A federal judge has refused to dismiss a class action complaint accusing plasma collection fiirms of violating a state biometrics privacy law.
In June 2020, attorneys with Naperville’s Fish Law Firm filed the lawsuit in Cook County Circuit Court against Biomat USA and Talecris Plasma Resources. An amended complaint included Interstate Blood Bank as a defendant; all three entities operate under the same parent company, Grifols, based in Barcelona, Spain. The action alleges the blood plasma centers in Chicago, the suburbs and downstate violated the Illinois Biometric Information Privacy Act in the use of fingerprint scanning technology to identify and track donors and donations.
The complaint is similar to BIPA actions brought against other plasma collecting firms like Biolife and Octapharma, both of which recently ended litigation through multimillion dollar settlements. But the Grifols companies, after removing the complaint to federal court, asked U.S. District Judge Marvin Aspen to dismiss the complaint, a motion he denied in an opinion filed Sept. 19.
Aspen’s motion explains the procedural history, including a stay he issued pending resolution of an Illinois First District Appellate Court panel’s consideration of Tims v. Black Horse Carriers, which was to determine if statutory limitations on relevant BIPA claims should be one or five years. In September 2021, the panel said the five-year limit applies, a decision currently on appeal with the Illinois Supreme Court.
After lifting the stay, Aspen dismissed the first amended complaint for improper group pleading. The second amended complaint added plaintiffs, proposed classes of more than 100 members against each Grifols entity and suggested more than $5 million is at stake in terms of liquidated damages.
Aspen then determined the plaintiffs do have standing to sue because they alleged the plasma collectors failed to comply with BIPA’s guidelines on data retention schedules and didn’t properly destroy their biometric data.
In arguing for dismissal, the collectors said they complied with U.S. Food and Drug Administration regulations for donor identification, which obligated them to keep records for a decade. BIPA, however, requires destruction within three years. But Aspen agreed with the plaintiffs, who said the FDA allows but doesn’t require biometric data for donor identity verification, which means the centers “can comply with both federal and Illinois law by obtaining proof of identity and establishing a donor identification system using photographic identification, a valid driver’s license or any other non-biometric means.”
The ruling, however, does not address other cases in which plaintiffs have argued that photos of people's faces, including driver's license photos, also can qualify as biometric identifiers subject to protection under BIPA.
Biomat and Talecris also said some of the plaintiffs signed written waivers before presenting their fingerprints, but Aspen noted those consent agreements don’t provide the information BIPA requires to establish informed consent to collect personal information. He also rejected the argument a plasma collector qualifies as a health care provider to establish a BIPA exemption and that the prints were stored for health care treatment or used to validate scientific testing.
“Nothing that we can infer from the Second Amended Complaint makes plasma sellers ‘patients’ or plasma centers ‘health care settings,’ ” Aspen wrote. “Plasma donors are not ‘under medical care or treatment’ by virtue of selling a component of their blood. Plaintiffs nowhere allege that they had conditions that required removing the plasma from their blood as a course of medical care or treatment.”
Aspen further refused to either guess the Supreme Court would overturn the appellate ruling on Tims or, in the alternative, stay the complaint pending that decision. One reason, he said, is because at the time of the first stay there was only one named plaintiff, and a different statutory limitation ruling might’ve ended the entire complaint.
“That is no longer true, meaning two of the three putative classes and two of the four individual plaintiffs must proceed regardless of the outcome in the Illinois Supreme Court,” Aspen wrote. “Thus, even if the Illinois Supreme Court reverses, the issues will be nearly as complex and burdensome as they are now.”
Although Aspen denied the motion to dismiss, he granted their motion for leave to file supplemental authority — specifically citing a Sept. 8 opinion from U.S. District Judge Harry Leinenweber in Svoboda v. Frames for America — gave them until Oct. 3 to answer the second amended complaint and set a status hearing for Oct. 27.
Biomat has been represented in the case by attorneys Jason A. Selvey and Julia S. Wolf, of the firm of Jackson Lewis P.C., of Chicago.
Plaintiffs continue to be represented by attorneys David A. Fish and Mara Baltabols, of the firm now known as Fish Potter Bolaños, of Naperville.