IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF ILLINOIS 

BRIAN R. VAUGHAN and JASON 

DARNELL, individually and on behalf of all 

others similarly situated,

 Plaintiffs, 

 v. 

BIOMAT USA, INC., TALECRIS PLASMA 

RESOURCES, INC., and INTERSTATE 

BLOOD BANK, INC.,

 Defendants. 

 

Case No.: 20-cv-04241 

Hon. Marvin E. Aspen

Mag. Judge Jeffrey Cole

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ 

MOTION TO DISMISS THE AMENDED COMPLAINT 

 

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Table of Contents 

Page 

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................1

I. PLAINTIFFS’ CLAIMS ARE NOT PREEMPTED BY FEDERAL LAW ..................1

II. PLAINTIFF VAUGHAN STATES A CLAIM UNDER SECTION 15(b)...................6

III. BIOMETRIC INFORMATION USED TO IDENTIFY A PLASMA SELLER 

IS NOT EXEMPT UNDER BIPA. ..............................................................................10

A. Plasma Sellers are not “Patients” In a “Health Care Setting”. .........................10

B. The Defendants’ Reliance Upon “information collected, used or stored 

for health care treatment” Under HIPAA Is Misplaced. ..................................13

C. Finger Scans Do Not “Validate Scientific Testing or Screening” ...................17

IV. PLAINTIFFS SUFFICIENTLY PLEAD A VIOLATION BY EACH 

DEFENDANT..............................................................................................................20

V. CONCLUSION ............................................................................................................22

 

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Table of Authorities 

Page 

Cases

Aux Sable Liquid Products v. Murphy, 526 F.3d 1028 (7th Cir. 2008) .......................................... 2 

BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir. 2015) ................................................... 6, 7, 21 

Bradenberg v. Meridian Senior Living, LLC, 2021 WL 4494275 (N.D. Ill. Sept. 30, 2021) ....... 22 

Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) ................................. 7 

Bruhn v. New Albertson’s Inc., No. 18-CH-01737 (Cir. Ct. Cook Cty. July 2, 2019) ................. 15 

Christmas v. Landmark of Richton Park, 20CH5439 (Oct. 22, 2021, Cir. Ct. Cook Cty., 

Ill.) ............................................................................................................................................. 9 

Costello v. BeavEx, Inc., 810 F.3d 1045 (7th Cir. 2016) ................................................................ 1 

Cothron v. White Castle Sys., Inc., 467 F. Supp. 3d 604 (N.D. Ill. 2020) ...................................... 7 

County Of Cook v. Illinois Labor Relations Bd. Local Panel, 347 Ill. App. 3d 538, 807 

N.E.2d 613 (2004)................................................................................................................... 18 

Crumpton v. Octapharma Plasma, Inc., 513 F. Supp. 3d 1006 (N.D. Ill. 2021) .......... 3, 12, 15, 17 

Ctr. Video Indus. Co. v. Roadway Package Sys., Inc., 90 F.3d 185 (7th Cir. 1996) .................... 18 

Cunningham v. Foresters Fin. Services, Inc., 300 F. Supp. 3d 1004 (N.D. Ind. 2018) ................ 20 

Diaz v. Silver Cross Hosp. & Med. Ctrs., No. 2018 CH 001327 (Cir. Ct. Will Cnty. Aug. 

29, 2019) ................................................................................................................................. 17 

Figueroa v. Kronos Inc., 2020 WL 1848206, (N.D. Ill. Apr. 13, 2020)....................................... 22 

Fuesting v. Uline, Inc., 30 F. Supp. 3d 739 (N.D. Ill. 2014) ........................................................ 18 

Heard v. Becton, Dickinson & Co., 524 F. Supp. 3d 831 (N.D. Ill. 2021) ....................... 13, 16, 17 

In re Jaffe, 932 F.3d 602 (7th Cir. 2019) ................................................................................ 17, 19 

Kaufmann v. Schroeder, 241 Ill. 2d 194 (2011) ........................................................................... 12 

Marsh v. CSL Plasma Inc., 503 F. Supp. 3d 677 (N.D. Ill. 2020) .................................. 2, 3, 12, 22 

Mason v. SmithKline Beecham Corp., 596 F.3d 387 (7th Cir. 2010) ............................................. 2 

New Mexico Dep’t of Human Servs v Dep’t of Health & Human Servs Health Care Fin. 

Admin., 4 F.3d 882 (10th Cir. 1993) ......................................................................................... 6 

Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 (7th Cir. 2013) ........................................ 2, 3, 5 

Peaks-Smith vs. St. Anthony Hospital, 2018 CH 2077 (Cir. Ct. Cook Cty. Jan 7, 2020) ............ 15 

Rogers v. BNSF Railway Co., 2019 WL 5635180 (N.D. Ill. Oct. 31, 2019) ................................ 22 

Rogers v. CSX Intermodal Terminals, Inc., 409 F. Supp. 3d 612 (N.D. Ill. 2019) ....................... 19 

Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186, ¶ 36 ......................................... 7, 9, 19, 21 

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Slater, et al. v. H&M, et al., 2018 CH 16030 (Nov. 4, 2019, Cir. Ct. Cook Cty., Ill.) ................. 10 

Snider v. Heartland Beef, Inc., 2020 WL 4880163 (C.D. Ill. Aug. 14, 2020) .............................. 22 

Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008) ................................................................ 10 

Thomas by & through Phillips v. Illinois Dep't of Human Services, 20-CV-03498, 2021 

WL 4439417 (N.D. Ill. Sept. 28, 2021) .................................................................................. 14 

Thurman v. Northshore University Health System, 2018 CH 3544 (Cir. Ct. Cook Cty. 

Dec. 12, 2019) ......................................................................................................................... 16 

Treadwell v. Power Sols. Int’l, Inc., 427 F. Supp. 3d 984 (N.D. Ill. 2019) .................................. 19 

Vo v. VSP Retail Dev. Holding, Inc., 19 C 7187, 2020 WL 1445605 (N.D. Ill. Mar. 25, 

2020) ....................................................................................................................................... 12 

Wordlaw v. Enter. Leasing Co. of Chicago, LLC, 20 CV 3200, 2020 WL 7490414 (N.D. 

