said this action was brought by Illinois plaintiffs,

under Illinois law, in Illinois, and the Court does not see why

a court in California is any better place to adjudicate this

action. She said that this Court's more familiar with BIPA than

a court in California and would be significantly less convenient

for the majority of the Illinois plaintiffs. And finally, she

concluded that this Court has a strong interest in applying

Illinois law to protect Illinois citizens and is not inclined to

entertain the proposed motions that would adjudicate these

claims in California.

We believe that the Southern District of Illinois is an

appropriate forum for these cases. There are not currently any

pending MDLs in the Southern District compared to the other

districts before the panel. In the alternative, we would

support Northern District of Illinois, but under no circumstance

does it make sense to send this Illinois-based matter to

California.

Thank you.

JUDGE CALDWELL: Thank you.

Counsel -- I mean panel members, do you have questions for

Ms. Fegan? Yes, Judge Perry.

JUDGE PERRY: What about the caseload in the Southern

District? I believe there's still two judicial vacancies.

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There are only -- how many active district judges are there?

They have very high numbers. Do you believe that that

district has the bandwidth at the current time to handle this

case?

MS. FEGAN: You are correct, Your Honor. There are

only three active judges, I believe. But Judge Rosenstengel has

indicated, I believe, that she has the capacity and that she has

a strong interest in applying Illinois law.

The alternative would be Judge Lee in Chicago, who we would

also support and who we have litigated before. I do believe

that he currently has at least one MDL pending before him. But

either alternative we would be comfortable with.

JUDGE CALDWELL: Any other panel members?

Thank you very much, Ms. Fegan, for your argument.

MS. FEGAN: Thank you very much.

JUDGE CALDWELL: The Court will now recognize Katrina

Carroll. Yes, ma'am.

MS. CARROLL: Hello, panel. Can everybody hear me?

JUDGE CALDWELL: Yes.

MS. CARROLL: Okay. Great. I am Katrina Carroll. I

am with the firm Carlson Lynch. I represent the plaintiff E.R.

in the Northern District of Illinois, along with six other

plaintiffs in our consolidated action, and I am here making the

pitch for the Northern District of Illinois.

As Ms. Fegan just said, this case is Illinois centric. The

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vast majority of the cases comprising the MDL, 16 of the 19, are

exclusively brought as Illinois statutory state law claims. And

I don't need to go any further on what Ms. Fegan just said.

What I wanted to tell you is Illinois, the Northern

District of Illinois is the natural center of gravity here.

There are seven cases pending in this district, more than in the

Southern District, but together, there are more Illinois cases

than in the Northern District of California.

In terms of the natural center of gravity, this case has

been very streamlined and has been proceeding on an incredibly

organized track and being overseen by Judge Lee. Judge Lee

appointed me as interim lead counsel pending these MDL

proceedings. I have been able to successfully coordinate with

counsel in the related cases in my district and also with

Ms. Fegan and the other counsel in the Southern District of

Illinois and the Central District of California.

I think those efforts have been productive, fruitful, and

streamlined to date. And as a result, we are proceeding in a

streamlined and organized fashion, as I told the panel in my

papers, to a mediation that's scheduled for August 13th.

Everybody is working cooperatively. And in my efforts of

coordination, I really tried hard to get everyone on board.

Unfortunately, we weren't able to get everyone on board, and the

Northern District of California is not willing to participate.

Unfortunately, because of that lack of unanimity, we need the

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panel's intervention, and that's why we are requesting

centralization.

Everybody is proceeding to mediation. We're on track in

working collaboratively. And we would like that process to

continue. As you all should know, this case does involve a

matter of crucial importance. It involves the privacy interests

of minors, and we feel like our progress made thus far in this

litigation should continue, and we feel that centralization

would allow us to do that.

JUDGE CALDWELL: Thank you.

Do we have questions from panel members?

Thank you very much, Ms. Carroll. That concludes your

argument.

MS. CARROLL: Thank you, Judges.

JUDGE CALDWELL: The Court will now recognize

Ms. Rhow -- or Mr. Rhow. I'm sorry.

MR. RHOW: Good afternoon, Your Honors. My name is

Ekwhan Rhow. I am interim lead counsel in the Northern District

of California, and we support centralization in that district.

