TikTok to Pay $92 Million in Final Approval of Settlement Agreement

On July 28, 2022, Judge John Z. Lee granted final approval in the class action settlement against TikTok and parent company ByteDance awarding $92 million to the class of 1.4 million people for the company’s violation of users’ private data.

“We are pleased that the court recognized the substantial value of this landmark settlement. More importantly, we believe that TikTok will make substantial changes in its practices going forward to ensure the privacy of its users is protected," says Katrina Carroll, Lynch Carpenter Partner. Carroll served as Co-Lead Attorney for TikTok users in the Illinois Subclass which asserted claims under the Illinois Biometric Information Privacy Act.

To read the full court opinion, click here.

Man holds FLSA fair labor standards act.

LAWSUIT UPDATE – Copley v. Evolution Well Services Operating, LLC, No. 20-cv-1442, slip op., 2022 WL 295848 (W.D. Pa. Jan. 21, 2022)

In a decision on January 31, 2022, the district court for the Western District of Pennsylvania conditionally certified a collective action on the part of employees against their employer for a violation of the Fair Labor Standards Act of 1938 (FLSA).

The FLSA is the federal law that establishes the minimum wage, overtime pay rates, recordkeeping requirements, and youth employment standards. Generally, all the time an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace constitute their work hours for payment purposes. Additionally, overtime is any amount of time an employee works over the normal 40 hours a week. When the FLSA was enacted, the Department of Labor created the Wage and Hour Division to administer and enforce the provisions of the law. Under the FLSA, employees are allowed to bring collective actions against their employer, which differ from traditional class actions in several procedural respects. Because the statute itself doesn’t specify those procedures, the courts have come up with a two-step process by which to certify collective actions.

The first stage of collective action certification requires that the plaintiffs show that there is a connection between how the employer’s policies and procedures affected the individually named plaintiff and how the policies affected all the other prospective collective action members. In other words, the court, at this stage, determines whether other employees are situated similarly to the named plaintiff. If plaintiffs are granted the conditional certification at this stage, they are allowed to then notify the potential collective action members of the suit. At the second stage, following discovery and usually prompted by a motion to decertify, courts engage in a more thorough inquiry to determine if the named plaintiff and the opt-in plaintiffs are similar enough to allow the matter to proceed to trial on a collective basis.

In our suit against Evolution Well Services Operating, LLC, plaintiffs and members of the collective action would work two-week long “hitches” during which time they would live in employee-controlled housing, working 12-hour shifts at the remote work site. In addition to the time spent working at the site, however, they had been required to get themselves to the employee-controlled housing at the beginning of a hitch, to attend meetings before and after leaving the employer housing for the work site, and to spend an average of one and a half hours travelling before and after each 12-hour shift, for which they were not compensated. During the meetings, employees would be on calls and in meetings with supervisors, would have their temperature checked, and would sometimes be drug tested. They would also be performing work-related activities during transport to and from the job site on a daily basis. Plaintiffs argued that the policies regarding travel applied to all hitches employees, and therefore all hitch employees were similarly situated as required for conditional certification.

Evolution Well made several arguments against the plaintiffs’ assertions. One of these was that the travel from the employer housing to the worksite and back was a “normal incident” of the work. The court first explained that the regulations promulgated by the Department of Labor consider travel incident to work to be the commute an employee makes between work and home on a regular workday. The court found that employees clearly were not traveling to and from home every day and that the precedent cited by Evolution Well was either factually distinguishable or legally irrelevant, so employees’ travel time could potentially be legally compensable. Evolution Well also argued that different employees performed different activities and not all employees might be performing indispensable and integral activities on the way to and from the work site. The court rejected this argument, finding that the activities conducted by employees during this time could be indispensable and integral and that this defense did not prevent the court from granting conditional certification.

Evolution Well further argued that the proposed collective action included some employees that weren’t owed damages because some employees had been compensated for travel time. The court said that it was unclear at this stage which employees were or were not compensated by the policies and so the court would not prevent the collective action from going forward on that basis.

Finally, the plaintiffs requested employee names, job titles, addresses, email addresses, mobile phone numbers, employment dates, dates of birth, and the last four digits of the employees’ SSNs and argued that email and text message notice should be allowed. Evolution Well requested the court require the parties to meet and confer regarding the scope of employee information provided and the notice plan. The court granted the plaintiffs’ request almost entirely, excluding only the last four digits of the employees’ social security numbers. Importantly, the court and that, in this day and age, distributing notice by text and email was appropriate.

The court’s ultimate conclusion in the January 31 decision was that the plaintiffs had put forth enough evidence in favor of conditionally certifying the collective action and so had passed through stage one of the FLSA collective action procedures and can move on to stage two. This is a huge step forward for the plaintiffs and other employees toward holding Evolution Well responsible and being paid the money they earned.

Blog Post by Elizabeth Pollock-Avery and Lucia Romani.


The Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.

Brian J. Malloy, Employment: Navigating The “Collective Action” In Federal Court, Plaintiff Magazine, Nov. 2013

29 C.F.R. § 785.39

Copley v. Evolution Well Services Operating, LLC, No. 20-cv-1442, slip op., 2022 WL 295848 (W.D. Pa. Jan. 21, 2022)

LAWSUIT UPDATE - In re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014 (W.D. Pa.)

On May 2, 2022, following the FDA’s Section 518(a) of the Federal Food, Drug, and Cosmetic Act (“FDCA”) action against Philips, which required Philips to provide notification to customers of the recall and the health risks presented by the recalled devices, the U.S. Food and Drug Administration’s Center for Devices and Radiological Health (“CDRH”) issued a letter proposing that Phillips be issued a new order, but this time under Section 518(b) of the FDCA.