Ill. Dec. 21, 2020) ................................................................................................................... 21 

Wyeth v. Levine, 555 U.S. 555 (2009) ............................................................................................ 2 

Wypych v. Cheese Merchants of America, LLC, 20 CH 2437 (July 21, 2021, Cir. Ct. Cook 

Cty., Ill.) .................................................................................................................................. 10 

Yi v. Sterling Collision Centers, Inc., 480 F.3d 505 (7th Cir. 2007) ............................................ 19 

Statutes

740 ILCS 14/1 ................................................................................................................................. 1 

740 ILCS 14/10 ........................................................................................................... 10, 12, 14, 17 

740 ILCS 14/15(a) ...................................................................................................................... 2, 6 

740 ILCS 14/15(b) ...................................................................................................................... 6, 8 

740 ILCS 14/15(b)(3) ..................................................................................................................... 8 

740 ILCS 14/20(1)-(2) .................................................................................................................. 21 

740 ILCS 14/25(c) ........................................................................................................................ 16 

740 ILCS 14/5(a)-(c)..................................................................................................................... 19 

Other Authorities

95th Ill. Gen. Assem., House Proceedings, May 30, 2008, at 249 (statement of Rep. Ryg) ........ 19 

https://www.merriam-webster.com......................................................................................... 11, 18

Regulations

21 C.F.R. § 11.200(a)...................................................................................................................... 3 

21 C.F.R. § 606.160(b)(1) ........................................................................................................... 2, 4 

21 C.F.R. § 630.10 .......................................................................................................................... 4 

21 C.F.R. § 630.10(g)(1) ................................................................................................................. 4 

21 C.F.R. § 640.65 .......................................................................................................................... 4 

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21 C.F.R. § 640.65(b)(3) ................................................................................................................. 4 

21 C.F.R. § 640.72 .......................................................................................................................... 4 

21 C.F.R. §§ 600.12(a), (b)(1) ........................................................................................................ 5 

45 C.F.R. § 160.103 ...................................................................................................................... 13 

45 C.F.R. §103 .............................................................................................................................. 13 

65 Fed. Reg. 82,477 (Dec. 28, 2000) ............................................................................................ 14 

65 Fed. Reg.82,572 ....................................................................................................................... 15 

65 Fed.Reg. 82,572 ....................................................................................................................... 14 

65 FR 82462-01 ............................................................................................................................ 15 

80 Fed. Reg. 29,869 (May 22, 2015) .............................................................................................. 3 

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INTRODUCTION 

Plaintiffs Brian Vaughan and Jason Darnell (“Plaintiffs”) bring this action against Biomat 

USA, Inc., Talecris Plasma Resources, Inc. and Interstate Blood Bank, Inc. (“Defendants”) for 

invading their privacy by unlawfully collecting, using, storing, and disseminating their biometric 

data without their consent or providing the statutorily-mandated disclosures in violation of the 

Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. 

For years, Defendants have extracted biometric data from some of the most vulnerable 

people in our society: those people so financially insecure that they sell their plasma for money. 

Although BIPA has been on the books for over a decade, Defendants did nothing to comply with 

the simple, straightforward, and easy-to-follow requirements. Defendants had to do little more in 

exchange for collecting biometric information than have their plasma sellers fill out a fewsentences long release describing what was being done with the biometric information. 

Defendants’ Motion largely parrots the arguments brought by their plasma collection 

competitors (who were also sued for violating BIPA), arguments already rejected in well-reasoned 

opinions issued by Judge Chang and Judge Kendall. As these opinions held, there is nothing under 

federal law that preempts plasma companies from complying with this important privacy 

legislation and BIPA does not exempt them. 

ARGUMENT 

I. PLAINTIFFS’ CLAIMS ARE NOT PREEMPTED BY FEDERAL LAW 

Defendants first argue that conflict preemption bars Plaintiffs’ BIPA claims. “The 

touchstone of preemption analysis is the intent of Congress.” Costello v. BeavEx, Inc., 810 F.3d 

1045, 1050 (7th Cir. 2016). However, courts must analyze Congressional intent “through a lens 

that presumes that [] state law has not been preempted” and the party pushing preemption has the 

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burden of proof. Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1046, 1049 (7th Cir. 2013). 

See also, Wyeth v. Levine, 555 U.S. 555, 565, 572 (2009)(“we start with the assumption that the 

historic police powers of the States were not to be superseded”). Conflict preemption “applies 

when federal and state law so directly conflict that it would be ‘impossible’ for a person or 

organization simultaneously to comply with both.” Mason v. SmithKline Beecham Corp., 596 F.3d 

387, 390 (7th Cir. 2010); Marsh v. CSL Plasma Inc., 503 F. Supp. 3d 677, 685 (N.D. Ill. 2020). 

“[M]ere differences between state and federal regulation of the same subject are not conclusive of 

preemption ... the crucial inquiry is whether [state law] differs from [federal law] in such a way 

that achievement of the congressional objective ... is frustrated.” Aux Sable Liquid Products v. 

Murphy, 526 F.3d 1028, 1033 (7th Cir. 2008). BIPA is no obstacle to federal law’s objectives, far 

from the “major damage to clear and substantial federal interests” required for conflict 

preemption. Id. 

The Defendants attempt to manufacture a conflict by pointing out that a federal regulation 

requires that “individual product records” be maintained for at least 10 years (21 C.F.R. § 

606.160(b)(1)) while BIPA requires that biometric information be destroyed no later than 3 years 

after the individual’s last interaction with the private entity. 740 ILCS 14/15(a). Defendants’ 

preemption argument fails for several reasons: 

First, there is nothing in the BIPA that is “impossible” to comply with alongside federal 

law and its regulations. Of course, it is necessary to get proof of a plasma seller’s identity, but no 

federal law or regulation, let alone the FDA, requires plasma donation companies to use biometric 

identifiers to establish donor identity. The Defendants could use a driver’s license or one of the 

many other forms of photographic identification that we all regularly supply when going to the 

airport, getting our driver’s license renewed, etc. 

