TikTok’s Motion to Remand Ark. Case to State Court Is ‘Meritless,’ Says AG’s Reply

The complaint from Arkansas Attorney General Tim Griffin (R) alleging TikTok is violating the Arkansas Deceptive Trade Practices Act by duping Arkansas citizens about the risks of using TikTok belongs back in Union County Circuit Court, said Griffin’s reply brief Tuesday (docket 1:23-cv-01038) in U.S. District Court for Western Arkansas in El Dorado in support of his motion to remand (see 2306090047). The case originated in the circuit court before TikTok removed it to federal court.

U.S. District Chief Judge Susan Hickey granted Griffin leave earlier Tuesday to file a reply within seven days to TikTok’s June 26 remand opposition (see 2306260032), said her signed order. TikTok’s argument is that Griffin’s claims “implicate core federal concerns,” and the state shouldn’t be allowed “to ignore them to remain in state court.” According to TikTok, Griffin’s complaint involves the state’s “extraordinary attempt” to regulate “sensitive issues of national security and foreign affairs,” and those regulatory activities are well underway within the federal government.

But Griffin argues the court that resolves the case won’t need to answer “any federal legal question,” said his reply brief. Nor will that court in any way “review or impede the federal government’s separate efforts to address the national-security concerns that TikTok has created,” it said. TikTok’s remand opposition presents the Western District of Arkansas with arguments that were “squarely rejected” by the Northern District of Indiana in its Feb. 17 decision in Indiana v. TikTok, it said. TikTok’s arguments “are as meritless today as they were a few months ago,” it said: “The case should be remanded.”

TikTok asserts federal-question jurisdiction exists because the complaint’s state-law claim “has an embedded federal issue,” which, under the U.S. Supreme Court’s 2005 decision in Grable & Sons v. Darue Engineering, must be a question of federal law, said Griffin’s reply. But TikTok “still fails to say what that question is,” it said.

It can’t be the question of whether TikTok deceived consumers about the risk that the Chinese government will access their personal information, said the reply. As TikTok doesn’t contest, “that is a question of fact,” it said. Yet that’s the only question TikTok identifies, it said. TikTok’s case for federal-question jurisdiction “thus lacks a federal question,” it said. Its case “is founded on decisions that either predate and conflict with Grable or that directly undermine TikTok’s position,” it said.

TikTok then asks the court “to supply a federal question by creating one,” said the reply brief. But the argument that this case arises under federal common law isn’t based on “any existing federal common law,” it said. Rather, as TikTok admits, TikTok is asking the court “to fashion federal common law for purposes of this case,” it said. “The extraordinary nature of this argument is nowhere acknowledged in TikTok’s response, but it is clear from the argument’s complete lack of support,” it said.