CHICAGO — A federal judge has been asked to sign off on a nearly $10 million settlement that would end a class action lawsuit accusing plasma donation company Octapharma of violating Illinois' biometrics privacy law.
The action began in December 2019 when Mary Crumpton sued Octapharma Plasma in Cook County Circuit Court, alleging it violated the Illinois Biometric Information Privacy Act without providing disclosures or obtaining consent to collect fingerprints for its donor management system.
Crumpton’s attorneys, J. Eli Wade-Scott and Schuyler Ufkes, of Edelson, PC, of Chicago, and David Fish, of Fish Potter Bolaños, PC, of Naperville, filed a motion Nov. 3 asking U.S. District Judge Virginia Kendall to approve a settlement deal.
According to the motion, Germany-based Octapharma would create a settlement fund worth $9.99 million to compensate 76,826 plasma donors who used the system between Dec. 2, 2014, and Feb. 4, 2020. Class members would have to submit valid claim forms, by mail or online, to obtain a prorated share.
Crumpton’s could get up to 35% of the total settlement in fees, or about $3.5 million. Crumpton would get a $5,000 incentive award as class representative.
The amount donors could receive from the settlement will depend on how many donors submit valid claims.
If every donor submitted a valid claim, each would collect about $84, according to details submitted with the court. However, Crumpton’s attorneys anticipate a claims rate of just 10-20%, meaning valid claims could be worth $400-$800 per plasma donor claimant.
“This amount dwarfs the amounts recovered in many other statutory privacy class actions, particularly against a backdrop where settlements have commonly secured no relief to the class...,” according to the motion. “Some BIPA settlements, too, have depressed the amount defendants have to pay with credit monitoring, caps on the amount claiming class members can recover and reversion of unclaimed funds.”
While the agreement does not provide for any of the funds to revert to Octapharma, it does stipulate that funds from any unchashed checks or rejected electronic payments would go to the American Civil Liberties Union of Illinois for its government accountability and personal privacy work.
According to its website, Octapharma operates five Illinois plasma donation sites, including sites in Chicago, Riverside, Melrose Park and Bridgeview.
According to the motion, Crumpton and all plasma donors had to provide a fingerprint scan to enroll in the donor management system and then use their prints before each successive donation. She accused Octapharma of “failing to develop a data-retention policy and guidelines for permanently destroying biometric data, failing to publicly disclose any such policy and failing to comply with any such policy.”
Octapharma removed the complaint to federal court and argued federal law pre-empts BIPA and that it is exempt because it already complies with the Health Insurance Portability and Accountability Act. In January 2021, Judge Kendall fully rejected the federal pre-emption argument with prejudice and struck parts of Octapharma’s affirmative defense concerning HIPPA and that the prints were used to validate scientific testing or screening.
If Kendall does approve the settlement, it affects only Octapharma and not its third-party software vendor, Haemonetics Corporation. Crumpton’s lawsuit alleges that company stored fingerprint data without donors’ consent or knowledge, which constitutes a different BIPA violation.
In addition to the monetary relief, Octapharma has agreed to destroy any biometric data from Illinois donors who haven’t visited an Octapharma facility in at least three years, as well as to maintain the informed written consent plan and retention and deletion policy it launched Feb. 4, 2020.
Octapharma will submit a list of all donors who would qualify for the settlement, including last known mail and email addresses so the administrator can directly provide eligibility notification and directions to the settlement website.
Octapharma has been represented in the case by attorneys Daniel T. Graham, Timothy R. Herman and Jeffrey M. Sniadanko, of the firm of Clark Hill PLC, of Chicago.