IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

BRIAN VAUGHAN, JASON DARNELL, 

FEBBIE MINNIEFIELD, and ADRIEL VEGA, 

individually and on behalf of others similarly 

situated,  

  

Plaintiffs,  

  

v.  

  

BIOMAT USA, INC., TALECRIS PLASMA 

RESOURCES, INC., and INTERSTATE BLOOD 

BANK, INC., 

  

Defendants.

   

  

  

 Case No. 20-cv-04241 

 

 Honorable Marvin Aspen 

 

 Magistrate Judge Cole 

PLAINTIFFS’ UNOPPOSED MOTION FOR AND MEMORANDUM IN SUPPORT OF 

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 

David Fish 

FISH POTTER BOLAÑOS, P.C. 

111 East Wacker Drive, Suite 2300 

Chicago IL 60601 

Mara Baltabols 

FISH POTTER BOLAÑOS, P.C. 

200 E. 5th Ave., Suite 115 

Naperville, IL 60563 

Attorneys for Plaintiffs and 

 Others Similarly Situated

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I. Introduction 

Plaintiffs brought this putative class action against Biomat USA, Inc., Talecris Plasma 

Resources, Inc. and Interstate Blood Bank, Inc. (collectively, “Defendants”) under the Biometric 

Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. In their Second Amended Complaint, 

Plaintiffs alleged that Defendants violated the BIPA by collecting their and other Illinois blood 

plasma donors’ fingerprints through its finger-scanning donor identification system without 

providing them with the requisite disclosures or obtaining informed written consent. 

Defendants have agreed to pay $16,750,000 into a non-reversionary Settlement Fund to be 

distributed to the 66,822 Settlement Class of Illinois blood plasma donors. This is a very favorable 

result for the Plaintiffs. Settlement Class Participants will receive, after payment of all proposed 

expenses and attorney’s fees, between $550 per person (assuming a ~ 30% claims rate) and $1,100 

(assuming a ~ 15% claims rate). 

By this Motion, the Parties request permission to send notice to putative Class Members to 

notify them of the Settlement and see if anyone objects or wishes to exclude themselves from 

participating in the Settlement. The Parties also request that the Court set a Final Approval Hearing 

to rule on any objections to the Settlement and to determine whether it should be finally approved. 

Plaintiffs respectfully request that the Court grant this motion for preliminary approval, certify the 

proposed Settlement Class, appoint Plaintiffs’ attorneys as Class Counsel, direct that the proposed 

Notice be disseminated to the Settlement Class, and set a Final Approval Hearing. 

II. Plaintiffs’ Allegations and Defendants’ Defenses 

As alleged in the Second Amended Complaint, Plaintiffs donated plasma at one of 

Defendants’ Illinois-based plasma donation centers. They were required to scan at least one 

fingerprint to donate plasma to track their identity. Plaintiffs allege that Defendants failed to comply 

with the BIPA’s requirements when they collected their fingerprint data. Specifically, they allege 

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that Defendants violated the BIPA by (i) failing to develop a publicly data-retention policy and 

guidelines for permanently destroying biometric data, and (b) collecting, using, and storing their 

donors’ biometric data without obtaining informed written consent. Defendants, for their part, deny 

Plaintiffs’ allegations, that they have violated the BIPA, they are subject to the BIPA, or that any 

biometric data of donors were disclosed to any unauthorized third parties. 

III. Risks of Litigation 

Significantly, here, Defendants had many defenses available: 

First, Class Members signed a form stating: “I understand and agree that I will provide my 

fingerprint as biometric authentication of my identity as part of the automated screening process”. 

While Plaintiffs argued this disclosure was not BIPA compliant, it represented a risk and one that 

Defendant argued meant the claims were entirely barred. 

Second, this settlement was negotiated shortly before the Illinois Supreme Court definitely 

held that a 5 year statute of limitations (as opposed to a 1 year) applies. Tims v. Black Horse 

Carriers, Inc., 2023 IL 127801 (February 23, 2023). Had the Court ruled that a one-year statute of 

limitations applied, most Settlement Class Members would have been barred from any recovery. 

