Holly Brady pictured (L) in 2018 at her nomination hearing (via Senate Judiciary Committee), (R) Todd Rokita in a photo provided by his office.
Judging by the opening lines of the opinion and order issued Tuesday by a Donald Trump-appointed lifetime member of the federal judiciary, the way the Indiana Attorney General’s Office and a team of high-powered private lawyers went about suing TikTok was not impressive.
U.S. District Judge Holly Brady began by comparing the length of the complaint — and how many footnotes were in it — to how little of the complaint was dedicated to “actual” legal arguments relevant to the claims therein.
The judge set the stage by suggesting that TikTok filed to remove the state case to federal court because the complaint was poorly constructed. The complaint included a line about the “Chinese Government and Communist Party” using TikTok to “help develop artificial intelligence technologies and assist China in its espionage efforts.” The lawsuit also used the term “Chinese Communist Party” dozens of times.
Judge Brady said such language was actually irrelevant to the legal claim raised.
“This case was initiated by a fifty-one page, two hundred thirty-four paragraph, one hundred forty-one footnote complaint. Only fifteen paragraphs and two pages address Indiana’s actual legal claim,” the judge wrote, before seemingly expressing displeasure that this was something she had to rule on. “Had Indiana filed short and plain statement of its claim, this case would have stayed in the Allen County, Indiana, Superior Court where it was filed. But since more than 90% of the complaint was devoted to irrelevant posturing, Defendants removed the case under 28 U.S.C. §§ 1441(a) and 1331, arguing federal question jurisdiction under Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), or that the case is governed by federal common law.”
Judge Brady did not stop there. She said the plaintiffs, represented by lawyers in the AG’s office and the Washington, D.C., law firm Cooper & Kirk, PLLC, had managed to stretch the theory of their case into “a work longer than” something Franz Kafka would have dared to write.
“The thrust of Indiana’s complaint is that Defendants, in their disclosures to Indiana consumers, fail to disclose ‘the truth that [users’] data may be shared with individuals and entities subject to Chinese laws,’” the judge wrote. “That one sentence thesis statement is then stretched into a work longer than Kafka’s The Metamorphosis.”
The judge appeared annoyed that it took 47 pages of reading to find out what the lawsuit was all about.
“The complaint describes the breadth of information gathered by the TikTok app, discusses—at length—the connections between TikTok’s parent company, ByteDance Ltd. (“ByteDance”) and the Chinese Government, and then goes into detail explaining how, in Indiana’s view, all that gathered information can—and presumably is—accessed by China and the Communist Party,” the opinion and order said. “On page 47, Indiana finally states its one claim: that Defendants have violated Indiana’s Deceptive Consumer Sales Act, Ind. Code § 24-5-0.5, et seq., ‘by deceiving and misleading Indiana consumers . . . about the risk of the Chinese Government and Communist Party accessing and exploiting their data.””
When the lawsuit was first filed in an Allen County, Indiana, court in December 2022, Indiana Attorney General Todd Rokita — a conservative Republican who made waves nationally when he vowed to investigate the doctor who performed an abortion on a 10-year-old girl who was raped after the U.S. Supreme Court overturned Roe v. Wade — said this case and a second lawsuit were meant to put a stop to a “malicious and menacing threat unleashed on unsuspecting Indiana consumers by a Chinese company that knows full well the harms it inflicts on users.”
“With this pair of lawsuits, we hope to force TikTok to stop its false, deceptive and misleading practices, which violate Indiana law,” Rokita said at the time, calling the TikTok app a “clear and present danger to Hoosiers.” One lawsuit accused TikTok of luring unsuspecting minors to the platform filled with “extreme examples” of references to drugs, profanity, or sexual content, the AG noted.
The other lawsuit, which we now discuss, focused on protecting Indiana consumers from being at risk of having their “highly sensitive data and personal information” accessed by the Chinese government.
Ultimately, Judge Brady decided with the benefit of the briefs and oral argument that this case doesn’t present “any question of federal law that would need to be decided here,” despite the “hyperbolic allegations” included in the state law complaint about China potentially using TikTok to help its “espionage efforts.”
“Conceding that these allegations are in the complaint, the Court does not agree that potential espionage has anything to do with Indiana’s legal claim,” the judge wrote. “Instead, Indiana must prove that Defendants committed an unfair, abusive, or deceptive act, omission, or practice in connection with a consumer transaction’ as that is defined in Indiana Code.”
Therefore, the judge ruled the case should go back to state court where it was originally filed.
Judge Brady is certainly not alone when it comes to federal judges who absolutely detest excessive footnotes. Brady has been a federal judge in the Northern District of Indiana since April 2019.
Law&Crime reached out to AG Rokita’s office for comment on the ruling.
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