It is in the Northern District of California where the two

primary U.S.-based defendants, in fact the only two U.S.-based

defendants are located. ByteDance, which is the focal point of

this entire case, has its headquarters in Palo Alto. TikTok,

which is the other important defendant, has its engineering

offices in Palo Alto and Mountain View, which again is in the

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Northern District. The Northern District is the location of the

source code, both current and former employees, as well as the

documents, the relevant communications with the other two

Chinese-based defendants that occurred within the district, and

the theft of the private data that is at issue was orchestrated

from the district.

Judge Koh has been managing the case. She is clearly an

experienced jurist who just recently completed the Yahoo! data

privacy MDL. She has no MDLs pending except one on appeal and

is available to take the case. That has been established by how

she managed it. She managed it efficiently, effectively, such

that the case has progressed more than the others.

The Hong case was filed five to six months before any of

the other cases, which means the attorneys, the investigators,

the experts have been working on this case for many months

before that. In the Hong case, importantly, the Chinese

defendants, who are not named in every other case and who are

crucial to the conspiracy, have appeared and have responded to

discovery, and that has not occurred in any other case. In

fact, in March and April, there was discovery responses that

were received.

In April, a full-day mediation did occur. After that

mediation, Judge Koh set a trial date, a full case schedule,

ruled on competing Rule 23(g) motions, and appointed interim

lead counsel. Pursuant to her order, we will be filing a

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consolidated amended complaint next week. So this case will

progress more than any other.

In closing, I would like to say, this is not just a BIPA

case. This is not a case just about minors. It has California

and federal claims that go beyond BIPA, class members that go

beyond Illinois, and relief that goes beyond simply statutory

penalties.

In terms of the case itself, it also goes beyond factually

biometrics. It goes into user ID, device ID, and private user

videos. All of them have common facts requiring centralization

that should be heard in the Northern District of California.

JUDGE CALDWELL: Thank you.

Panel members, do you have any questions? Yes, Judge

Huvelle. Judge Huvelle, you're muted.

JUDGE HUVELLE: Counsel, what do you make of the

argument from your prior colleagues that this belongs in

Illinois, especially because of the Illinois Biometric

Information Privacy Act?

MR. RHOW: Well, a couple points. First of all, in

terms of TikTok, TikTok did not direct any specific conduct to

Illinois. This is an app. that's provided to people throughout

the country. It's not provided just to minors. It's clearly

college students, my wife. A lot of people use this app. for a

variety of reasons. So the notion that somehow some conduct was

directed to Illinois is not true. Yes, that statute, the BIPA

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statute is in play, but if you look at our complaint, so are a

host of California statutes, so are federal statutes, so are

common law claims.

And in addition, perhaps most importantly, in terms of our

class action, the most effective and importantly is not going to

be statutory penalties; it's going to be the injunctive relief

that must apply not just to the U.S. domestic defendants but

also to the Chinese defendants. That injunctive relief is

available in our complaint and needs to be imposed to protect

not just Illinois residents, but the entire nation.

JUDGE CALDWELL: Other questions from the panel? Yes,

Judge Proctor.

JUDGE PROCTOR: You had a mediation in April that was

unsuccessful?

MR. RHOW: That's correct.

JUDGE PROCTOR: And there was a mediation scheduled

for next week. Were you one of the ones that opted not to

participate in that?

MR. RHOW: That's correct.

JUDGE PROCTOR: Why?

MR. RHOW: We had the benefit of having mediated, by

the way, before the very same judge, Judge Layn Phillips, in

April. Very clearly back then -- and I don't know if I am at

liberty to go into the actual discussions. But based on what we

know from back then, nothing has changed between then and now.

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So the notion that this successive mediation, which TikTok would

like to do, would be productive, we think is not in the best

interest of the class. We have every intention and would like

to cooperate based on the request, but our duty is really to the

class members. Based on what was said at that mediation, we do

not believe it would be an effective mediation.

In addition, centralization is key here, because if there

is no centralization prior to that mediation, this becomes a

reverse auction where TikTok, sitting as a single-party

defendant, can take the lowest bid from a variety of people who

don't all represent the same folks. The Illinois plaintiffs are

minors, 14 to 17. There's a whole set of class members around

the country whose voices need to be heard in a centralized

fashion.

And so for that reason, again in the best interest of the

class, we have declined to participate. Of course, knowing that

after we take further discovery, after we litigate, after we

prove the claims we need to prove, that may be a better time and

a more ripe time for a mediation.

JUDGE CALDWELL: Any other panel members have

questions for Mr. Rhow?

Thank you, sir.

MR. RHOW: Thank you.