Third, while the Plaintiffs achieved what they perceived as a favorable ruling on the motion 

to dismiss, had Defendants ultimately prevailed on any of their defenses (or defeated class 

certification), the Settlement Class Members could lose their case and collect nothing. For instance, 

no appellate court has ruled on the unique plasma-center defenses (such as, for example, federal 

preemption and whether they were collecting for healthcare purposes). 

Fourth, last month, the Illinois Supreme Court agreed to hear Mosby v. Ingalls Memorial 

Hospital, et al. At issue in Mosby is the scope of the so-called HIPPA and healthcare exemptions 

in BIPA that the Defendants here relied upon to seek dismissal. [ECF #54] Plaintiffs provided the 

Appellate Court’s Mosby decision as Supplemental Authority in the briefing on the Motion to 

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Dismiss [ECF #64] and this Court cited it in denying the Motion to Dismiss. [ECF #88] An adverse 

decision by the Supreme Court could impact the outcome of this case. 

While Plaintiffs felt confident in their responses to these and the other arguments Defendants 

would inevitably make, with the lack of precedential authority, the outcome was less than certain. 

IV. Procedural History 

(Ex. 1, Settlement Agreement, Recitals) 

On June 10, 2020, Plaintiff Vaughan filed a putative class action complaint in the Circuit 

Court of Cook County alleging violations of the BIPA. On July 17, 2020, Defendants Biomat and 

TPR removed the case to the Northern District of Illinois, pursuant to the Class Action Fairness Act 

(“CAFA”). On October 23, 2020, on Defendants Biomat and TPR’s motion, the Court stayed all 

proceedings pending the Appellate Court of Illinois’ decision in Tims v. Black Horse Carriers, Inc., 

Case No. 1-20-0563 (1st Dist.). (See dkt. 26.) After the stay was lifted, on December 17, 2021, 

Defendants moved to dismiss the Amended Complaint. (See dkt. 53-54.) The Court granted 

Defendants’ Motion on April 28, 2022, and granted Plaintiffs leave to amend. (See dkt. 69-70.) They 

then filed the operative Second Amended Complaint on May 16, 2022. (See dkt. 72.) Defendants 

moved to dismiss on July 8, 2022. (See dkt. 79-80.) On September 19, 2022, the Court entered a 

Memorandum Opinion denying the Defendants’ Motion to Dismiss. (See dkt. 88.) Thereafter the 

Parties engaged in discovery. Defendants denied and continue to deny all liability. 

V. Summary of Settlement Terms 

A. The Proposed Settlement Class 

(Ex. 1, Settlement Agreement, § 1.26)

The Plaintiffs seek preliminary approval of the following Settlement Class: 

All individuals who had their Biometric Identifiers and/or Biometric Information collected, 

captured, stored, possessed, received, transmitted, converted or otherwise obtained by either 

(i) Biomat USA, Inc. or Talecris Plasma Resources, Inc. at one of their plasma donation 

centers in Illinois as part of their plasma donation processes between June 10, 2015 and June 

10, 2022, or (ii) Interstate Blood Bank, Inc. at its plasma donation center in Illinois as part 

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of their plasma donation process between April 8, 2016 and July 25, 2022; and whose name 

appears on the Class List ("Settlement Class") 

B. Settlement Fund; Allocation of the Fund; Payments to Class Members; NonMonetary Relief 

(Ex. 1, Settlement Agreement, § 1.28)

While denying all liability and wrongdoing Defendants will pay a gross Settlement Fund of 

$16,750,000 to resolve the claims in this case on a class action basis. The “Gross Fund” is the 

maximum amount that Defendants shall pay under this Settlement, unless the number of the 

Settlement Class Members increases by more than 500 people. 

