Some members of the privacy class-action lawsuit against China's social media company believe they can recover more from TikTok in individual arbitration -- and Thursday’s ruling from U.S. District Judge John Lee of Chicago means that 851 of them can attempt to do just that.
About 1.2 million TikTok users submitted claims, according to Thursday’s decision, out of an estimated 89 million TikTok users in the class, for an overall claims rate of 1.4%. (The claims rate was higher, 13%, for a subclass of Illinois residents who alleged violations of the state’s biometric privacy law.)
Judge Lee granted final approval to the $92 million nationwide settlement with video sharing service TikTok and its parent, ByteDance Inc, on Thursday. The judge also awarded about $29 million in fees to class counsel from Lynch Carpenter; Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow; FeganScott and a host of other plaintiffs' firms that did work for the class that launched the suit.
TikTok has denied harvesting biometric data at all and has said it did not compromise users' privacy.
A handful of plaintiffs' firms had objected to the deal’s stringent rules for opt-outs, arguing that law firms should instead be permitted to opt out their clients en masse, via a single electronic filing, rather than advising their clients to complete, sign and submit individual opt-out forms. Lee nixed that request.
Tik Tok defense lawyers at Wilson, Sonsini, Goodrich, & Rosati had argued that the plaintiffs' firms had improperly solicited clients with deceptive ads, then used internet technology to obtain electronic “signatures” from potentially unwitting class members.
“This technology does not change the fact that these firms are still soliciting and submitting opt-out requests en masse to disrupt the court-approved settlement,” the TikTok brief argued. “All of the same concerns discussed with traditional mass opt-outs still apply to these mass-auto-generated individual electronic opt-outs.”
But the TikTok opt-out plaintiffs’ firms said their situation is not analogous. In a strong response to TikTok, they said they didn’t use deceptive ads – and that if anyone is being deceptive, it’s TikTok, which accused them of running one ad they had nothing to do with and claiming another solicitation was misleading when, in fact, it contained no misrepresentations.
TikTok’s “speculative and unprofessional attacks,” the plaintiffs' firms said, were really just an attempt to stymie class members trying to exercise their contractual right to arbitrate. “In TikTok’s view, absentee class members not only should be deprived of their due process rights to opt out, they also lose a right to hire counsel,” the brief said. “This position is contrary to the law, ethics and reason.”
TikTok lawyer Tony Weibell of Wilson Sonsini declined to provide a statement on the opt-out issue. Opt-out lawyers Yana Hart of Clarkson, Michael Kind of Kind Law and Joshua Swigart didn’t respond to email requests for comment.