JUDGE CALDWELL: The panel will now recognize Michael

Gervais.

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MR. GERVAIS: Good afternoon, panel. Michael Gervais

with the law firm Susman Godfrey on behalf of plaintiff C.H., a

minor. We filed in the Central District of California.

As I say in my papers, we are in favor of centralization in

the Central District of California, in the alternative the

Northern District of California, and I would also add a

modification, which is that we are also fine with centralization

in the Illinois districts as well.

I would respectfully submit that the Central District of

California is most well-suited for centralization of these

cases. First, the Central District of California is where the

primary defendant TikTok maintains its headquarters in the

United States. It's where its executive works from -- well,

maintains offices in the Northern District of California. It's

principal place of business is here in Los Angeles.

In addition, Musical.ly, which is a predecessor app. that

TikTok acquired and merged -- acquired its users and merged

data, we believe, was based here in Los Angeles as well. Given

the location of TikTok and Musical.ly here in the Central

District of California, I anticipate a substantial number of

witnesses and documents will be located here.

Second, Los Angeles is an easily accessible district. LAX

is an international airport with many flights, and it would be

very easy for overseas witnesses from China to fly into.

Third, the Central District of California is very capable

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of efficiently handling large consolidated proceedings. I

understand the panel takes into account the needed time to

disposition. And the Central District of California, the last

statistics I saw show that it has the shortest time to

disposition. Of course, the world has significantly changed

since those statistics came out, but I don't believe that those

changes mean that the time to disposition has quickened.

Fourth, Judge Birotte is an experienced jurist. He's

handled MDLs before. And I think he will be well-suited to

handle this one.

If -- well, with that, I will yield my time.

JUDGE CALDWELL: Very well. Any questions from the

panel?

Hearing none, that concludes your argument. We will now

hear the argument of Mr. Weibell for TikTok.

MR. WEIBELL: Good afternoon, Your Honors. Anthony

Weibell for the defendant TikTok and all defendants in these

actions from the law firm of Wilson Sonsini Goodrich & Rosati in

Palo Alto, California.

All of the defendants support centralization of the actions

in either the Northern District of Illinois with Judge Lee or,

alternatively, in the Northern District of California with Judge

Koh.

All parties to these cases agree that centralization is

appropriate. All of the cases involve the same product. It's

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the TikTok mobile app. All of the cases turn on the predicate

allegation that the app. is collecting information from users

without adequate disclosures and consent. So as far as

overlapping facts, we think the factors are very well met here

in these cases, and really, the issue is where to centralize the

actions.

In our view, we are not opposed to centralization either at

the Northern District of California or the Northern District of

Illinois. We think both of the judges in those districts that

have the bulk of the cases pending before them are very well

equipped to handle the MDL. They have prior experience in those

districts. They have the current capacity that makes them a

more favorable venue than some of the alternatives.

In our view, you know, even though California is my home

court and we usually prefer to be there, I think in fairness, it

does seem like the Illinois courts would be a more appropriate

forum for this, given the BIPA claim, the Illinois Biometric

Information Privacy Act claim. I know some of the other counsel

have spoken to that.

Really, the BIPA claim is the big gorilla here. The

statutory damages that are available under BIPA make that claim

far more important than any other claim in this case. It just

dwarfs everything else, given the very high statutory damages

and the fact that the other claims really don't have any meat to

them. And so it will be very important for that claim to be

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decided and adjudicated properly, as well as the very novel

issues that are presented in this case which make this case

different than other BIPA cases that have come before it. And

out of fairness, it probably makes sense for the Illinois judges

to decide that issue.

Thank you.

JUDGE PERRY: We seem to have lost the chair

momentarily. Judge Huvelle, do you want to ask -- I mean, I

guess, are any of the judges going to ask questions?

JUDGE HUVELLE: Does anybody have questions for the

litigant?

Well, not hearing any, we thank you very much. I think

that concludes this case, if I'm not mistaken. Yes. Thank you,

sir.

MR. WEIBELL: Thank you, Your Honor.

(Proceedings in MDL 2948 concluded at 1:39 p.m.)

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CERTIFICATE OF OFFICIAL COURT REPORTER

I, Sara A. Wick, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

Please Note: This hearing occurred during the

COVID-19 pandemic and is, therefore, subject to the

technological limitations of court reporting remotely.

/s/ Sara A. Wick August 8, 2020

SIGNATURE OF COURT REPORTER DATE

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