The “Net Fund” is the gross Settlement Fund minus the following deductions, which are 

subject to Court approval: Settlement Class Counsel’s attorney fees and costs; the Settlement 

Administrator’s Expenses; the Plaintiffs’ Incentive Awards and any other payments made associated 

with the settlement. Payments will be made from the Net Fund pro rata for each Class Member that 

timely returns a valid claim (“Class Participants”). This Settlement has a claims-made structure with 

no reversion, so the full Settlement Fund will be distributed to Class Members who submit valid 

and timely claims forms; no money will be returned to the Defendants. 

 The number of claims submitted will affect the per-person payment, with a lower claims 

rate resulting in a higher per-person payment. Settlement Class Counsel estimate that Settlement 

Class Participants will receive, after payment of all proposed expenses and attorneys’ fees, between 

$550 per person (assuming a 30% claims rate) and $1,100 (assuming a 15% claims rate).1 

C. Uncashed Checks Will Be Distributed to a Cy Pres Recipient 

(Ex. 1, Agreement, § 2.1(h))

1

 Although hard to predict, Plaintiffs anticipate a claims rate of between 15% and 30% based upon 

experience in settling similar BIPA cases against other plasma donation centers. The median claims rate in 

class settlements is approximately 9%. See Federal Trade Commission, Consumers and Class Actions: A 

Retrospective and Analysis of Settlement Campaigns, p. 11 (Sept. 2019), available at https://www.ftc.gov/

system/files/documents/reports/consumers-class-actions-retrospective-analysis-settlement-campaigns/

class_action_fairness_report_0.pdf (median claims rate for settlements studied was 9%). 

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Settlement Class Participants will have 150 days to cash their settlement payments. Funds 

from checks not cashed by the deadline will be distributed to the Northern Illinois Food Bank as the 

cy pres recipient. However, Plaintiffs expect few uncashed checks because Settlement Class 

Participants must first submit a claim form to receive payment and can elect to receive electronic 

payment, which obviates the need to cash a check. 

D. Defendant’s Representations of Compliance with the BIPA 

(Ex. 1, Settlement Agreement, § 2.2)

As part of the Settlement, Defendants represent that they now comply are in compliance with 

the BIPA on a going forward basis to the extent they utilize finger scanning. After Plaintiffs filed 

this lawsuit, the Defendants added a “Donor Biometric Data Privacy Policy” that is available online. 

https://www.grifolsplasma.com/en/privacy-policy 

E. Release of Claims 

(Ex. 1, Settlement Agreement, §§ 1.20, 1.21, 3.1)

Settlement Class Members who do not exclude themselves will release the Released Parties 

from claims relating in any way to or connected with the alleged capture, collection, storage, 

possession, transmission, conversion, purchase, receipt through trade, obtaining, sale, lease, 

profiting from, disclosure, redisclosure, dissemination, transmittal, conversion and/or other use of 

biometric identifiers and/or biometric information as detailed in the Settlement Agreement. 

F. Notice of Class Action Settlement and Claim Form 

(Ex. 1, Settlement Agreement, §§ 1.5, 1.16, 4.1 and Ex. A) 

Among other things, Plaintiffs’ proposed Notice of Class Action Settlement (“Notice”) 

explains the following to Settlement Class Members: (1) what the Settlement is about; (2) how to 

request payment, exclusion, or submit an objection; (3) how to obtain more information about the 

Settlement; (4) the monetary terms of the Settlement and how individual payments will be 

calculated; (5) the maximum amounts to be requested for attorney fees, costs, settlement 

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administration, and Incentive Awards; and (6) the Final Approval Hearing details. The Parties have 

selected Analytics Consulting, LLC to act as the Settlement Administrator. The Claim Form will be 

provided with the Notice. The proposed Claim Form is simple and easy to complete. The Claim 

Form explains how individuals can also return a Claim Form through the Settlement website. 

The Settlement website, anticipated to be www.bipaplasma.com, will also have the Notice 

and Claim Forms, the Settlement Agreement, the Preliminary Approval Order, the Motion for 

Attorney Fees, Costs, and Settlement Class Representatives’ Incentive Awards (once available), the 

Motion for Final Approval (once available), and the Final Approval Order (once available). 