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What’s more, while federal regulations governing donor collection allow biometrics, they 

do no not require it. See 80 Fed. Reg. 29,869 (May 22, 2015). (“[W]e have not specified the means 

of establishing proof. We believe that photographic identification, a valid driver’s license, 

validated biometric means, or other means can be useful in establishing identity.”). More to the 

point, federal law governing plasma collection identification allows “signatures that are not based 

on biometrics.” 21 C.F.R. § 11.200(a). To this end, Defendants utilized photographic consent to 

confirm identity. See ¶ 4 of the Consent Agreement, attached as Ex. A (“I understand that before 

my first donation, my photograph was taken, with my consent, for identification purposes.”).1

 

Two decisions in the Northern District of Illinois have analyzed and rejected preemption 

of a plasma seller’s BIPA claim by federal law. See Crumpton v. Octapharma Plasma, Inc., 513 

F. Supp. 3d 1006, 1014 (N.D. Ill. 2021)(J., Kendall) and Marsh v. CSL Plasma Inc., 503 F. Supp. 

3d 677, 685 (N.D. Ill. 2020)(J. Chang). As here, in Crumpton, the plasma purchasing company 

argued that because federal law mandated keeping donor records longer than BIPA allows, conflict 

preemption applies. (See ECF #45, 19-CV-08402). Both decisions rejected conflict preemption: 

Octapharma’s decision to use biometric information, or assessment that such a 

method is superior to the alternatives, does not alter the fact that it is not required 

by federal law. ... Octapharma may satisfy both federal law and BIPA by using an 

alternate method of proving donor identity. Conflict preemption, then, does not 

apply. 

Crumpton, 513 F. Supp. 3d at 1014. 

[Federal law] does not require plasma-donation centers to collect or use biometric 

data. ... Nothing in federal law or regulation prevents CSL from obeying BIPA 

while complying with federal law. Conflict preemption, then, does not apply. 

Marsh, 503 F. Supp. 3d at 685; see also Patriotic Veterans, 736 F.3d at 1049 (“[T]hat a state has 

more stringent regulations than a federal law does not constitute conflict preemption.”) 

1

 Exhibit A is an unredacted copy of the Exhibit A that the Defendant attached to its Motion to Dismiss as 

Doc. #54 p. 23. 

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Second, even if federal law required biometrics for donor verification (which it does not), 

nowhere does 21 C.F.R. § 606.160(b)(1) say that biometric data is part of the “individual product 

record” that must be maintained for 10 years; in fact, this section does not reference biometrics. 

After unwinding a small regulatory puzzle—the records referred to by this regulation do not even 

cover biometric data. 

Starting with 21 C.F.R. § 640.65, a plasma company must establish a “donor identification 

system ... that positively identifies each donor and relates such donor directly to his blood[.]” Id. 

§ 640.65(b)(3). Similarly, 21 C.F.R. § 630.10(g)(1) requires plasma collection companies to 

“obtain proof of identity of the donor and a postal address”. Neither the § 640.65 “donor 

identification system” nor the § 630.10 “proof of identity” records require donors’ biometric data. 

In fact, the FDA has expressly declined to require it. See 80 Fed Reg 29,869 (May 22, 2015) (“We 

have not specified the means of establishing proof.”). Thus, § 630.10 and § 640.72 require that 

“proof of identity” records must be maintained—not that all such records be collected. 

Defendants’ argument is that any “proof of identity” record that they choose to use then 

becomes a matter of required retention. That argument has two significant problems. First, it 

admits there is no conflict between BIPA and the federal regulations. If BIPA prohibits the 

collection of biometric data that is retained for more than three years, and the FDA requires a 

longer retention period only if Defendants choose to collect biometric data, the answer is that 

Defendants may only choose the other options off the menu of the (entirely non-mandated) 

methods of identification. The second problem—more importantly—is that the regulations do not 

mandate the retention of everything that Defendants might choose to collect for their “donor 

identification” system or “proof of identity” records, but only what the respective sections require. 

See 21 C.F.R. § 630.10 and 21 C.F.R. § 640.72. The regulations require the records that would be 

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material (i.e., “as necessary”) for inspectors to trace plasma products through the manufacturing 

process, should problems arise later—as in, the donor’s name and contact information, not 

fingerprints they used to identify themselves. Id. §§ 600.12(a), (b)(1).2

 Hence, the “individual 

product record” does not include biometric data or, at the very least, need not include it. 

Third, even if there were a conflict (and there is not), and even if federal law mandated 

biometric identification (it does not), Defendants have not met their burden to show the “major 

damage” to federal interests for conflict preemption to occur. Patriotic Veterans, 736 F.3d at 1050. 

Defendants would be able to track every single donor using the photo identification and personal 

information they collect from donors in practice (and in satisfaction of actual FDA requirements). 

If the more stringent BIPA standard applied over the FDA’s, Defendants could keep 

records of their donors’ biometric data for 3 years—and then keep all the other identifying 

information for longer. Consider how difficult it would be for an ineligible donor to slip past the 

Defendants if BIPA’s 3-year requirement carried the day. A person would (a) have donated plasma 

more than 3 years ago, but less than 10 years ago, and (b) present a believably fake photo 

identification card, name, address, proof of address, and proof of social security number (which 

would be odd because they would want the payment made out to themselves, as opposed to 

someone else). Then, the person would have to successfully lie their way through Defendants’ 

questionnaire and screening and blood test. Defendants would have to fail to identify any issues 

with the plasma sample during their testing process. This does not create a realistic problem and 

would be a minor interference with the federal interest in protecting the plasma supply chain’s 

safety. Cf. New Mexico Dep’t of Human Servs v Dep’t of Health & Human Servs Health Care Fin. 

2

 Hence, the Defendants’ competing plasma collector Octapharma Plasma, Inc. was able to resolve its 

BIPA litigation in part by agreeing to prospective relief that if it utilizes biometrics in the future, it will 

agree to destroy collected biometric information within 3 years. See Crumption v. Octapharma Plasma, 

Inc., 19-cv-08402 (N.D. Ill.) [ECF #78-1 at par. 2.2]. 

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Admin., 4 F.3d 882, 886 (10th Cir. 1993) (no conflict preemption where differences in national 

uniformity of marital income distribution process would not significantly undermine Medicaid 

goals). This risk is not a sufficiently serious threat to federal interests to justify preemption. BIPA 

is no obstacle to the FDA’s objectives. Far from the “major damage to clear and substantial federal 

interests” required for preemption.3

 For the foregoing reasons, this Court can and should reject any 

preemption argument. 

