UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE: TIKTOK, INC., )

CONSUMER PRIVACY ) MDL No. 2948

LITIGATION )

) Master Docket No. 20 C 4699

)

) Judge John Z. Lee

)

) Magistrate Judge Sunil R. Harjani

This Document Relates to All Cases )

OPPOSITION OF PROPOSED PSC MEMBERS KARA WOLKE, DAVID GIVEN,

AND AMANDA KLEVORN TO THE SETTLING FIRMS’

PROPOSED LEADERSHIP SLATE

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I. Rule 23(g), Not Numbers, Should Guide this Court’s Appointment of Counsel.

In a significant, high-profile MDL like this one, where multiple submissions confirm a 

serious difference among plaintiffs’ counsel on the subject of leadership, the Court bears the 

responsibility of creating a leadership structure under Rule 23(g). Tallying who supports whom 

among attorneys does not appear in that Rule, however. And despite what the Settling Firms urge,

the Court should not base its leadership decision on attorney headcount—particularly where first, 

those attorneys do not represent the majority of class plaintiffs (a far better metric if one is counting), 

and second, half of those in favor of the Settling Firms’ leadership slate support a settlement they 

have never seen.

“Appointment of [leadership in a class action] is not supposed to be a popularity contest.” In 

re Shop-Vac Mktg. & Sales Practices Litig., No. 4:12-md-2380, 2013 WL 183855, at *3 (M.D. Pa. Jan. 

17, 2013) (and noting that “the number of attorneys supporting a given candidacy is not included 

among the factors set forth in Rule 23(g)”) (internal quotations and citation omitted). Courts 

routinely and rightly reject the popularity among lawyers for a given slate as a consideration in 

determining class action leadership. They do so for a reason. A popularity contest does not promote 

the objectives of Rule 23(g). Just the opposite: It encourages multiple copycat filings coordinated 

among lawyers aimed at garnering votes for leadership and control of a given class action, with the 

risk of secret side deals among counsel. In re Razorfish Secs. Litig., 143 F. Supp.2d 304, 308 (S.D.N.Y. 

2001). 

The Court should decide leadership in this MDL on the merits of counsel’s qualifications as 

set out in Rule 23(g). Generally, the most important factor is the work counsel have done to identify 

or investigate potential claims in the action. See, e.g., Walker v. Discover Fin. Servs., No. 10-cv-6994, 

2011 WL 2160889, at *3 (N.D. Ill. May 26, 2011) (appointing among competing firms those who 

“were the first to file putative class-action complaints” and who had “been involved in this litigation 

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for the longest time period and have performed the most work in identifying and investigating 

potential claims”); In re Shop-Vac Mktg., 2013 WL 183855, at *3 (same). The undersigned respectfully 

submit that the Litigating Firms best satisfy this criterion. Doc. No. 40.

II. The Settling Firms’ Actions Caution Against Their Selection as Lead Counsel.

The Settling Firms have proffered a lengthy description of how they obtained their

conditional agreement with Defendants to buttress their leadership application. But in all of the

many pages devoted to justifying what they have done, the Settling Firms nowhere address this 

central issue: They purport to have settled this entire MDL (including claims they did not bring)

without court sanction or authorization of any kind. In this, their actions run contrary to the 

spirit if not the letter of Judge Koh’s July 14th order in the Hong case as well as this Court’s CMOs

#1 and #2. All three of these orders reflect the preference for a well-established practice and 

procedure: The appointment of leadership in a class action such as this one (and especially an MDL) 

should precede settlement, not the other way around. 

In this Circuit, “a person who unofficially represents the class during settlement negotiations 

must be under strong pressure to conform to the defendants’ wishes [and] an individual, lacking 

official status, knows that a negotiating defendant may not like his ‘attitude’ and may try to reach a 

settlement with another member of the class.” In re General Motors Engine Interchange Litig., 594 F.2d 

1106, 1125 (7th Cir. 1979) (emphasis added). “Settlement negotiations with less than all counsel 

weaken the class’ tactical position even if the attorney who enters into the negotiations attempts to 

represent the class’ interests vigorously.” Id. (emphasis added). See also Reynolds v. Beneficial Nat. Bank, 

288 F.3d 277, 284 (7th Cir. 2002) (to same effect); Atlantic Mutual Ins. v. Northwest Airlines, 24 F.3d 

958, 960-61 (7th Cir. 1994) (to same effect).