G. Distribution of Notice 

(Ex. 1, Settlement Agreement, § 4.1)

The Settlement Administrator will implement a robust class notice program to ensure that 

Settlement Class Members learn of their rights in the Settlement. As explained below, the notice 

program will include a Settlement website and two methods of notice distribution. 

First, the Settlement Administrator will provide the Notice and Claim Forms by direct mail 

to all Class Members, to the extent mailing addresses are available. Before mailing, the Settlement 

Administrator will update Class Members’ addresses by running their names and addresses through 

the National Change of Address database. The mailing shall include a pre-paid envelope for Class 

Members to return a Claim Form. For Class Members whose Notices are returned as undeliverable 

without a forwarding address, the Settlement Administrator shall promptly run a database search to 

locate an updated address and shall mail the Notice and Claim Form to the updated address. Second, 

where phone numbers are available for Class Members, the Settlement Administrator shall also send 

Notice via text message. 

H. Incentive Awards 

(Ex. 1, Settlement Agreement, § 8.2)

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Under the Settlement Agreement, Class Counsel may request that the Court award the Class 

Representatives up to $5,000 each as an Incentive Award for their work in prosecuting this lawsuit 

on behalf of the Settlement Class and recovering money for the Settlement Class. 

I. Attorney Fees and Costs 

(Ex. 1, Settlement Agreement, § 8.1)

Under the Settlement Agreement, Class Counsel may request that the Court award one-third 

of the Gross Fund as attorney fees plus their litigation expenses. The Notice will advise Settlement 

Class Members about the attorney fee request and how to object to it. 

VI. The Court Should Grant Preliminary Approval 

A. Settlement of Class Action Litigation is Favored 

Federal courts favor and encourage settlements, particularly in class actions and other 

complex matters, where the inherent costs, delays, and risks of continued litigation might otherwise 

overwhelm any potential benefit the class could hope to obtain. See Class Plaintiffs v. City of Seattle, 

955 F.2d 1268, 1276 (9th Cir. 1992); see also 2 Herbert B. Newberg & Alba Conte, Newberg on 

Class Actions § 11.41 (3d ed. 1992) (collecting cases). The Manual for Complex Litigation

describes a three-step procedure for approval of class action settlements: 

(1) Preliminary approval of the proposed settlement at an informal hearing; 

(2) Dissemination of mailed and/or published notice of the settlement to all affected class 

members; and 

(3) A “formal fairness hearing” or final settlement approval hearing, at which class 

members may be heard regarding the settlement, and at which evidence and argument 

concerning the fairness, adequacy, and reasonableness of the settlement may be 

presented. 

Manual for Complex Lit., at § 21.632–34. This procedure, used by courts in this Circuit and endorsed 

by the leading class action treatise, safeguards the due process rights of absent class members and 

enables the Court to fulfill its role as the guardian of class interests. See 2 Newberg & Conte, at § 

11.22, et seq. With this motion, Plaintiffs request that the Court take the first step in the process by 

granting preliminary approval of the proposed Settlement. 

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Rule 23 was amended effective December 1, 2018. Before then, Rule 23 did not address 

standards for preliminary approval. In re Payment Card Interchange Fee & Merch. Disc. Antitrust 

Litig., 330 F.R.D. 11, 28 (E.D.N.Y. 2019). At the preliminary approval stage, district courts 

decided whether the proposed settlement fell “within the range of possible approval.” Kou Thao 

Vang v. KeyTronicEMS, 2019 WL 337589, at *1 (D. Minn. Jan. 28, 2019); “Under the new Rule 

23(e), in weighing a grant of preliminary approval, district courts must determine whether ‘giving 

notice is justified by the parties’ showing that the court will likely be able to: (i) approve the 

proposal under Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the 

proposal.” In re Payment Card., 330 F.R.D. at 28 (citing Fed. R. Civ. P. 23(e)(1)(B)(i–ii)) 

(emphasis in original). As shown below, the Settlement satisfies these criteria and preliminary 

approval is justified.