Finally, even if the Defendants were somehow correct about their twice-rejected 

preemption argument, it would only apply to Plaintiffs’ claim under subsection (a) of the BIPA 

(740 ILCS 14/15(a)), setting forth the data retention requirement; it would not apply to the claims 

for failing to obtain written consent as required by 740 ILCS 14/15(b). Plaintiffs have not carved 

out a separate count for claims under BIPA 15(a), and it is not procedurally proper to consider 

such an argument because a “motion to dismiss under Rule 12(b)(6) doesn’t permit piecemeal 

dismissals of parts of claims[.]” BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015). 

II. PLAINTIFF VAUGHAN STATES A CLAIM UNDER SECTION 15(b) 

Defendants argue that Vaughan’s claim (only to the extent brought pursuant to Section 

15(b)) should be dismissed because of a Consent Form that they attached as Exhibit A (unredacted 

form is Plaintiffs’ Exhibit A). This argument is properly rejected for two procedural reasons and 

one substantive reason. 

As a threshold matter, it is not appropriate to consider this unauthenticated 95% redacted 

document on a motion to dismiss particularly where, as here, the Plaintiffs allege (Amended 

3

 Notably, the federal rules allowing (but not requiring) biometrics were passed several years after BIPA.

See 80 Fed. Reg. 29,869 (May 22, 2015). If Congress believed BIPA interfered with the FDA’s rules, it 

presumably would have enacted a pre-emption provision. See, Wyeth v. Levine, 555 U.S. 555, 574, 129 S. 

Ct. 1187, 1200, 173 L. Ed. 2d 51 (2009)(“If Congress thought state-law suits posed an obstacle to its 

objectives, it surely would have enacted an express pre-emption provision at some point”). 

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Complaint ¶¶ 20, 55) they were not provided a proper BIPA consent. See Cothron v. White Castle 

Sys., Inc., 467 F. Supp. 3d 604, 614 (N.D. Ill. 2020)(refusing to allow the consideration of a BIPA 

consent form at the motion to dismiss stage if not specifically referenced in the complaint and 

noting that consent would relate to an affirmative defense rather than a motion to dismiss in any 

event); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“[C]ourts 

should usually refrain from granting Rule 12(b)(6) motions on affirmative defenses.”). 

Defendants’ unauthenticated and heavily redacted Exhibit A cannot be considered on a Motion to 

Dismiss. Even if allowed, it relates to substantive affirmative defenses. 

Additionally, as set forth in the previous section, the Amended Complaint does not include 

a separate Count for a Section 15(b) claim. Under governing Seventh Circuit authority, “[a] motion 

to dismiss under Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of claims[.]” BBL, 

Inc., 809 F.3d at 325. The question at the pleadings stage “is simply whether the complaint includes 

factual allegations that state a plausible claim for relief.” Id. Significantly, the Illinois Supreme 

Court made clear that a person is “aggrieved” and may pursue a cause of action where she alleges 

that a private entity, like Defendants, violate any of their rights in BIPA Section 15. Rosenbach v. 

Six Flags Entm’t Corp., 2019 IL 123186, ¶ 33. Defendants limited their argument to just Section 

15(b) and Defendants have not challenged the other claims within Counts I or II. 

From a substantive standpoint, Exhibit A does not comply with BIPA. Exhibit A is several 

pages long, and the referenced language does not appear until paragraph 16. See Exhibit A, at p. 

29. The BIPA does not speak to whether the consent language may be buried with other 

requirements. That the consent language is not immediately apparent or in a standalone form 

diminishes the effectiveness of the release. Even if the location of the consent language were 

immaterial, the language at issue is plainly insufficient. 

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Paragraph 16 of Exhibit A provides that the fingerprint is for “authentication,” and 

“acknowledgement” and “verification” that the statements made by the donor during the screening 

process are accurate. This provision was intended as verification of the truth of the statements 

made in the screening. This provision is not a disclosure related to, or written release authorizing, 

Defendants’ collection of Vaughan’s biometric data as required by BIPA Section 15(b). 

For ease of reference, the subject provision (paragraph 16) is copied here: 

I understand and agree that I Will provide my fingerprint as biometric 

authentication of my identity as part of the automated screening process (one time 

at the beginning of the screening process and one time at the completion of the 

screening process). I further understand and agree that by and through the provision 

of my fingerprint following the completion of the health, medical, and lifestyle 

history questions and acknowledgment and verification statements contained in the 

automated screening process, I have acknowledged, verified, and agreed to, and 

will acknowledge, verify, and agree to, all of the information, answers, statements, 

and representations provided and made in response to such questions and 

statements and have represented, and will represent, that all such information, 

answers, statements, and representations are true, accurate, and complete. Id.

According to BIPA Section 15(b), the written release must “(1) inform[] the subject...that 

a biometric identifier or biometric information is being collected or stored; [and] (2) inform the 

subject...of the specific purpose and length of term for which a biometric identifier or biometric 

information is being collected, stored, and used.” 740 ILCS 14/15(b). Defendants’ purported 

consent does neither. For example, it leaves the individual with no information about how long the 

Defendants will keep the biometric information or that the information was turned over to a third 

party, the vendor who administers the biometric collection device. The disclosure also does not 

disclose that the biometric information is being stored by the Defendants. 

BIPA defines a “written release” as “informed written consent or, in the context of 

employment, a release executed by an employee as a condition of employment.” 740 ILCS 

14/15(b)(3) (emphasis added). Defendants’ claimed BIPA waiver does not qualify as “informed 

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consent” to the collection of sensitive biometric information. Exhibit A is inadequate to comply 

with BIPA’s “safeguards to insure that individuals’ . . . privacy rights in the biometric identifiers 

and biometric information are properly honored[.]” Rosenbach, 2019 IL 123186, ¶ 36. BIPA 

contains strict, but easy-to-follow, requirements for which a violation, such as Defendants’ invalid 

consent form, is actionable. Id. at ¶ 33. 