Section 518 of the FDCA is designed to protect public health. Under Section 518(a), the FDA may require manufacturers or other appropriate individuals to notify all health professionals who prescribe or use the device and any other person (including importers, distributors, retailers, and device users) of the health risks resulting from the use of the defective device, so that these risks may be reduced or eliminated. In turn, Section 518(b) authorizes the FDA, after offering an opportunity for an informal hearing, to order manufacturers, importers, or distributors to repair, replace, or refund the purchase price of devices that present unreasonable health risks.

Despite explicit authority granted under Section 518 of the FDCA to regulate medical devices, the FDA seldomly employs it. Before Philips, the latest use of Section 518 was the issuance of a Section 518(a) notification in 1995 to a firm called Telectronics. Telectronics manufactured pacemakers; however, their pacemaker’s wire, responsible for delivering electric pulses to the heart, began to break and puncture the individual’s heart to whom the device was surgically implanted. This faulty wire affected nearly 22,000 Americans and is to blame for two patients’ deaths, at least a dozen injuries, and over 1,000 surgeries to remove the defective wire resulting in an additional four deaths during the operations. When issuing the 518(a) notification, the FDA accused Telectronics of not warning patients about the malfunctions until January 1995, even though it received the first reports in 1994.

The issuance of the 518(b) notice is significant—we have found no past examples of the FDA exercising its repair/replace/refund authority under Section 518(b). However, per the FDA’s May 2, 2022 letter, Phillips may make recent history and receive a 518(b) order. The FDA asserts four reasons which justify the issuance of a 518(b) order.

First, as outlined in the 483 report, the CDRH states that the recalled devices contain polyurethane (“PE-PUR”) foam that may degrade into particles and be inhaled by device users. This foam contains harmful chemicals, including toluene diisocyanate isomers (“TDI”), toluene diamine isomers (“TDA”), and diethylene glycol (“DEG”). Inhalation or ingestion of these particles may cause toxic and potentially carcinogenic effects and irritation of the respiratory tract, eyes, nose, and skin, asthma, inflammatory responses, and headache.

The CDRH further states that testing of the recalled devices showed that these devices emitted volatile organic compounds (“VOC”). These compounds include dimethyl diazine, phenol, 2,6-bis (1,1-dimethylethyl)-4-(1-methylpropyl), and formaldehyde. Due to the risk associated with the potential degradation of and the VOC emissions from the PE-PUR foam contained in the recalled devices, the CDRH believes there is sufficient evidence for the FDA to determine that the recalled devices present an unreasonable risk of substantial harm to the public health.

Second, the CDRH states that there are reasonable grounds that Phillips did not adequately evaluate the devices subject to the recall despite receiving various test reports, complaints, information from supplies, and information from another entity owned by Philips’s parent company that the devices’ foam was potentially degrading as early as 2015. By continuing to manufacture the products that contained the potentially degrading foam, the CDRH held that Philips failed to evaluate the devices adequately and, in turn, implement corrective and preventive actions that could have potentially mitigated the harm of the degraded foam as required by current good manufacturing requirements. As a result, the CDRH believes that under these circumstances, there is enough evidence for the FDA to determine that there are reasonable grounds to believe that Philips’s manufacturing of the recalled devices was not adequately conducted consistent with the state of the art as it existed at the time when Phillips manufactured the devices.

Third, the CDRH held that while the use of ozone to clean the recalled devices may exacerbate the degradation of the PE-PUR foam, the unreasonable risk associated with the devices was not caused by the ozone cleaning agents but instead was caused by the foam’s susceptibility to degradation under even relatively mild environmental conditions. Therefore, CDRH believes that there is sufficient evidence for the FDA to determine that there are reasonable grounds to believe that the unreasonable risk associated with the recalled devices was not caused by using ozone cleaning products and instead caused by the manufacturer, importer, distributor, or retailer of the devices failure to exercise due care in device installation, maintenance, repair, or use.

Lastly, the CDRH stressed that patients and providers could not readily mitigate that risk even when aware of the unreasonable risk associated with the recalled devices. The FDA has cautioned against using an additional filter in these recalled devices, and the removal of PE-PUR foam from BiPAP or CPAP machines may present a severe risk. Further, no solution is offered as a viable way to prevent the potential chemical emissions from being inhaled. Therefore, repairing, replacing, and/or issuing a refund for the affected devices is necessary.

The next step in this saga is whether the FDA will issue the Section 518(b) order.

According to the FDA, between “April 2021 through April 30, 2022, the FDA received more than 21,000 medical device reports (“MDRs”), including 124 reports of death, associated with the PE-PUR foam breakdown or suspected foam breakdown. The MDRs received included both mandatory reports from Philips and voluntary reports from health professionals, consumers, and patients. A wide range of injuries have been reported in these MDRs, including cancer, pneumonia, asthma, other respiratory problems, infection, headache, cough, dyspnea (difficulty breathing), dizziness, nodules, and chest pain.”

If you have been injured as a result of the use of a recalled Philips CPAP, Bi-Level Pap, or Ventilator, you may contact us to discuss your legal rights.

Blog Post by Kelly K. Iverson and Bailey Corbin.

Kelly K. Iverson is a partner at Lynch Carpenter, LLP, and was appointed by Judge Joy Flowers Conti as Plaintiffs’ Co-Lead Counsel in In re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014 (W.D. Pa.).

lynch carpenter logo

Carlson Lynch Announces Switch to Lynch Carpenter

National law firm welcomes new partners and official name change

PITTSBURGH (March 1, 2022) — Carlson Lynch has announced their conversion to Lynch Carpenter, along with their new mission- Pursuit with Purpose. Lynch Carpenter will be comprised of partners Todd Carpenter, Katrina Carroll, Eddie Kim, Jamisen Etzel, Kelly Iverson, Ed Ciolko, Ed Kilpela, Kyle Shamberg, Kate Lally, and founding partner, Gary Lynch. Bruce Carlson and new partner Ian Brown will be focused solely on disability rights (ADA), a cause Bruce has long supported. The two will continue to work alongside Lynch Carpenter to deliver justice to their clients. Lynch Carpenter will continue to target worker’s rights violations and class action lawsuits.