By way of comparison, settlements in other statutory privacy class actions frequently don’t 

come near this amount, either in terms of raw numbers or percentage of available relief. See e.g., 

In re Google LLC Street View Elec. Commc’ns Litig., 2020 WL 1288377, at *11–14 (approving, 

over objections of class members and state attorney general, a settlement providing only cy pres

relief for violations of a federal privacy statute, where $10,000 in statutory damages were available 

per claim); Marshall v. Lifetime Fitness, Inc., 2017 CH 14262 (Cir. Ct. Cook Cnty.) (paying a cap 

of $270 to individuals who filed claims and reverting the remainder to defendant); Adkins v. 

Facebook, Inc., 18-cv-05982-WHA, dkts. 350, 369 (N.D. Cal. May 6, 2021 and July 13, 2021) 

(approving settlement for injunctive relief only, in class action arising out of Facebook data breach, 

and granting $6.5 million in attorneys’ fees and costs); Carroll v. Crème de la Crème, Inc., 2017 

CH 01624 (Cir. Ct. Cook Cnty. June 25, 2018) (BIPA settlement providing only credit monitoring); 

Rosenbach v. Six Flags Ent. Corp., 2016 CH 00013 (Cir. Ct. Lake Cnty. May 14, 2021) 

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(preliminarily approving $36 million fund for approximately 1,110,000 class members, and capping 

class member payments at $200 or $60 depending on date of finger scan).

Even narrowing the comparison to the better BIPA settlements that create non-reversionary 

funds, this Settlement is favorable. Indeed, the per-person monetary relief achieved here is among 

the best in a BIPA case of this size—i.e., those with at least tens of thousands of class members. See

Prelipceanu v. Jumio Corp., 2018 CH 15883 (Cir. Ct. Cook Cnty. July 21, 2020) ($7 million fund 

for approximately 260,000 class members); Miracle-Pond v. Shutterfly, 2019 CH 07050 (Cir. Ct. 

Cook Cnty. Sept. 9, 2021) ($6.75 million fund for potentially millions of class members); Thome v. 

NOVAtime Tech., Inc., No. 19-cv-6256, dkt. 90 (N.D. Ill. Mar. 8, 2021) ($4.1 million fund for 62,000 

class members, and assignment of insurance policy); Figueroa v. Kronos, 2019-CV-01306 (N.D. 

Ill. Feb. 10, 2020) ($15.2 million for 171,643 class members). 

B. The Court Will Likely Be Able to Approve the Settlement Under Rule 23(e)(2) 

1. The Class Representatives and Class Counsel have Adequately 

Represented the Proposed Settlement Class – Rule 23(e)(2)(A) 

Settlement Class Counsel and the Settlement Class Representatives pursued this case 

vigorously on behalf of the potential class. Class Counsel briefed and defeated Defendants’ motions 

to dismiss, served written discovery requests, obtained relevant documents and served third-party 

discovery. 

2. The Settlement Was Negotiated at Arm’s Length – Rule 23(e)(2)(B) 

The Settlement was the result of extensive arm’s-length negotiation between counsel during 

a months-long process. 

3. The Settlement Provides Adequate Relief to the Class – Rule 23(e)(2)(C) 

The Class Representatives claim that they and potential Class Members are entitled to $1,000 

per violation if they are able to prove Defendants’ alleged violations of the BIPA were “negligent.” 

740 ILCS 14/20(1). The $16,750,000.00 Gross Fund represents a gross recovery of more than $250 

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per Settlement Class Member. Depending on the claims rate, Settlement Class Counsel estimates 

the net recovery for each Class Participant will be between $550 and $1,100. The Settlement 

represents a meaningful recovery when compared against average recoveries in class action 

settlements. See In re Ravisent Techs., Inc. Sec. Litig., 2005 WL 906361, at *9 (E.D. Pa. Apr. 18, 

2005) (citing a study by Columbia University Law School, which determined that “since 1995, class 

action settlements have typically recovered between 5.5% and 6.2% of the class members’ estimated 

losses.”) (internal citations omitted). The Court should further evaluate the adequacy of relief based 

on the sub-factors below, Fed. R. Civ. P. 23(e)(2)(C)(i)-(iv), each of which the Settlement satisfies. 

a. Costs, risks, and delay of trial and appeal. 