In the state case of Christmas v. Landmark of Richton Park, 20CH5439 (Oct. 22, 2021, 

Cir. Ct. Cook Cty., Ill.) (Exhibit B), the Honorable Neil H. Cohen denied the BIPA defendant’s 

motion for summary judgment where the plaintiff was (a) shown an electronic copy of a BIPA 

consent form as part of enrolling onto a biometric timeclock and (b) also was provided an 

employee handbook containing a full BIPA waiver. The Cook County court noted that: 

As to Plaintiff’s purported consent to the Biometric Policy based upon the alleged 

time clock notice, BIPA requires a written release. (emphasis in original) 

The court further notes that the Biometric Policy purportedly electronically signed 

by Plaintiff does not actually identify any of the entities involved in the collection, 

storing or destruction of the employee's biometric data. Instead, there are empty 

spaces where the entity's name should be. As to the Employee Handbook, this court 

questions whether acknowledgment of receiving an employee handbook, which 

happens to contain a biometric policy, constitutes informed written consent to the 

biometric policy. 

Id. at p. 5.

As stated in Christmas, “informed consent” is not accomplished when the subject does not have 

the “opportunity fully read and comprehend the notice before purportedly acknowledging it.” Id. 

Defendants’ Exhibit A is deficient in the same regard. The disclosure buried in paragraph 16 does 

not lend well to “informed written consent” even if it contained all the information required by 

BIPA (which it clearly does not). Therefore, Defendants are not entitled to dismissal of Plaintiff 

Vaughan’s Section 15(b) allegations. See id. 

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Also, in Wypych v. Cheese Merchants of America, LLC, 20 CH 2437 (July 21, 2021, Cir. 

Ct. Cook Cty., Ill.) (Exhibit C), the Honorable Moshe Jacobius denied a motion to dismiss 

predicated on a BIPA disclosure being contained in handbook and in onboarding slides. A similar 

denial was made in Slater, et al. v. H&M, et al., 2018 CH 16030 (Nov. 4, 2019, Cir. Ct. Cook Cty., 

Ill.), where the Honorable Pamela Meyerson denied a motion to dismiss, finding that whether or 

not the defendants met Section 15(b)’s requirements with a consent form included in a handbook 

was not an “easily-proved issue[] of fact”. Exhibit D (order and transcript at 51:20-52:3 [court 

ruling] & 21:8-22:12, 25:8-26:8 [plaintiff’s argument re: insufficiency of handbook disclosure]). 

BIPA Section 15(b) requires more to obtain “informed written consent” than what Defendants did. 

III. BIOMETRIC INFORMATION USED TO IDENTIFY A PLASMA SELLER IS 

NOT EXEMPT UNDER BIPA 

A. Plasma Sellers are not “Patients” In a “Health Care Setting”. 

The BIPA, 740 ILCS 14/10 provides in relevant part: “Biometric identifiers do not include 

information captured from a patient in a health care setting or information collected, used, or stored 

for health care treatment, payment, or operations under” HIPAA. Defendants argue that plasma 

sellers are “patients” who are in a “health care setting”. As an initial matter, nowhere in the 

Amended Complaint do Plaintiffs allege that they were “patients” or that the biometric disclosure 

occurred in a “health care setting”. Resolving this dispute on a motion to dismiss is not appropriate. 

See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)(“We construe the complaint in 

the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and 

drawing all possible inferences in her favor”). 

Even if substantively considered, Defendants’ position is inaccurate. First, Defendants 

provide no health care or treatment to the Plaintiffs. Defendants have admitted that they do not. 

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Defendants redacted those portions of the Exhibit A to their Motion to Dismiss that explicitly say 

they are not providing health care of any kind (the unredacted copy is attached hereto):4

 

“I understand and agree that the Center is not a health care provider, but rather a 

plasma collection facility, that it and its staff cannot provide, and are not providing, 

me with medical advice or treatment...” (Exhibit A, attached hereto, p. 3, par. 7(E)) 

(emphasis added).

“The tests done on my blood and plasma are tests that are required by the FDA for 

the purpose of screening blood and plasma donors. These screening tests are NOT 

medical diagnostic tests and are NOT intended to diagnose any medical condition 

or obtain a formal medical, diagnosis or medical care from the Center staff.” (Id. 

At p. 4 par. 12) (emphasis added, except “NOT” was capitalized in original).

Defendants’ admissions--which they elected to redact--foreclose any possibility that 

Plaintiffs are patients in a health care setting. 

 As a secondary basis for denying the Motion, common dictionary definitions further 

undermine Defendants’ argument. Merriam-Webster defines a “patient” as “in individual awaiting 

or under medical care or treatment” or “the recipient of any of various personal services”.5

 It 

defines “health care” as “efforts made to maintain or restore physical, mental, or emotional wellbeing especially by trained and licensed professionals”. These definitions comport with the 

commonsense understanding that a patient goes to a health care facility to get treatment (or “care”). 

To the contrary, here the Plaintiffs make money by selling their plasma to the Defendants; any 

medical screening that may have existed was to determine eligibility to sell their plasma not 

because they were “patients” or “in a health care setting”. 

Judge Chang in Marsh rejected an identical argument by analyzing various dictionary 

definitions of “patient” and “health care setting” and concluded that “a person who 

4

 While the Plaintiffs have not agreed that this document is admissible on a Motion to Dismiss, after they 

filed the lawsuit, the Defendants provided them with an unredacted copy of what was attached as Exhibit 

A to their Motion. 

5

 https://www.merriam-webster.com/dictionary/patient 

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sells plasma to [a plasma collection company] is not a ‘patient’ in a ‘health care setting’ within 

BIPA’s meaning. 503 F. Supp. 3d at 683–84.6 See also Kaufmann v. Schroeder, 241 Ill. 2d 194, 

197 (2011)(an inappropriate touching by a physician, in a hospital, and during a medical procedure 

does not arise out of “patient care” for purposes of statute of limitations).7

 

Defendants cite Vo v. VSP Retail Dev. Holding, Inc., 19 C 7187, 2020 WL 1445605, at *2 

(N.D. Ill. Mar. 25, 2020). In Vo, the plaintiff sued after she used software that provided “a health 

care service by ensuring the appropriate fit and positioning of corrective eyewear.” Id. at 2. The 

defendant, therefore, was helping eyecare patients who had to correct their vision. Id. at 2 (noting 

that “VSP provides health care by selling a device or equipment in accordance with a 

prescription—namely eyewear—and by offering a service or procedure that affects the function of 

the body—namely vision.”). On its face, the case is readily distinguishable. Plaintiffs, here, were 

not getting corrections to their blood; they were selling material extracted from their blood for 

Defendants’ manufacturing process (nor were the Vo plaintiff selling their eyeballs). Marsh 

6

 Judge Kendall too analyzed this defense in Crumpton. Her analysis, however, was on the Plaintiff’s motion 

to strike an affirmative defense and therefore procedurally different. From this standpoint, she concluded 

that based upon the definitions the Court analyzed, that plaintiff “has not demonstrated beyond a reasonable 

doubt that [defendant] can prove no set of facts indicating donors are also patients under BIPA.” 513 F. 