“The transition of Carlson Lynch to Lynch Carpenter was a natural progression. As a firm, we have strengthened our commitment around consumer protection and justice for the American people when it comes to data protection and anti-trust. Bruce has always been solely committed to fighting for ADA rights in the disabled community. We support his calling and will continue to align with him and his team when needed. On a personal note, we’ve been friends for more than 40 years. This transition is about firm focus. I’m excited for the opportunities of both firms.
Partner, Todd Carpenter, has been with our firm for the better part of 5 years. Bruce Carlson has partnered with Ian Brown, a former Carlson Lynch attorney.” said Gary Lynch of Lynch Carpenter.

The firm’s name change to Lynch Carpenter will be made official on Tuesday March 1, 2022.

About Lynch Carpenter
Lynch Carpenter fights for everyday people. When the system fails an employee, consumer or a citizen whose rights have been violated, Lynch Carpenter is here to uphold justice. No one should be denied the wages they deserve, face discrimination or contend with unfair business practices. We prosecute individual and class action lawsuits, holding wrongdoers accountable.

About Carlson Brown
Carlson Brown is a Pittsburgh-based law firm specializing in Americans with disabilities act (ADA) violations. The firm, founded by partners Bruce Carlson and Ian Brown, is primarily interested in the impact of accessibility, and evolving technology on disadvantaged communities, particularly the disabled community. Carlson Brown believes in defending the rights of all individuals, regardless of physical or mental ailments.

Kelly Iverson


Yesterday, the federal judge in charge of the multidistrict litigation by users of Philips recalled CPAP, Bi-Level PAP and mechanical ventilators has appointed two men and two women to serve as co-lead counsel after interviewing more than 75 candidates for the position. 10 were appointed to a leadership development committee aimed at promoting lawyers who are younger or less experienced in multidistrict litigation. The plaintiffs' leadership team includes 18 women and 8 attorneys of color.

Senior U.S. District Judge Joy Flowers Conti in Pittsburgh chose Sandra Duggan of Levin Sedran & Berman, Kelly Iverson of Lynch Carpenter, Steven Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith and Christopher Seeger of Seeger Weiss to lead the litigation.

The Philips MDL involves more than 150 lawsuits alleging that CPAP (continuous positive airway pressure) and other breathing machines recalled by Philips on June 14 of last year caused various cancers. The cases include class actions and personal injury lawsuits, as well as medical monitoring claims.

“We have the privilege to represent purchasers and users of the recalled Philips devices and look forward to marshaling our efforts on behalf of these plaintiffs and to working with the stellar group of lawyers appointed by Judge Conti.” Kelly Iverson, Lynch Carpenter Partner and Co-Lead Counsel.

Trial has not yet been scheduled, however, last month, Philips predicted the recall would affect 5.2 million devices worldwide. We will continue to update the public as new information becomes available. Read the full article here

Gary Lynch Headshot

Gary Lynch of Lynch Carpenter Elected Fellow of The College of Labor and Employment Lawyers

Firm’s founding partner honored for outstanding performance, integrity and excellence

PITTSBURGH (November 13, 2021) — The College of Labor and Employment Lawyers proudly announce the election of Lynch Carpenter founding partner, Gary Lynch, as a new Fellow. Election as a Fellow is the highest recognition by one’s colleagues for superior performance, commitment to integrity, dedication and overall excellence. The College is comprised of more than sixteen hundred members in forty-six states, Washington DC, Puerto Rico, and eight Canadian Provinces.
The installation of Fellows is scheduled for Saturday November 13, 2021 in Beverly Hills, CA during the American Bar Association’s Labor and Employment Law Section’s Continuing Legal Education Conference.

“I am honored to have been named a Fellow by The College of Labor and Employment Lawyers. It is a pleasure to receive this level of recognition from my peers. I would like to congratulate all the Fellows who have been elected alongside me. I look forward to working closely with you all and help guide this organization for years to come.” said Gary Lynch of Lynch Carpenter.

About Lynch Carpenter

Lynch Carpenter fights for everyday people. When the system fails an employee, consumer or a citizen whose rights have been violated, Lynch Carpenter is here to uphold justice. No one should be denied the wages they deserve, face discrimination or contend with unfair business practices. We prosecute individual and class action lawsuits, holding wrongdoers accountable.

About the College of Labor and Employment Lawyers

The College of Labor and Employment Lawyers was the vision of a number of Fellows. The idea was to further establish the profession in all its aspects as one uniquely important to the world of labor and employment law, individual rights, collective bargaining and dispute resolution. The College was established in 1995 through an initiative of the Council of The Section of Labor and Employment law of the American Bar Association. It operates as a free-standing organization recognizing those who, by long outstanding service, have distinguished themselves as leaders in the field.

Contact Information:

Jennifer Schlieper,
Flying Scooter Productions

Austin Henry,
Flying Scooter Productions

TikTok and Parent Company ByteDance, Inc. Hit with $92 Million Settlement for Users’ Privacy Issues, According to FeganScott


A federal court in Chicago granted preliminary approval of a $92 million class action settlement on behalf of users of the TikTok app, and its predecessor application Musical.ly, over claims the social media company wrongfully collected users’ biometric information and private data, according to FeganScott. The social media company then allegedly disclosed users’ private data and information to third parties violating the Illinois Biometric Information Privacy Act (BIPA), the federal Video Privacy Protection Act, and other consumer and privacy protection laws.