If the litigation had continued, it would have been complex, expensive, and protracted. If the 

case had not settled, the Parties would have completed depositions and likely diligently pursued 

third-party discovery. After that, Plaintiffs would have served an expert witness report about how 

Defendant’s system collected biometric identifiers and/or biometric information covered by BIPA. 

This likely would have resulted in Defendant hiring its own expert witness. Following that additional 

discovery, Plaintiffs would have filed a motion for class certification. After extensive litigation, 

Defendant could have obtained a victory or greatly reduced the potential class recovery based on its 

defenses in the lawsuit, including: 

(1) That the BIPA excludes fingerprint information collected in a plasma-donation facility 

under the healthcare setting exemption; 

(2) that Defendant’s biometric device did not collect biometric identifiers or biometric 

information as defined by the BIPA; 

(3) that Defendant’s alleged violations of the BIPA were not negligent or reckless; and 

(4) that any award of liquidated damages per class member would excessive in light of the 

alleged absence of injury and thus the damages would violate Defendant’s due process 

rights under the Illinois and/or United States Constitutions. 

Instead of expensive, complicated, and protracted litigation, this Settlement provides significant 

monetary relief to Class Members now. 

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b. Effectiveness of the proposed method of distributing relief to Class 

Members. 

The next sub-factor evaluates whether the settlement’s proposed method of distributing 

relief to the class is effective. Fed. R. Civ. P. 23(e)(2)(C)(ii). An effective distribution method “get[s] 

as much of the available damages remedy to class members as possible and in as simple and 

expedient a manner as possible” while also ensuring that only “legitimate claims” are paid. 4 

NEWBERG ON CLASS ACTIONS § 13:53 (5th ed.). Courts have held that requiring a claimant to 

fill out a short and simple claim form is an appropriate way to balance these concerns, especially in 

settlements with non-reversionary funds. See In re Toyota Motor Corp. Unintended Acceleration 

Mktg. Litig., 2013 WL 3224585, at *18 (C.D. Cal. June 17, 2013) (“The requirement that class 

members download a claim form or request in writing a claim form, complete the form, and mail it 

back to the settlement administrator is not onerous.”). The proposed Settlement here satisfies this 

factor by relying on well-established, effective methods for processing Class Members’ Claim 

Forms and distributing the proceeds of the Settlement. The Settlement Fund will be distributed to 

Class Members who submit a short and simple Approved Claim Form, by mail or online, to the 

Settlement Administrator—an independent third party with extensive experience handling the 

administration of settlement funds. Each person in the Settlement Class will be sent a paper Claim 

Form in the mail, attached to the direct notice, and will have the option to alternatively file their 

claim online through the Settlement Website. The Settlement Administrator will provide Class 

Members with resources (including a website, mailing address, and toll-free phone number) to 

contact the Settlement Administrator or Class Counsel directly, review and process the Claim 

Forms, and then disperse to Class Members their pro rata share of the Settlement Fund upon 

approval of the Court. This distribution method is effective and supports approval.

c. The terms of the proposed attorney fee award, including timing of 

payment 

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Class Counsel will seek an award of attorney fees of one-third of the Gross Fund plus 

litigation costs. (Ex. 1, § 8.1.) The Settlement provides for payment of any attorney fees awarded at 

the same time as payments to Class Members; there is no priority for Class Counsel. Id.

d. Any Agreement required to be identified under Rule 23(e)(3)d 

The Settlement Agreement is Exhibit 1 to this Motion. There are no side agreements 

regarding the Settlement Class or attorney fees related to this Settlement. 

4. The Settlement Treats Settlement Class Members Equitably Relative to 

Each Other – Rule 23(e)(2)(D) 

The Settlement treats Class Members equally by distributing awards to Class Participants 

from the Net Fund on a pro rata basis. Ex. 1, § 1.27. 