As this Circuit’s authority makes clear, proper order matters in the settlement of class 

actions. As it should. Maintaining procedural integrity in a class action (especially early in a case of 

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this size and scope) assures the fair and adequate representation of the class, bolstering the 

legitimacy of any voluntary resolution of the matter. This is a constitutional imperative. Amchem 

Products v. Windsor, 521 U.S. 591, 627 (1997). Consistent with that imperative, this Court issued its 

CMO #1 and later instructed in its CMO #2 that “until the Court makes [leadership] appointments, 

no counsel of record representing a particular Plaintiff or a putative class of Plaintiffs shall have any 

more or less authority than another.” Doc. No. 24.

The terms and conditions of the agreement the Settling Firms have made with Defendants 

remain a mystery to the majority of plaintiffs’ counsel—including half of the attorneys who say they 

support it. Nor has the Court seen or considered them. As those terms remain secret, the mere fact 

the Settling Firms negotiated that agreement, whatever it may say, should not weigh in favor of 

granting them exclusive control of the matter. Rewarding the Settling Firms for acting as they have

would place a stamp of approval on a cart-before-the-horse process that the Seventh Circuit has 

characterized as “improper.” General Motors, 594 F.2d at 1126.

The issue now before this Court is whether proper order matters. If it does, then the fact 

that the Settling Firms negotiated an agreement with Defendants before the Court appointed lead 

counsel pursuant to Rule 23(g) counts as a strike against (not for) their leadership proposal.

III. The Settling Firms’ Actions Pose Risk to The Class.

The Settling Firms rely almost exclusively on the fact they negotiated a conditional 

“settlement in principle” with Defendants to support their leadership applications. But the decision

to proceed as they did hardly supports their proposed leadership slate. Their actions have already 

increased the cost of this matter, precipitating satellite litigation over the propriety of what they have 

done in a contested leadership proceeding. They must know this, which is why they spent as 

many pages and proffered as many exhibits (including a 53-page email thread) as they did on the 

subject in support of their applications. 

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The Settling Firms’ action also poses risk to the class. As noted above, they have weakened 

the class’ tactical position in the matter. Moreover, having endorsed the exclusion of other plaintiffs’ 

counsel and, more importantly, those serving as class representatives in other cases against 

Defendants, the Settling Firms may have left those individuals with an “ultimatum that prevents any 

effective challenge to the settlement by simply giving class members the choice of accepting its 

benefits or litigating individually.” City of Detroit v. Grinnell Corp., 495 F.2d 448, 466 (2d Cir. 1974).

Finally, as Defendants refuse to disclose the agreement’s terms to anyone outside their mediation, 

the net effect of the Settling Firms’ actions has been to empower Defendants.

The ultimate question is whether the Settling Firms followed a process justifying their 

exclusive leadership of this MDL. Aside from the horse and cart problem, the other available evidence 

suggests that they did not. First, they excluded or endorsed the exclusion of multiple sets of 

plaintiffs’ counsel from the August 13th mediation, and proceeded solely with a slate of seven 

attorneys approved by Defendants. Second, they acted counter to the spirit of CMO # 2 when, after 

its issuance, they and Defendants announced that they were still seeking to consummate an 

agreement before a Rule 23(g) leadership appointment. Third, they did not seek input from all

potential class representatives about the conditional settlement. These factors all weigh against the 

Settling Firms’ exclusive leadership proposal.

IV. The “Team Of Rivals” Approach Suggested By The Litigating Firms Would

Encourage Cooperation And Aid The Court In Its Evaluation Of Any Proposed 

Settlement.

The Seventh Circuit has warned that “the structure of class actions under Rule 23 [] gives 

class action lawyers an incentive to negotiate settlements that enrich themselves but give scant 

reward to class members, while at the same time the burden of responding to class plaintiffs’

discovery demands gives defendants an incentive to agree to early settlement that may treat the class 

action lawyers better than the class.” Thorogood v. Sears, Roebuck and Co., 627 F.3d 289, 293 (7th Cir.

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2010) (emphasis omitted). The Settling Firms’ insistence on leadership for only those who support 

their secret agreement with Defendants, and that no outside lawyers with a principled disagreement 

over process should participate in the leadership of this case, raises serious red flags in this 

connection. See In re Ivan F. Boesky Sec. Litig., 948 F.2d 1358, 1365 (2d Cir. 1991) (stating that failure 

to communicate and consult with other plaintiffs’ counsel can be grounds for rejection of class 

settlement); Moore v. Halliburton Co., No. 3:02-cv-1152-M, 2004 WL 2092019, at *6 (N.D. Tex. Sep. 9, 

2004) (finding that even where duly appointed lead counsel negotiates settlement but does so 

without notice to other plaintiffs, counsel jeopardizes appointment as lead counsel; such 

appointment may be modified if other plaintiffs, after receiving appropriate information, determine 

that secret settlement is unacceptable).