Biometric identifiers are physiological traits such as fingerprints, facial patterns, or voice cadence. They can be used to verify a user’s identity and are thought to be more reliable than other forms of identification. This is against the law in Illinois.

The settlement includes a $92 million fund to be distributed to class members, a requirement for TikTok to make disclosures to consumers under certain circumstances, and for the company to initiate a newly designed data privacy compliance training program for all TikTok employees and contractors.

“A decade ago, we were concerned about companies like TikTok collecting email addresses and data on shopping behavior,” said Beth Fegan, managing member of the FeganScott Law Firm. “Now, the level of sophistication these companies employ has increased exponentially — they collect billions of user attributes ranging from eye color and facial expressions, to how a person moves or gestures.”

The court provisionally certified two settlement classes:

  • Nationwide Class: All persons who reside in the United States who used the App— the TikTok video-sharing application (or its Musical.ly predecessor) distributed in the U.S.— prior to September 30, 2021.
  • Illinois Subclass: All persons who reside in the State of Illinois and used the App in the State of Illinois to create videos prior to September 30, 2021.

Katrina Carroll, a partner at Carlson Lynch, argued the case in Illinois Federal Court with the Honorable Judge John Z. Lee presiding. Carroll said, “In a world where social media apps track our locations, record our conversations and surreptitiously log our preferences, we need to ensure customers are aware of how their data is being stored, used and sold for profit. Our hope is that this settlement will focus attention on the need for informed consumer consent before their biometrics are collected, and incite other states to enact laws similar to Illinois.”

The Illinois subclass recognizes the state is one of the few in the U.S. that has enacted strong, pro-consumer privacy laws through the Illinois Biometric Information Privacy Act (BIPA). BIPA mandates that companies that seek to collect biometric data must first obtain informed consent. Further, BIPA provides for statutory damages.

Ekwan Rhow, a partner at Bird Marella, affirmed that “this settlement is one of the largest ever achieved, in a consumer BIPA case, and one of the largest settlements in privacy class action.” He continued, “It serves as a reminder, to corporations, that privacy is important and that they will be held accountable for violating consumers’ rights.”

Members of the Illinois subclass will receive six pro rata shares of the settlement fund in recognition of BIPA, while members of the nationwide class will receive one pro rata share of the settlement. The value of those shares, or the amount of compensation to each class member, will be determined by the number of those who submit claims.

After claims are submitted and statements in support of or in opposition to the settlement are received, the court will hold a final fairness hearing on May 18, 2022. For more information about the settlement or deadlines, and to submit a claim, TikTok and Musical.ly users should visit the settlement website at www.tiktokdataprivacysettlement.com.

The consolidated cases are led by class counsel appointed by the court, including Elizabeth Fegan of FeganScott LLC, Katrina Carroll, Carlson Lynch LLP, and Ekwan Rhow, Bird Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

About FeganScott LLC:

FeganScott is a national class action law firm dedicated to helping victims of sexual abuse, discrimination, consumer fraud, antitrust violations and more. The firm is championed by acclaimed class action and veteran attorneys and has successfully recovered $1 billion for millions of victims nationwide. FeganScott is committed to pursuing successful outcomes with integrity and excellence, while holding unjust parties accountable. To learn more, visit www.feganscott.com.

About Carlson Lynch:

Founded in 2004, Carlson Lynch has earned national acclaim for complex litigation for plaintiffs in cyber security, anti-theft and consumer protection. The firm’s philosophy is to provide the same quality of representation to consumers and other individual plaintiffs as the nation’s largest defense-oriented law firms provide to their clients. The result is a practice that is both tough and sophisticated, advising diverse clients against some of the most aggressive legal teams in the country. Carlson Lynch has offices in Pittsburgh, San Diego, Los Angeles, Chicago and Philadelphia. www.lynchcarpenter.com

About Bird Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C

Established in 1981 and based in Los Angeles, Bird Marella is one of America’s premier litigation boutiques. The firm and its team of experienced trial lawyers handle complex high-stakes – and often high-profile – civil litigation for both plaintiffs and defendants nationwide, as well as white collar criminal litigation for corporate and individual defendants. The common theme in Bird Marella’s cases is not the underlying legal issues but the sophistication of the challenge and the need for innovative and insightful representation through trial. To learn more, please visit www.birdmarella.com.

View source version on businesswire.com: https://www.businesswire.com/news/home/20211004005856/en/


Mark Firmani




SOURCE: FeganScott LLC

Copyright Business Wire 2021.

PUB: 10/04/2021 02:16 PM/DISC: 10/04/2021 02:16 PM






This Document Relates to:
All Cases

Master Docket Misc. No. 1:21-mc-00001

MDL No. 2969


In its Initial Status Conference Order (ECF No. 3), the Court informed the parties that it would appoint Plaintiffs’ Lead Counsel and Plaintiffs’ Liaison Counsel. The Court received three (3) applications, representing a total of six (6) individuals. (ECF Nos. 85, 104, and 105.) The Court then heard from the respective candidates at the Initial Status Conference. After careful consideration of the applicants’ written submissions and oral statements as well as the criteria set forth in the Manual for Complex Litigation and Federal Rule of Civil Procedure 23(g), the Court issues the following Order:



The Court appoints the following attorneys as Plaintiffs’ Co-Lead Counsel:

Kelly K. Iverson
Lynch Carpenter, LLP
1133 Penn Ave., 5th Floor
Pittsburgh, PA 15222

Adam M. Moskowitz
The Moskowitz Law Firm PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134

Plaintiffs’ Co-Lead Counsel will be responsible for coordinating pretrial proceedings on behalf of Plaintiffs. They will have the following responsibilities, and such responsibilities may be modified by subsequent Order. The responsibilities include, without limitation:

  1. Determine––after such consultation with other leadership counsel including members of the Plaintiffs’ Steering Committee (“PSC”) (see Section 3 below delineating the PSC’s responsibilities), and other co-counsel as appropriate––and present to the Court and opposing parties the position of Plaintiffs as to all matters arising during pretrial proceedings, including but not limited to attending conferences, filing and presenting jointly drafted motions, drafting joint status reports, etc.;
  2. When a case that arises out of the subject matter of the actions in this MDL is hereinafter filed in this Court or transferred from another Court, Plaintiffs’ Co-Lead Counsel shall advise the Court and the parties so that the Clerk of this Court may post a copy of this Order and other relevant Orders in the separate action. Such will serve to advise the attorneys for the plaintiff(s) in the newly filed or transferred case and to any new defendant(s) in the newly filed or transferred case of this action of the procedural status of this MDL and so that new counsel may make the appropriate entry on the docket for this action;
  3. Coordinate the initiation and conduct of discovery and other activities on behalf of Plaintiffs consistent with the Federal Rules of Civil Procedure relating to discovery or any other actions directed by any subsequent Order of this Court;
  4. Coordinate with members of the PSC in management of the litigation and fund the necessary and appropriate costs of Plaintiffs’ discovery and other common benefit efforts, including the maintenance of a Plaintiffs’ document depository;
  5. Coordinate settlement discussions or other dispute resolution efforts on behalf of Plaintiffs, but not enter binding agreements except to the extent expressly authorized;
  6. Delegate specific tasks to other Plaintiffs’ counsel in the matter to ensure that pretrial preparation is conducted effectively, efficiently, and economically;
  7. Monitor the activities of Plaintiffs’ co-counsel to ensure schedules are met and unnecessary expenditures or time and expense are avoided;
  8. Consider the qualifications of non-leadership Plaintiffs’ counsel for specific tasks;
  9. Consult with and employ consultants or experts on behalf of Plaintiffs, as necessary;
  10. Enter into stipulations with opposing counsel as necessary for the conduct of this litigation;
  11. Prepare and distribute periodic status reports to the parties;
  12. Maintain adequate time and disbursement records covering service of designated counsel and establishing guidelines as to keeping of time records and expenses;
  13. Encourage full cooperation and efficiency among all Plaintiffs’ counsel;
  14. Submit, if appropriate, additional committees and counsel on behalf of Plaintiffs for designation by the Court;
  15. Perform such other duties as may be incidental to proper coordination of Plaintiffs’ pretrial activities or authorized by further order of the Court.



The Court appoints the following attorney to serve as Plaintiffs’ Liaison Counsel:

George L. Stewart
Reed Smith, LLP
225 5th Ave.
Pittsburgh, PA 15222

Plaintiffs’ Liaison Counsel will be charged with responsibility for administrative matters as set forth below and as may be modified by subsequent Order. Liaison Counsel will be expected to:

  1. Maintain an up-to-date, comprehensive Service List of Plaintiffs and promptly advise defense counsel of changes to Plaintiffs’ Service List;
  2. Receive and distribute to Plaintiffs’ Counsel orders, notices, and correspondence from the Court, to the extent such documents are not electronically filed;
  3. Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery, pleadings, correspondence, and other documents from defense counsel that are not electronically filed;
  4. Establish and maintain a document depository;
  5. Maintain complete files with copies of all documents served upon them in hard copy or electronic form to make files available to Plaintiffs’ counsel upon request;
  6. Revive orders and notices from the Judicial Panel on Multidistrict Litigation pursuant to Rule 5.2 (e) of the Panel’s Rules of Procedure or from the Court on behalf of all Plaintiffs, and prepare transmittal of copies of such orders and notices to Plaintiffs’ counsel;
  7. Assist Plaintiffs’ Co-Lead Counsel and the PSC in resolving scheduling conflicts among the parties and coordinating activities, discovery, meetings, and hearings;
  8. Maintain a filed-endorsed copy of this Order, and serve the same on the parties and/or their attorneys in any actions later instituted in, removed to, or transferred to these proceedings;
  9. Maintain records of receipts and disbursements advanced by members of the PSC and received by the PSC, and report in writing to the PSC concerning disbursements and receipts;
  10. Act as the treasurer for any common benefit assessments and expenses;
  11. Arrange monthly conference call numbers and provide the number to the Court and all counsel; and,
  12. Perform other functions necessary to effectuate these responsibilities or as may be expressly authorized by further Orders from the Court or requested by Plaintiffs’ Co- Lead Counsel. Further, one or more duties of Plaintiffs’ Liaison Counsel as set forth herein may also be performed by Plaintiffs’ Co-Lead Counsel or otherwise at their direction, if in their judgment such reallocation of duties leads to greater efficiency and expense savings. Plaintiffs’ Liaison Counsel nonetheless remains responsible for the fulfillment of the obligations set out herein unless relieved of same by further Order.

Notwithstanding the appointment of Plaintiffs’ Liaison Counsel, each Plaintiff’s counsel shall have the right to participate in all proceedings before the Court as fully as such counsel deems necessary. Such Liaison Counsel shall not have the right to bind any party as to any matter without the consent of counsel for that party, except Plaintiffs’ Liaison Counsel’s own clients. Further, such Liaison Counsel shall remain free to represent the interests and positions of their clients free of any claim (including, without limitation, any claim of conflict) arising from service as Plaintiffs’ Liaison Counsel.