Supp. 3d at 1016. Of course, the opposite procedural stance is being used here because unlike in Crumpton

where the Plaintiff’s moved, here the Defendants are moving to dismiss and must affirmatively demonstrate 

that plaintiffs are patients in a health care setting; something they have not done. 

7

 BIPA provides a particularized meaning of “biometric identifier,” explicitly defined as a “retina or iris 

scan, fingerprint, voiceprint, or scan of hand or face geometry.” 740 ILCS 14/10. However, the legislature 

excluded from this definition all “information captured from a patient in a health care setting or information 

collected, used, or stored for health care treatment, payment, or operations under [HIPAA].” Id. (emphasis 

added). Given BIPA’s explicit reference to “patient” information and HIPAA’s regulation of “patient” 

privacy exclusively, this limited exclusion unquestionably applies only to patient information. This only 

makes sense. It would be highly imprudent—and indeed, potentially life-threatening—for a health care 

provider to withhold emergency treatment involving the collection of biometric identifiers or biometric 

information from an unconscious patient until they can sign a BIPA-compliant written release. BIPA’s 

explicit reference to biometrics “from a patient” clearly memorializes the legislature’s intent to exclude 

patient biometrics from the BIPA safeguards enacted because patient biometrics are already protected under 

HIPAA and its strict penalties. 

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distinguished Vo from the plasma seller relationship finding that it is “quite unlike the relationship 

in Vo.” 503 F. Supp. 3d at 684. As Marsh explained, “here the plasma donor sells plasma to CSL 

and receives only money in return, not any kind of health service. Vo is not on point .... The 

exception does not apply.”8

 In truth, when Vo’s reasoning is applied, it offers yet another basis for denying the Motion 

to Dismiss here. Vo, in analyzing the HIPAA exemption (not at issue in this case, because 

Defendant is not subject to HIPAA as it is not a health care provider), applied HIPAA’s definition 

of “heath care”. If that definition is applied, it demonstrates why selling plasma cannot be “health 

care” of a “patient” under any definition. HIPAA defines “health care” as “care, services, or 

supplies related to the health of an individual.” 45 C.F.R. §103. While “assessment” is listed as an 

example of such health care, that assessment must of course relate to the “care, services, or supplies 

related to the health of an individual.” See Heard v. Becton, Dickinson & Co., 524 F. Supp. 3d 

831, 845 (N.D. Ill. 2021)(“The court reads the phrase “for health care treatment ... under [HIPAA]” 

to mean biometric information ‘collected by a HIPAA covered entity for the purpose of health care 

treatment, payment, or operations.’”). Because the patient in a health care setting exemption does 

not apply, the Defendants’ argument should be denied. 

B. The Defendants’ Reliance Upon “information collected, used or stored for health 

care treatment” Under HIPAA Is Misplaced. 

Relatedly, the Defendants argue (Motion, p. 12) that biometric data is excluded from 

BIPA’s scope under the exclusion for “information collected, used or stored for health care 

8

 Furthermore, Vo relied upon section 160.103 of the Code of Federal Regulations, which defines health 

information as “any information,[ ... ], that: (1) Is created or received by a health care provider [ ... ], 

employer,[ ... ]; and (2) Relates to the past, present, or future physical or mental health or condition of an 

individual; the provision of health care to an individual; or the past present, or future payment for the 

provision of health care to an individual.” 45 C.F.R. § 160.103. The definition includes information 

created by a “health provider,” which Defendants admit they are not. 

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treatment” under HIPAA. See 740 ILCS 14/10. To make their point, they cite to their own Internet 

site for the argument that the plasma they purchase is resold to pharmaceutical companies to make 

medicine. These, and the other extraneous facts, are not in the Amended Complaint. They must be 

disregarded on a motion to dismiss. See Thomas by & through Phillips v. Illinois Dep't of Human 

Services, 20-CV-03498, 2021 WL 4439417, at *2 (N.D. Ill. Sept. 28, 2021). 

In function, as demonstrated above, Defendants do not provide health care treatment. The 

common-sense understanding and dictionary definitions of these terms are consistent with the U.S. 

Department of Health and Human Services (“HHS”). The HHS found that plasma donation centers 

were not subject to HIPAA compliance. See Standards for Privacy of Individually Identifiable 

Health Information, 65 Fed. Reg. 82,477 (Dec. 28, 2000)(emphasis added)(“[T]he procurement or 

banking of ... blood ... or any other tissue or human product is not considered to be health care 

under this rule and the organizations that perform such activities would not be considered 

health care providers[.]”). HHS has exempted plasma centers from the standards for privacy of 

identifiable health care information specifically because these centers do not provide “health care” 

and do not see “patients”. Cf. 65 Fed.Reg. 82,572. As HHS explains: 

Comment: Some commenters suggested that blood centers and plasma donor 

centers that collect and distribute source plasma not be considered covered health 

care providers because the centers do not provide “health care services” and the 

blood donors are not “patients” seeking health care. Similarly, commenters 

expressed concern that organ procurement organizations might be considered 

health care providers. 

Response: We agree and have deleted from the definition of “health care” the term 

“procurement or banking of blood, sperm, organs, or any other tissue for 

administration to patients.”9 

9

 https://www.ihs.gov/sites/privacyact/themes/responsive2017/display_objects/documents/PvcFR03.pdf 

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See Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-0110

More to the point, while admitting they provide no health care on Exhibit A, Defendants 

admit to the real reason for biometric collection: to identify the plasma seller. (See Exhibit A at a 

“fingerprint [is provided] as biometric authentication of my identity as part of the automated 

screening process”). 