C. The Court Will Likely Be Able to Certify the Settlement Class for Purposes of 

Judgment on the Settlement – Rule 23(e)(1)(B)(ii) 

1. Certification Will Be Appropriate Under Rule 23(a) 

To obtain class certification, Plaintiffs must demonstrate that their claims meet the four 

requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). As shown below, all 

of the elements of Rule 23(a) and (b)(3) are met here. 

i. Numerosity 

Courts consistently hold that if there are more than 40 class members, numerosity is satisfied. 

See, e.g., Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D. Ill. 1996). The estimated class size 

here is 66,822 which satisfies numerosity. 

ii. Commonality 

For a class to be certified, questions of law or fact must exist common to the class. Fed. R. 

Civ. P. 23(a)(2). Those common issues must be susceptible to common answers. In Wal-Mart 

Stores, Inc. v. Dukes, the Supreme Court summarized the Rule 23(a)(2) requirement as follows: 

What matters to class certification . . . is not the raising of common ‘questions’ — even in 

droves — but, rather the capacity of a classwide proceeding to generate common answers

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apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what 

have the potential to impede the generation of common answers. 

564 U.S. 338, 350 (2011). The claims of Class Members can be resolved in a “single stroke” by 

answering the following common question: did Defendant collect biometric data of Class Members 

without following BIPA’s notice and consent requirements? Answering this common question 

resolves the question of liability for all Class Members. Commonality will be met here. 

iii. Typicality 

A claim is typical if it “arises from the same event or practice or course of conduct that gives 

rise to the claims of other class members and ... [the] claims are based on the same legal theory.” 

Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (citation omitted). The requirement is 

meant to ensure that the named representative’s claims “have the same essential characteristics as 

the claims of the class at large.” Id. (quotations and citation omitted)). 

The claims of the Class Representatives and Class Members arise from the same conduct: 

Defendants’ use of a finger scan system for its Illinois plasma donors allegedly without following 

the BIPA’s notice and consent requirements. Typicality will be met. 

iv. Adequacy of the Class Representatives 

The adequacy of representation component has three elements: (1) the claims of the class 

representative cannot conflict with the claims of the other class members; (2) the class 

representative’s interest in the litigation outcome must be sufficiently strong to ensure that she is a 

vigorous advocate for the class; and, (3) counsel for the class representative must be competent, 

experienced, and able to conduct the litigation with that necessary vigor. Gammon v. G.C. Servs., 

L.P., 162 F.R.D. 313, 317 (N.D. Ill. 1995). 

v. The Class Representatives have an interest in the litigation 

and have no conflict with Class Members 

The Class Representatives allege the same claims as Settlement Class Members and have no 

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interests antagonistic to them. Thus, the Class Representatives have “a clear stake in a successful 

outcome – [] damages for [themselves] and the class – that raises no specter of antagonistic 

interests.” Pierre v. Midland Credit Mgmt., Inc., 2017 WL 1427070, at *8-9 (N.D. Ill. Apr. 21, 

2017). The Settlement Class Representatives exhibited competence throughout the case, including 

by answering written discovery in support of the class claims in the case. 

 vii. Class Counsel is experienced and qualified 

 Class Counsel will also fairly and adequately protect the interests of the Class Members. A 

court considers the following four factors when appointing class counsel: (1) the work counsel has 

performed in identifying the potential class claims; (2) Class Counsel’s experience in handling 

complex litigation and class actions; (3) counsel’s knowledge of the applicable law; and (4) the 

resources that class counsel will commit to representing the class. Fed. R. Civ. P. 23(g). 

Class Counsel are highly experienced class action attorneys and have been appointed class 

counsel in numerous actions in federal and state courts, including numerous other BIPA class 

actions. Exhibit 2, Fish Declaration and accompanying Firm Resume. By their actions in this case 

and relevant experience, Class Counsel are well-positioned to protect the interests of Class 

Members. 

e. Certification Will Be Appropriate Under Rule 23(b) 

Class certification is appropriate under Rule 23(b)(3) if “questions of law or fact common to 

the members of the class predominate over any questions affecting only individual members, and . 