To further promote efficient management of the MDL and pursuant to the guidance set forth in the Manual for Complex Litigation (Fourth) § 40.22, the Court hereby establishes a Plaintiffs’ Steering Committee (“PSC”). The following individuals, along with Plaintiffs’ Co- Lead Counsel and Liaison Counsel, are appointed to the PSC:

Richard Golomb
Golomb & Honik, P.C.
1835 Market St., Suite 2900
Philadelphia, PA 19103

John “Jack” Goodrich
Goodrich & Associates, P.C.
429 4th Ave., Suite 900
900 Law & Finance Building
Pittsburgh, PA 15219

William “Chip” F. Merlin
Merlin Law Group
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602

The PSC shall assist Plaintiffs’ Co-Lead Counsel and Plaintiffs’ Liaison Counsel in coordinating Plaintiffs’ pretrial activities, fulfilling the obligations as set forth in Sections 1 and 2 above, and in planning for trial. In addition, the PSC shall, as approved by Plaintiffs’ Co-Lead Counsel, establish a federal-state liaison advisory subcommittee of up to three (3) counsel of record in this proceeding, including Mr. Goodrich. The purpose of this subcommittee is to serve as liaison relative to federal and state court proceedings involving cases in which similar issues are raised, including in other cases against the same Defendants. The PSC may create other such committees and subcommittees (made up of counsel of record in this proceeding) as are necessary and proper to efficiently carry out its responsibilities, designate members thereof, and to delegate common benefit work responsibilities to selected counsel (including non-members of the PSC), as may be required for the common benefit of Plaintiffs.

To the extent a committee or subcommittee needs additional support with its common benefit work, it may seek the participation and assistance of non-leadership counsel. However, no common benefit work may be performed by non-leadership counsel without the prior approval of Plaintiffs’ Co-Lead Counsel. The Court may amend or expand the PSC upon request from the Plaintiffs’ Co-Lead Counsel or on the Court’s own motion, if and as circumstances warrant.



Those appointed to Plaintiffs’ leadership positions, including the PSC, are expected to confer within fourteen days (14) days of the filing of this Order to establish the leadership structure, allocate responsibilities, institute a billing protocol, and to document the same. Those appointed to Defendants’ leadership positions (see Section 11 below) are also directed to confer to discuss and document the same as to the organization of matters on behalf of Defendants.



All appointments, for and to Plaintiffs’ and Defendants’ leadership responsibilities, are made for an initial one-year period from the date of this Order and will expire on April 30, 2022, unless extended by further Order. The Court may terminate or modify any appointment made by this Order for good cause shown and after notice and an opportunity to be heard, or upon the request of any appointee. Thirty (30) days prior to the expiration of this Order’s appointments, counsel may apply for the new appointment term. An appointment application process will be established at an appropriate time in advance of the expiration date. Applications for appointment must detail the nature and scope of the attorney’s work on this litigation, including the time and resources that they expended during the previous term.



All appointments of specific lawyers by this Order are personal in nature. As such, each appointee must assume personal responsibility for the performance of their responsibilities. No other attorneys, including members of an appointee’s law firm, may substitute for the appointee in the fulfillment of their exclusive duties, except with prior approval of the Court. The Court may add or replace appointees on their request, on request of the Plaintiffs’ or Defendants’ leadership team as to the involved team, or on its own motion, if and as circumstances warrant. Notwithstanding the above, any appointee attorney may utilize the services of a member or associate lawyer of their law firm or law partnership (or appropriate paraprofessional and clerical personnel) to assist them in fulfilling their obligations under this Order when doing so results in representational efficiencies and/or expense savings.



This Order shall not be interpreted by any party or any person as indicative of the Court’s decision on the issue of class certification. This Order does not assume that class certification is or is not warranted nor does it foreclose any argument that any party may wish to raise relative to class certification. However, if one or more classes is certified in this matter, counsel appointed to leadership positions or serving as a member of a steering or other committee contemplated by this Order (and members of their immediate family) will be excluded from membership in the class.



Prior to any Court-scheduled conference, Plaintiffs’ Liaison Counsel and a Defendants’ Co-Lead Counsel (see Section 11 below) shall submit a proposed joint agenda on the Lead Miscellaneous Docket (21-mc-0001) seven (7) days before the conference.

Plaintiffs’ Liaison Counsel and a Defendants’ Co-Lead Counsel shall also jointly file on the Lead Miscellaneous Docket a list detailing the names, email addresses, and phone numbers of the attorneys who plan to appear via video or phone (if such is the format of the conference), or in person, at least three (3) full days before such conference, absent urgent circumstances or the setting of such a conference by the Court on shorter notice. The Court will circulate participation instructions via email to those who wish to appear by video and/or phone.

Finally, at least three (3) business days prior to all conferences, Plaintiffs’ Co-Lead Counsel and Defendants’ Co-Lead Counsel shall each submit a position letter to this Court. The position letter shall set forth the following: (a) a brief recitation of the facts; (b) a discussion of the party’s strengths and weaknesses; and (c) the party’s settlement posture. To ensure candor, Co-Lead Counsel are directed to fax or email their position letters to Chambers only. All position letters will be kept confidential and will not be shared with opposing counsel.



All communications with the Court must be through Co-Lead Counsel or Liaison Counsel. If circumstances require direct correspondence with the Court by individual counsel, copies of any such communications must simultaneously be served on all Co-Lead Counsel and Liaison Counsel.



The Court will make the final determination as to the compensation and reimbursement of Plaintiffs’ counsel, if any. As such, any Plaintiff seeking the award of fees and costs at the end of, or other point in, this litigation must present to the Court clear and definitive records prepared as to the fees and costs incurred. All timekeepers carrying out work for Plaintiffs’ common benefit, including PSC members, who may look to any common fund or agreement for reimbursement or compensation shall maintain detailed and contemporaneous time records. Plaintiffs’ Co-Lead Counsel are responsible for ensuring that the following guidelines are adhered to by all Plaintiffs’ counsel who carry out work for Plaintiffs’ common benefit:

  1. Plaintiffs’ Co-Lead Counsel shall maintain detailed billing records that will include a description of each legal service performed, the time required to perform such described legal services, and the billing rate of the timekeeper performing each service. Plaintiffs’ Co-Lead Counsel will ensure that all counsel for Plaintiffs keep such billing records. Block billing is not permitted. Time must be recorded by specific task.
  2. All work performed by any Plaintiffs’ counsel shall be coordinated with Plaintiffs’ Co-Lead Counsel to avoid duplicative work. Any work performed by Plaintiffs’ counsel that has not been coordinated with Plaintiffs’ Co-Lead Counsel may not be subject to reimbursement if an award of attorneys’ fees is made in this action.