What the Defendants seem to say is that any biometric information provided in any manner 

in the health care field is exempt. That is not the law—there must be a connection between the 

collection of a biometric template with the health care treatment. See Crumpton, 513 F. Supp. 3d 

at 1015 (striking HIPAA/health care BIPA affirmative defense because it “inadequately pleads a 

connection between collecting a biometric template” and how that template is used for treatment). 

As such, biometric claims are routinely allowed in the heath-care industry. See Peaks-Smith vs. St. 

Anthony Hospital, 2018 CH 2077 (Transcript of Proceedings, Exhibit E, at p. 26) (Cir. Ct. Cook 

Cty. Jan 7, 2020) (J. Gamrath)(in denying hospital’s motion to dismiss brought that used a 

biometric device --for medication disbursement, fraud prevention, and timekeeping--the court 

explained BIPA was not intended to exempt health care service providers and noting that such an 

interpretation would “mean that any hospital, any health care provider could say we do not fit 

under BIPA because we provide health care services, and that does not seem to be the intent of the 

legislature.”); Bruhn v. New Albertson’s Inc., No. 18-CH-01737 (Cir. Ct. Cook Cty. July 2, 2019) 

(J. Loftus)(Exhibit F Transcript of Proceedings at p. 53)(denying motion to dismiss in claim 

10 Furthermore, HHS explains that: “Comment: One commenter asked that we revise the definition to 

explicitly exclude plasmapheresis from paragraph (3) of the definition. It was explained that plasmapheresis 

centers do not have direct access to health care recipients or their health information, and that the limited 

health information collected about plasma donors is not used to provide health care services as indicated 

by the definition of health care. Response: We address the commenters’ concerns by removing the provision 

related to procurement and banking of human products from the definition.” Standards for Privacy of 

Individually Identifiable Health Information, 65 FR 82462-01. See also 65 Fed. Reg.at 82,572 (HHS 

removing provision governing “procurement and banking of human products”). 

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brought by pharmacist who was required to scan fingerprint to access pharmacy computer system 

and noting that: “[t]o read the exception as Defendants set forth is nonsensical, in this court’s 

opinion, essentially that Defendants argue a blanket exemption for doctors, nurses, physical 

therapists, CNA’s, ultrasound technicians, anyone subject to HIPAA who uses biometric 

information to access medical records or billing records or hospital records. These large categories 

of workers cannot look to BIPA to protect their privacy. If the General Assembly intended to 

exempt BIPA for anyone subject to HIPAA, the legislature would have said so.); Thurman v. 

Northshore University Health System, 2018 CH 3544 (Cir. Ct. Cook Cty. Dec. 12, 2019) (J. 

Valderrama) (rejecting Defendants hospital’s argument that case had to be dismissed under BIPA’s 

health care exception because the device at issue used as “an authorization method to allow access 

to stored materials and certain restricted areas” at Evanston Hospital). (Exhibit G p. 9). While 

hospitals and pharmacies may interact with patients in a health care setting, Defendants admit they 

provide no health services care whatsoever to its plasma sellers. 

In Heard v. Becton, Dickinson & Co., 524 F. Supp. 3d 831, 844 (N.D. Ill. 2021), the court 

noted that if the legislature had intended to grant a sweeping, categorical exemption to a particular 

industry in BIPA, it knew how to. For instance, the exemption for financial institutions explicitly 

provides that, “[n]othing in this act shall be deemed to apply in any manner to a financial 

institution . . . that is subject to Title V of the federal Gramm-Leach-Bliley Act of 1999 and the 

rules promulgated there under.” 740 ILCS 14/25(c) (emphasis added). Under this exemption, all 

banks subject to Title V of the Gramm-Leach-Bliley Act are exempt from BIPA. Unlike the 

banking exemption, “the legislature did not include a provision explicitly stating that BIPA shall 

not be construed to apply to a health care provider” (Heard, 524 F. Supp. 3d at 844) let alone a 

plasma purchasing company. Defendant’s reliance on a Will County transcript in Diaz v. Silver 

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Cross Hosp. & Med. Ctrs., No. 2018 CH 001327 (Cir. Ct. Will Cnty. Aug. 29, 2019) is 

unpersuasive. As Judge Pallmeyer found in Heard, regardless of how persuasive its reasoning was 

(she pointed out it conflicted with four other courts), it is distinguishable because it only applies 

to hospitals. 524 F. Supp. 3d at 845. 

Nowhere does BIPA state, for example, that “nothing in this act shall be deemed to apply 

in any manner to facilities that have medical professionals working at them.” BIPA does not flatly 

exempt all plasma buyers like it exempts all Title V banks. The legislature’s restraint is reasonable. 

It did not intend for all health care facilities – including, but not limited to, hospitals, pharmacies, 

insurance companies, nursing homes, etc.– to be exempt from BIPA’s security measures. If the 

legislature intended to create such a broad BIPA exemption, it would have said so. Cf. In re Jaffe, 

932 F.3d 602, 606 (7th Cir. 2019). 

C. Finger Scans Do Not “Validate Scientific Testing or Screening” 

Defendants argue that the data they collect is exempt from BIPA’s definition of “biometric 

identifier[s].” 740 ILCS 14/10. The exemption reads: “Biometric identifiers do not include an Xray, roentgen process, computed tomography, MRI, PET scan, mammography, or other image or 

film of the human anatomy used to diagnose, prognose, or treat an illness or other medical 

condition or to further validate scientific testing or screening.” 740 ILCS 14/10 (emphasis added). 

Defendants’ collection of biometric identifiers to identify its donors does not “further validate 

scientific testing or screening” because it makes no claim to be doing any “testing” using biometric 

data at all. The biometric scan itself is not used for scientific testing or screening. See Crumpton, 

513 F. Supp. 3d at 1017 (N.D. Ill. 2021)(striking affirmative defense because it “does not allege 

the biometric identifiers themselves are integral to screening or testing the donor or their plasma 

or blood for any condition or disease. Moreover, validating donor identity is not the same 

as validating the underlying testing or screening.”). 