Unlike the duly-appointed lead counsel in Moore v. Halliburton Co., the Settling Firms were not 

appointed to any position at the time they negotiated their conditional agreement with Defendants.

At a time when they were in competition with multiple other counsel for leadership appointment in 

this matter, the Settling Firms made their conditional agreement with Defendants and are now using 

that fact as their primary argument for why they should be appointed to that leadership role. In 

short, they have put their agreement with Defendants in service of their proposed leadership 

structure. Selection of the Litigating Firms’ proposed blended leadership slate, where the Settling 

Firms have a voice but do not drown out those who are not invested in what they have done, rights 

the ship, solving any potential issues raised by their unorthodox and unauthorized actions and

“creating order out of what [might] otherwise be chaos.” In re Cardizem CD Antitrust Litig., 218 

F.R.D. 508, 528 (E.D. Mich. 2003).

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A balanced slate of attorneys in leadership ensures a balanced and objective take on 

whatever arrangement the Settling Firms have made with Defendants, good, bad or ugly. In any 

event, the fact of that arrangement should not serve as a basis for appointment to the exclusion of 

all others.

CONCLUSION

Defendants (with the assistance of certain interim plaintiffs’ counsel) have attempted to preempt this Court’s Rule 23(g) leadership decision by finding counsel willing to negotiate and settle

this matter in advance of that decision. The Settling Firms, by choosing to participate, shortcircuited the process contemplated by the Federal Rules of Civil Procedure, the Manual for Complex 

Litigation, and this Court’s own case management orders. The Litigating Firms respectfully submit

that this Court appoint a leadership slate that includes the undersigned and recognizes the firms who 

did the most work to investigate and identify the claims and have (as evidenced by the operative 

pleadings) the broadest and most deeply researched claims. 

Respectfully submitted,

DATED: September 15, 2020 PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP

By: /s/ David M. Given______________________________

David M. Given 

39 Mesa Street, Suite 201, The Presidio

San Francisco, CA 94129 

Telephone: (415) 398-0900

Email: dmg@phillaw.com

MDL Interim Counsel

Attorneys for Plaintiffs Meghan Smith, minors C.W. 

and I.W., through their mother and legal guardian 

Mikhaila Woodall, and minor R.P., through her 

mother and legal guardian Lynn Pavalon

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DATED: September 15, 2020 GLANCY PRONGAY & MURRAY LLP

By: /s/ Kara M. Wolke

Kara M. Wolke

1925 Century Park East, Suite 2100

Los Angeles, California 90067-2561

Telephone: (310) 201-9150

Los Angeles, California 90067-2561

Email: info@glancylaw.com

MDL Interim Counsel

Attorneys for Plaintiffs Misty Hong, minor A.S., 

through her mother and legal guardian Laurel 

Slothower, and minor A.R., through her mother and 

legal guardian Gilda Avila

DATED: September 15, 2020 BURNS CHAREST LLP

By: /s/ Amanda Klevorn

Amanda Klevorn

365 Canal Street, Suite 1170

New Orleans, Louisiana 70115

Telephone: (504) 779-2845

Email: aklevorn@burnscharest.com

MDL Interim Counsel

Attorneys for Plaintiffs minor P.S., through her legal 

guardian Cherise Slate, and minor M.T.W., through 

her legal guardian, Brenda Washington

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DATED: September 15, 2020

LAWRENCE KAMIN, LLP

By: /s/ Peter E. Cooper

Peter E. Cooper

300 S. Wacker Dr., Ste. 500

Chicago, IL 60606

Telephone: (312) 372-1947

Email: pcooper@lawrencekamin.com

MDL Interim Counsel

Attorneys for Plaintiffs Misty Hong, minor A.S.,

through her mother and legal guardian Laurel

Slothower, and minor A.R., through her mother and 

legal guardian Gilda Avila, Meghan Smith, minors 

C.W. and I.W., through their mother and legal 

guardian Mikhaila Woodall, and minor R.P., through 

her mother and legal guardian Lynn Pavalon, P.S., 

through her legal guardian Cherise Slate, and minor 

M.T.W., through her legal guardian, Brenda

Washington

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CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2020, the foregoing document was filed electronically 

through the Court’s Electronic Case Filing System. Service of this document is being made upon all 

counsel of record in this case by the Notice of Electronic Filing issues through the Court’s 

Electronic Case Filing System on this date.

/s/ David M. Given

David M. Given

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