Defendants requested in the Joint Proposed Agenda to the Court (ECF No. 107) that the following attorneys will serve as their Co-Lead Counsel, and they are so designated:

Adam J. Kaiser
Alston & Bird, LLP
90 Park Ave., 15th Floor
New York, NY 10016-1387

Tiffany L. Powers
Alston & Bird, LLP
1201 West Peachtree St.
Atlanta, GA 30309-3424

Kristin A. Shepard
Alston & Bird, LLP
950 F St., NW
Washington, DC 20004

The leadership responsibilities set forth above, and specifically as stated within Sections 1(a)–(o) of this Order, apply equally to the above appointees as to such enumerated matters on behalf of Defendants to the extent conceptually applicable. Defendants also requested in the Joint Proposed Agenda to the Court (ECF No. 107) that the following attorneys serve as Co-Liaison Counsel. To facilitate the sound administration of these proceedings, each of the following counsel, along with Defendants’ Co-Lead counsel, are appointed as the Defendants’ Steering Committee (“DSC”):

Robert T. Horst
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Robert M. Runyon III
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Matthew B. Malamud
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Paul K. Geer
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

Richard DiBella
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

Tara L. Maczuzak
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

The responsibilities set forth above as to Plaintiffs’ Co-Lead Counsel, Plaintiffs’ Liaison Counsel, and the PSC/subcommittee members, and specifically as stated within Sections 2(a)–(l) of this Order (excepting Paragraph 10 as well as the obligation to form a federal-state liaison subcommittee), apply equally to Defendants’ Co-Lead Counsel and the DSC members as to matters related to the defense of these proceedings, to the extent applicable.



The Court hereby directs Co-Lead Counsel for Plaintiffs and Co-Lead Counsel for Defendants to confer and file status report(s), jointly or separately as noted below, as to procedural or other next steps in light of the following recent events including but not limited to:

  1. Judge Ward’s decision in Ungarean v. CNA, No. GD-20-006544 (Pa. Com. Pl. Mar. 22, 2021);
  2. Appeal of Judge Ward’s July 2020 Order coordinating COVID-19 business interruption loss insurance litigation against Erie Insurance Exchange, see Tambellini, Inc. v. Erie Ins. Exch., Nos. GD-20-005137; GD-20-006901 (Pa. Com. Pl. July 23, 2020), appeals docketed, Nos. 902 WDA 2020; 903 WDA 2020 (Pa. Super. Ct. Aug. 31, 2020);
  3. Judge Gibson’s decision in Windber Hosp. v. Travelers Prop. Cas. Co. of Am., No. 20-80, 2021 WL 1061849, at * 1 (W.D. Pa. Mar. 18, 2021);
  4. Judge Stickman’s decision in 1 S.A.N.T., Inc. v. Berkshire Hathaway, Inc., — F. Supp. 3d — , No. 20-862, 2021 WL 147139, at * 1 (W.D. Pa. Jan. 15, 2021), appeal docketed, No. 21-1109 (3d Cir. Jan. 21, 2021);
  5. The Third Circuit consolidated appeal of COVID-19 business interruption loss insurance cases, see Order, Wilson v. USI Ins. Servs. LLC, No. 20-3124 (3d Cir. Apr. 6, 2021), ECF No. 43;
  6. The recent certification of a state law question to the Supreme Court of Ohio on similar issue(s) raised in this MDL, see Neuro-Commc’n Servs. Inc. v. Cincinnati Ins. Co., No. 2021-0130 (Ohio Apr. 14, 2021);
  7. The filing of an unopposed motion to stay in a case arising in the U.S. District Court for the District of New Jersey, see Unopposed Motion to Stay Litigation Pending Resolution of Third Circuit Appeal, Ambulatory Care Ctr. v. Sentinel Ins. Co., No. 20-05837 (D.N.J. Apr. 21, 2021), ECF No. 21; and,
  8. The Third Circuit Oral Argument held on April 28, 2021, regarding the appeal of Judge Fischer’s decision in Dianoia’s Eatery, LLC, v. Motorists Mut. Ins Co., No. 20- 787, 2020 WL 5051459, at *1 (W.D. Pa. Aug. 27, 2020), appeal docketed, No. 20- 2954 (3d Cir. Sept. 24, 2020), see ECF No. 49.

Based on the foregoing, the Court hereby ORDERS that counsel shall confer and file a joint status report, or separate status reports if Co-Lead Counsel for Plaintiffs and Co-Lead Counsel for Defendants are unable to reach agreement, proposing procedural and/or other next steps this Court should take to ensure just and efficient disposition of the cases in this MDL. The status report(s) shall be filed on or before May 14, 2021, and shall be filed on the Lead Miscellaneous Docket. The Court would note that it strongly prefers a single joint such report, even if differences of position as to certain discrete matters are noted therein.

s/ Mark R. Hornak
Mark R. Hornak
Chief United States District Judge

cc: All counsel of record
Date: April 30, 2021

woman filming another woman dancing

Attorneys Urging TikTok Settlement Approval Call Objectors’ Proposed Opt-Out Procedures ‘Suspicious’ 

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 Lynch Carpenter 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 Lynch Carpenter’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.

phone with tiktok app on screen

Ill. Judge Again Asked To Weigh Approval Of $92M TikTok Deal

Law360 (April 19, 2021, 9:52 PM EDT) -- TikTok users who accused the social media giant of privacy violations in multidistrict litigation again asked an Illinois federal judge Monday to grant initial approval to a $92 million settlement over the concerns of objectors questioning its value for the class and, most recently, the proposed procedures for opting out.

