A Cook County judge has cleared the way for thousands of BioLife plasma donors to get their share of a $6 million settlement resolving their litigation over fingerprint scans and alleged violations of a state biometrics privacy law.
David Fish and Mara Baltabos, of the Naperville firm of Fish Potter Bolaños, representing the class, alleged 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.
Cook County Judge Thaddeus Wilson on June 6 entered a final approval order concerning the settlement, under which the attorneys will collect almost $2.1 million in fees and $7,200 in litigation costs, about 35% of the total pool. Class representatives James Phillips and Joseph Vierra will get $7,500 each as service awards, while settlement administrator Analytics Counseling will get about $142,000.
The settlement class includes two subclasses, which will split the remaining $3.75 million. The first covers donors who provided a fingerprint scan from Sept. 8, 2015, through March 5, 2020; the second covers donors who presented only from March 6, 2020, through Nov. 15, 2021. Wilson granted final approval of 26,643 claim forms. Only five class members asked to be excluded, while no one objected.
Although that averages about $140 per claimant, the individual payouts are prorated based on subclass. The delineation between the two reflects when BioLife updated its consent forms. About 89% of the settlement will be prorated to those who gave plasma before March 2020, with 11% left for subclass two. 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.
Ultimately, subclass one claimants will get about $324 each and subclass two members will get $25. Money from any settlement checks uncashed within 150 days is targeted for the Northern Illinois Food Bank.
The deal ended a lawsuit brought by Phillips and Vierra in September 2020.
“The response from class members has been very positive and many have contacted class counsel looking forward to when their checks will arrive,” Fish Potter Bolaños wrote in its memorandum in support of final approval. “This complete lack of opposition is no surprise, considering the amount of monetary relief provided under the settlement and how favorably it compares against other settlements of similar structure and size.”
BioLife Plasma, a division of Takeda Pharmaceutical Company, has locations in 35 states including Illinois 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. During litigation, class representatives identified up to 57,525 plasma donors who might be eligible to join the class
Class counsel 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.
“Neither this final order and judgment, nor the settlement agreement, nor the payment of any consideration in connection with the settlement shall be construed or used as an admission or concession by or against (BioLife) or any of the releasees of any fault, omission, liability or wrongdoing or of the validity of any of the released claims," Judge Wilson wrote in his final approval order.