. . a class action is superior to other available methods for the fair and efficient adjudication of the 

controversy.” Fed. R. Civ. P. 23(b)(3). These prerequisites are satisfied. 

f. Common questions predominate 

The Rule 23(b) predominance requirement looks to whether the proposed class is sufficiently 

cohesive to warrant adjudication by representation. Amchem Prods. v. Windsor, 521 U.S. 591, 623 

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(1997). “Thus, the Plaintiffs bear the burden of demonstrating ‘that the elements of liability are 

capable of proof at trial through evidence that is common to the class rather than individual to the 

members.’” Kernats, et al. v. Comcast Corp., Case Nos. 09 C 3368 and 09 C 4305, 2010 WL 

4193219, at *7 (N.D. Ill. Oct. 20, 2010). The common question predominating in this case is whether 

Defendant collected Settlement Class Members’ biometric data without following the requirements 

of the BIPA. The answer to this question determines Defendant’s liability under the BIPA for all 

potential persons in the Settlement Class and therefore predominates over any individual questions. 

g. A class action is a superior mechanism 

The superiority inquiry requires a court to compare alternatives to class treatment and 

determine if any alternative is superior. “Where classwide litigation of common issues will reduce 

litigation costs and promote greater efficiency, a class action may be superior to other methods of 

litigation.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982). This is particularly true in 

actions like this one, where numerous individual claimants each suffer a relatively small harm. “Rule 

23(b)(3) was designed for situations . . . in which the potential recovery is too slight to support 

individual suits, but injury is substantial in the aggregate.” Murray v. GMAC Mortg. Corp., 434 F.3d 

948, 953 (7th Cir. 2006). Here, the alternative to class resolution is thousands of individual lawsuits 

for small recoveries, plus attorneys’ fees and costs. 

D. Plaintiffs’ Notice Program and Class Notice Form Merit Approval (Ex. 1, 

Settlement Agreement, § 4 and Attach. A) 

The proposed Notice complies with due process and the Federal Rule of Civil 

Procedure 23. Pursuant to Rule 23(c)(2)(B): 

 The notice must clearly and concisely state in plain, easily understood language: (i) the nature 

of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; 

(iv) that a class member may enter an appearance through an attorney if the member so 

desires; (v) that the court will exclude from the class any member who requests exclusion; 

(vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class 

judgment on members under Rule 23(c)(3). 

Case: 1:20-cv-04241 Document #: 100 Filed: 02/09/23 Page 16 of 17 PageID #:1381
16 

The proposed Notice exceeds this bare minimum and complies with the requirements of Rule 

23(c)(2)(B). 

VII. Conclusion 

Because the Settlement makes significant monetary relief available to Settlement Class 

Members who might have recovered nothing without the Settlement, the Court should grant 

preliminary approval. The Parties will submit a proposed Preliminary Approval Order. 

Dated: February 9, 2023 Respectfully submitted, 

BRIAN R. VAUGHAN, JASON DARNELL, 

FEBBIE MINNIEFIELD, and ADRIEL 

VEGA, individually and on behalf of all others 

similarly situated, 

 By: /s/ David Fish 

One of Plaintiffs’ attorneys 

 David Fish 

Mara Baltabols 

FISH POTTER BOLAÑOS, P.C. 

200 E. 5th Ave., Suite 115 

Naperville, IL 60563 

312-861-1800 

dfish@fishlawfirm.com 

mara@fishlawfirm.com 

www.fishlawfirm.com 

 

CERTIFICATE OF SERVICE 

I, David Fish, an attorney, hereby certify that the foregoing was served on all counsel of 

record through service generated by the Court’s e-filing system and via electronic mail on February 

9, 2023. 

 /s/ David Fish

Case: 1:20-cv-04241 Document #: 100 Filed: 02/09/23 Page 17 of 17 PageID #:1382