The settlement, if approved, would address millions of reported violations of Illinois’ Biometric Information Privacy Act in multi district litigation consolidated in the Northern District of Illinois.

By: Ellen Bardash | April 19, 2021

Attorneys clashed Monday over the opt-out procedure for class members in the proposed settlement of TikTok’s consumer privacy litigation, coming close to questioning each other’s professional motivations.

During a motions hearing, Jonathan Gardner of Labaton Sucharow said requiring signatures from each class member who wants to opt out of the $92 million settlement would be an unnecessary administrative step, a stance Katrina Carroll of Carlson Lynch called contradictory to standard procedures, including those Labaton Sucharow has used in other class action settlements.

The settlement, if approved, would address millions of reported violations of Illinois’ Biometric Information Privacy Act in multi district litigation consolidated in the Northern District of Illinois.Gardner, a New York-based Labaton partner representing two objectors, proposed allowing attorneys to submit opt-out forms on class members’ behalf rather than requiring each class member to get a form, sign it and return it.

But Carroll, a founding partner of Carlson Lynch’s Chicago office, said the signature is key for ensuring each class member is knowingly giving up a chance for arbitration by accepting the settlement.

Gardner fired back, asserting that Carroll’s position that signatures were necessary to prevent fraud implied she’s telling the court that he and other attorneys representing class members are committing fraud. Carroll said she was making no claim of fraud.

“Why, in those circumstances, would you make it as difficult as possible to people to exercise their arbitration rights?” He asked. “Why is it more complicated to opt out of this settlement than to make a claim in this settlement? Why is it more complicated to opt out of this settlement than to become a TikTok user? The parties want to make it as burdensome as possible to opt out.

Carroll responded by saying she found it suspicious a firm would assert 957 class members it’s representing want to opt out but not give the court any proof of that, citing other settlements in which the number of class members attorneys estimated would opt out were significantly higher than the number that ultimately did.

“I’m not accusing anyone of committing fraud. All I’m saying is we need to know that arbitration is the route that these people are choosing voluntarily,” Carroll said.

U.S. District Judge John Z. Lee of the Northern District of Illinois raised the issue near the beginning of the hearing when he asked if it would be possible to add a form to the lawsuit’s website that class members could use to opt out electronically, similar to the one they could use to register a claim.

“People are very confused, and a lot of times, when they think they are submitting an opt-out, they are submitting a claim,” Carroll said, noting the settlement agreement has already provided for an opt-out form but it hadn’t been provided to the court yet.

Lee said he plans to issue a written opinion on whether the settlement can move forward based on elements including the parties’ proposed method of notifying class members.