U.S. District Judge John Z. Lee didn't rule after a second preliminary approval hearing on Monday, and instead told the parties to expect a written decision. He'll also now consider whether to order TikTok to provide inbox notice of the settlement within the app, something the short-form video app had initially resisted but has since agreed to do, following objections to the proposed notice plan, if ordered by the court.

Co-lead attorney for the TikTok users, Katrina Carroll of Lynch Carpenter LLP, said during the hearing that that deal was a "terrific settlement" in light of threshold risks, like an arbitration clause, "that would have completely eliminated plaintiffs' ability to get out of the gate."

"This settlement is squarely within the range of reasonableness, and that's why we're recommending it," she said.

But several objectors maintained that the deal is insufficient.

Edelson PC attorney Ryan Andrews, representing objector Dennis Litteken, told the court that the settling plaintiffs must provide concrete estimates of exactly who the in-app and direct notice will reach. And since the parties have essentially agreed to in-app notice, the claims rate is going to increase beyond what was initially predicted, he said.

"The problem is, if there are substantial claims, the relief offered begins to look inadequate," Andrews said. A 10% claims rate would get most class members "barely enough to purchase a coffee at Starbucks," he said, while a 5% rate would "maybe get enough to buy lunch."

"I just think that times have changed. … The public thinks they deserve more, and courts are requiring more," he said. "I think we need to be better."

Judge Lee did appear skeptical of the arguments made by objectors claiming that the agreed-upon deal blocks their right to individually arbitrate their claims.

Brian Behnken, Joshua Dugan and 957 other unnamed individuals hoping to opt out of the TikTok settlement argued earlier this month that the settlement violates the Federal Arbitration Act by stopping them from entering arbitration, asking the court to either deny preliminary approval of the agreement or tweak the terms to explicitly exclude claimants who seek to enter arbitration or allow such plaintiffs to opt out online or en masse through their counsel.

Judge Lee did say Monday that he thought a website for claims ought to have an opt-out form available, with a method by which an individual could send the opt-out form to the settlement administrator electronically and not necessarily by physical mail, as required under the current deal.

But there's nothing stopping any class member from opting out and initiating arbitration, or initiating it right now, the judge said. And he questioned how burdensome it was to ask someone to "sign a piece of paper" if they want to opt out.

"There has to be some affirmative showing of intent," Judge Lee said.

Jonathan Gardner of Labaton Sucharow LLP, representing the opt-out objectors, said requiring them to take the affirmative step of opting out effectively adds a term to the agreement to arbitrate between TikTok and users. That very agreement was also used by TikTok as a "bludgeon against plaintiffs' counsel to drive down the value of the settlement," he said.

"Why, in those circumstances, would you make it as difficult as possible to make people exercise their opt-out rights and pursue arbitration?" he said.

Carroll countered that it was "suspicious" that the firm is telling the court that nearly 1,000 people want to opt out and pursue arbitration but hasn't provided any information on who those individuals are or evidence that they want to pursue arbitration willingly.

The opt-out requirements in this case are the same standard procedures used in thousands of other class action cases, she said.

"We're not adding any burden. What we're asking for is basic info on who these people are," Carroll said.

And Scott Drury of Loevy & Loevy, representing objector Mark S., again raised concerns that there's a conflict of interest between minor plaintiffs, who have a different and stronger claim because they're not subject to the arbitration provision, and adult users.

Minors under 13 and minors under 18 should be grouped into subclasses, he said.

Carroll argued that class counsel looked at every available claim for minors and adults and determined that they could recover both under the settlement proposed in this case and the one proposed in a similar case alleging that TikTok collected and shared personally identifiable information about minors under 13 without parental consent.

Minors have "always been at the top of our concern," which is why notice was also targeted to parents and not just users and why counsel pushed for broad injunctive relief, she said.

Under the proposed deal, in addition to the $92 million settlement fund, TikTok has also agreed not to use the app to collect users' biometric data, nor will it collect geolocation or GPS data, transmit U.S. user data outside of the U.S. or store U.S. user data in databases outside of the U.S., unless it makes a disclosure in its privacy policy and complies with all laws.

The social media company will also require new training on compliance with data privacy laws and company procedures for all of its incoming employees and contractors, with annual training thereafter, and TikTok will hire a third party to review the compliance training for the next three years, according to the motion for preliminary approval.

The settling plaintiffs are represented by Lynch Carpenter LLP, Fegan Scott LLCBird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PCFreed Kanner London & Millen LLCSusman Godfrey LLP, Bottini & Bottini Inc., Hausfeld LLPBurns Charest LLP and Clifford Law Offices PC.

TikTok is represented by Anthony J. Weibell of Wilson Sonsini Goodrich & Rosati PC.

The objectors and arbitration claimants are represented by Michael D. Smith of the Law Office of Michael D. Smith, and Jonathan Gardner, Melissa H. Nafash and Jonathan D. Waisnor of Labaton Sucharow LLP.

Objector Dennis Litteken is represented by Jay Edelson, Ryan Andrews and J. Eli Wade Scott of Edelson PC.

Objector Mark S. is represented by Scott Drury and Michael I. Kanovitz of Loevy & Loevy.

The case is In re: TikTok Inc. Consumer Privacy Litigation, case number 1:20-cv-04699, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Ben Kochman. Editing by Rich Mills.

Link: https://www.law360.com/technology/articles/1376563/ill-judge-again-asked-to-weigh-approval-of-92m-tiktok-deal