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A federal judge from the U.S. District Court for the District of Columbia granted TikTok’s motion for preliminary injunction, resulting in a nationwide temporary suspension of an order from the U.S. Department of Commerce (“Commerce”) for Apple and Google to remove TikTok from its U.S. app stores.

Last week, Chinese social media app WeChat was separately granted a similar injunction by a federal judge from the U.S. District Court for the Northern District of California. The two China-based smartphone apps are facing impending bans pursuant to Executive Orders (“E.O.”) 13942 (for TikTok) and 13943 (for WeChat), issued by the President on August 6, 2020.

Following the court’s ruling, Commerce issued a statement that it intends to comply with the injunction, but that it also “intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.” The preliminary injunction effectively grants TikTok’s parent company, ByteDance Ltd. (“ByteDance”), more time to finalize and obtain approval of its agreement with Oracle and Walmart. The pending deal over TikTok will still need to be reviewed and approved by both the Committee on Foreign Investment in the U.S. (“CFIUS”) and the Chinese authorities.

The court denied TikTok’s request for an additional preliminary injunction against the implementation of the second set of restrictions, which take effect on November 12, 2020. These restrictions would prevent the provision of internet hosting, content delivery networks, or other internet transit services to TikTok.

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Beau Jackson is a Kansas City-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Section 337 practice.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

China-based smartphone apps, TikTok and WeChat, have each received a reprieve from the respective bans, which were originally ordered by President Trump on August 6, 2020, against both parties and were scheduled to take effect on September 21, 2020. Please see our previous post covering the Executive Orders. Pursuant to the Executive Orders banning the apps on national security grounds, the U.S. Department of Commerce (“Commerce”) published final rules for implementing the bans on September 19, 2020, which were subsequently withdrawn. Commerce then delayed the order to withdraw TikTok from U.S. app stores until September 27, 2020, at 11:59 pm. Meanwhile, Commerce’s order to withdraw WeChat has been suspended temporarily due to an injunction granted by the U.S. District Court for the Northern District of California.

In an effort to come into compliance with the Executive Order and avoid the ban, TikTok’s parent, ByteDance Ltd. (“ByteDance”), negotiated a deal with Oracle and Walmart to keep TikTok operating in the United States. Under the terms of the agreement, based on media reports, TikTok will be spun off into a U.S.-based company majority-owned by its Chinese parent ByteDance, while Oracle and Walmart will take up to a twenty (20) percent stake of the new U.S. company. ByteDance will maintain control over the app’s algorithm, while user data will be stored in the U.S. It is possible that the ban on TikTok may be formally lifted once the deal is finalized since President Trump has given his personal approval of the agreement, though that is unclear at this time.

A judge from the U.S. District Court for the Northern District of California granted a nationwide injunction on September 19, 2020, temporarily suspending Commerce’s order for Apple and Google to remove WeChat from their app stores. Plaintiffs U.S. WeChat Users Alliance, et al. allege that the ban violates First Amendment rights, especially for Chinese Americans. Judge Beeler stated that the plaintiffs “have shown serious questions going to the merits of the First Amendment claim” and that “the balance of hardships tips in the plaintiffs’ favor”.

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Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Grant Leach is an Omaha-based partner with the law firm Husch Blackwell LLP focusing on international trade, export controls, trade sanctions and anti-corruption compliance.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

D.C. District Court Judge Blocks Commerce’s TikTok Ban

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