CHICAGO — Plasma donation company BioLife has agreed to pay $6 million to end a class action lawsuit accusing it of improperly scanning plasma donors' fingerprints at its donation centers in Chicago's suburbs and elsewhere in Illinois.
Attorneys representing the plaintiffs could get up to 35% of the settlement, or about $2.1 million.
Plaintiffs' attorneys estimate BioLife plasma donors included in the settlement could be in line for payments of about $500-$800 each, depending on how many people submit valid claims for a cut of the funds.
David J. Fish
| fishlawfirm.com
David Fish and Mara Baltabos, of the Naperville firm of Fish Potter Bolaños, representing the class, filed a motion Dec. 22 asking a Cook County judge to grant preliminary approval of the settlement. The deal would end a lawsuit brought by named plaintiff James Phillips in September 2020.
The complaint alleges BioLife violated the Illinois Biometric Information Privacy Act when it collected fingerprint scans from “tens of thousands” of plasma donors without providing required disclosures or collecting informed, written consent.
BioLife Plasma, a division of Takeda Pharmaceutical Company, has locations in 35 states including collection facilities in Addison, Bolingbrook, DeKalb, Harwood Heights, Joliet and Villa Park. It has been defended by attorney Richard Tilghman, of the firm of Nixon Peabody, of Chicago.
Under the terms the motion details, BioLife would create a nearly $6 million settlement fund, intended to cover up to 57,525 people who scanned a fingerprint before making a plasma donation between Sept. 8, 2015, and Nov. 15, 2021.
Fish Potter Bolaños said it may ask for up to 35% of the gross fund for legal fees and litigation expenses — about $2.09 million.
Because BioLife updated its consent forms in March 2020, the class would be split into two subclasses, with about 89% of the net funds prorated to those who gave plasma before March 2020, and those members collecting a larger prorated share. Although BioLife maintains the March 2020 consent forms comply with BIPA, the plaintiffs argued BioLife still fell short by only posting the updated forms in their facilities and not online.
None of the money will revert to BioLife, so the amount each class member collects depends on the claim rate. According to the motion, a 15% claim rate would give $860 to each member of the class whose scans predated March 2020, while those in the second class would collect $88. For a 25% claim rate, those amonts would drop to $515 and $53, respectively.
Beyond the payouts, members of both classes can ask BioLife to delete their biometric data and also be able to view the company’s current BIPA policy. Money from any uncashed checks will be divided between Prairie State Legal Services and the Northern Illinois Food Bank.
“Compared against other privacy cases, this settlement provides an exceptional amount of monetary relief to class members,” according to the motion. “Many privacy cases have historically been settled for very little meaningful monetary relief, if any is provided to the class at all, which is a trend that unfortunately continues.”
The plaintiffs' lawyers argued the settlement protects class members' interests because BioLife might have prevailed at a trial by arguing exemption from BIPA under the law’s clause regarding a “patient in a health care setting” or a similar exemption invoking data protected under the federal Health Insurance Portability and Accountability Act. The class also noted BioLife might have argued plasma centers are governed by federal law and the Food and Drug Administration, which may pre-empt BIPA regulations.
BioLife did raise some of those arguments in its initial motion to dismiss the complaint from Cook County Circuit Court, while also indicating the claims exceeded BIPA’s statutory limitations. Settlement negotiations began in September 2021.
Fish Potter Bolaños, along with Edelson, P.C., of Chicago, represented a class of plasma donors in a similar lawsuit against Octapharma, a Germany-based plasma collector. That litigation moved toward a settlement worth nearly $10 million in November, again with payouts estimated at $400-$800 per class member.
Illinois' BIPA law - regarded as the most stringent and punishing biometrics privacy laws in the U.S. - has been used since 2015 by a growing cadre of plaintiffs' lawyers to bring class action lawsuits against businesses of all types and sizes throughout Illinois.
The lawsuits to this point have typically centered on claims those businesses failed to abide by the law's notice and consent provisions before scanning employees' or customers' fingerprints or other biometric identifiers.
The law carries with it the threat of judgments at trial, under which businesses could be forced to pay potentially crippling monetary damages. The law allows plaintiffs to demand damages of $1,000-$5,000 per violation. The law has been interpreted to define an individual violation as each time a business scans a worker or customer fingerprint or other biometric identifier. Depending on the number and type of scans, businesses of even moderate size operating in Illinois could face the risk of damages quickly rising into the many millions of dollars.
Courts have also offered little relief to this point, shooting down nearly every legal defense mounted by businesses to mitigate their exposure under the law.
Faced with such risk, many businesses have opted instead to settle. Typically, such payouts have totaled from the hundreds of thousands of dollars to about $25 million.
Jonathan Bilyk contributed to this report.