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Defendants may argue that they are “screening” their donors because they use biometric 

data to identify them. Such an interpretation would swallow the law and exempt the most common 

BIPA cases. The term “screening” is undefined in BIPA. “Screen” has two potentially relevant 

meanings—only one applies. See County Of Cook v. Illinois Labor Relations Bd. Local Panel, 347 

Ill. App. 3d 538, 547, 807 N.E.2d 613, 621 (2004) (“If the language of the statute permits two 

constructions, one of which would render the provision absurd ... and the other of which would 

render the provision reasonable ... the former construction must be avoided.”). The correct 

meaning is “to test or examine for the presence of something (such as a disease)[.]” Merriam 

Webster, “Screen[,]” Entry 2(3)(b)(3). This is the only interpretation that makes sense given the 

language of the exemption as a whole: mammograms, X-rays, MRIs, and the like, are used in 

relation to evaluative or diagnostic screening, i.e., the assessment of a specific portion of the human 

anatomy for the detection of a disease in the same body part.11 These processes are each used to 

locate and diagnose diseases. 

Which brings us to the wrong meaning of “screen”— the one Defendants will advocate 

for—“to make a separation into different groups[.]” Merriam Webster, “Screen[,]” Entry 

2(3)(b)(1). This meaning is not related to the foregoing terms of the exemption and would not 

make sense in the context of the entire provision, which is concerned with the collection of 

biometric data to provide health care services. See Fuesting v. Uline, Inc., 30 F. Supp. 3d 739, 742 

(N.D. Ill. 2014) (language should “not be considered in isolation, but, instead, must be read in 

context”). Court use the noscitur a sociis canon of construction. Adopting the different-groups 

definition of “screen” would exempt some of the clearest BIPA cases and re-write the statute. 

11 See Ctr. Video Indus. Co. v. Roadway Package Sys., Inc., 90 F.3d 185, 187 (7th Cir. 1996) (“[W]here a 

general term follows a series of specific terms, the former ... extends only to matters of the same general 

class or nature as the terms ... enumerated.”) 

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A company that uses fingerprint scanners to facilitate consumer transactions would be 

exempt, because it uses “scientific ... screening” to screen for consumers who have financial 

accounts linked with their biometric data versus those who do not. See 740 ILCS 14/5(a)-(c); 95th 

Ill. Gen. Assem., House Proceedings, May 30, 2008, at 249 (statement of Rep. Ryg) (describing 

Pay By Touch bankruptcy that led to passage of BIPA). An employer requiring employees to 

provide fingerprints to clock into work would be exempt, because it uses biometrics to screen for 

the correct employee’s identity. Compare with Rogers v. CSX Intermodal Terminals, Inc., 409 F. 

Supp. 3d 612, 615 (N.D. Ill. 2019) (dismissing BIPA claim for damages, but holding employee 

stated BIPA claim against employer who required fingerprint scanning to obtain access to 

facilities); Treadwell v. Power Sols. Int’l, Inc., 427 F. Supp. 3d 984, 987 (N.D. Ill. 2019) (same, 

but fingerprint scanning used for timekeeping). 

If the legislature intended to create such a broad BIPA exemption encompassing both 

meanings of “screening[,]” it would have said so. Cf. In re Jaffe, 932 F.3d at 606 (7th Cir. 2019) 

(“[I]f the Illinois legislature wanted to exempt particular interests from the attachment of judgment 

liens, it had no problem in doing so.”). Instead, the legislature used “screening” at the end of a 

series of procedures used for evaluative and diagnostic health care. The alternate definition is 

unworkable with “the familiar principle of statutory interpretation that exemptions from a statute 

that creates remedies should be construed narrowly”. Yi v. Sterling Collision Centers, Inc., 480 

F.3d 505, 508 (7th Cir. 2007); Rosenbach, 2019 IL 123186, ¶ 36 (observing that the legislature’s 

goal was to provide large-scale protection for all individuals who have their biometric identifiers 

and information collected in Illinois). 

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IV. PLAINTIFFS SUFFICIENTLY PLEAD A VIOLATION BY EACH 

DEFENDANT 

Defendants argue that the Amended Complaint does not allege a violation against each 

separate Defendant by, for example, stating at which entity they sold their plasma. Liability in this 

case is not predicated upon which Defendant purchased the plasma—it is based upon which 

committed a BIPA violation. The Amended Complaint properly alleges that each of the 

Defendants committed biometric violations regardless of the specific donation center location. See, 

e.g. Amend Comp. ¶ 87 (“Defendants have been and continue to be in possession of Plaintiffs’ 

biometrics, and it collected, captured, or otherwise obtained their biometric identifiers and 

biometric information within the meaning of the Act.”) ¶ 26 (“Defendants then used Plaintiffs’ 

biometrics as an identification and authentication method to track their plasma donations and 

identity.”) ¶ 27 (“Defendants subsequently stored Plaintiffs’ biometric data in their database(s)”) 

¶ 88 (“Defendants collected, captured, or otherwise obtained, Plaintiffs’ biometric identifiers”). 

Plaintiffs believe that discovery will show that the Defendants operate a common biometric 

collection system. Plaintiffs allege the Defendants operate as part of the “Grifols network”. Id. ¶

5. Defendants’ Exhibit A is a Grifols form that has the stamp of “Biomat USA, Inc.” on the bottom. 

Id. It says that personal identification information may be provided to parents, subsidiaries, and 

affiliated companies; and all the Defendants share a common Grifols Internet site.12 

Defendants are each on notice of the claims against them. This is all that is required for 

notice pleading. Cunningham v. Foresters Fin. Services, Inc., 300 F. Supp. 3d 1004, 1016 (N.D. 

Ind. 2018)(“While Plaintiff must ultimately prove each individual defendant's role and 

relationship” at the pleading stage “he need only generally allege” claims to provide notice.”). For 

12 https://www.grifolsplasma.com/en/home Grifols appears to have created these entities to purchase 

plasma as it is a publicly-traded Spanish pharmaceutical and chemical manufacturer. 

https://en.wikipedia.org/wiki/Grifols 

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example, in Wordlaw v. Enter. Leasing Co. of Chicago, LLC, 20 CV 3200, 2020 WL 7490414, at 

*3 (N.D. Ill. Dec. 21, 2020), the BIPA plaintiff asserted common claims against two related 

entities. The court noted that while the plaintiff was “currently unable to allege which [defendant] 

in particular installed and controlled the [biometric] system” the plaintiff for now “alleged enough 

to put both defendants on notice of their alleged wrongdoing.” Id. at *3 (“Plaintiff will have to 

prove unlawful dissemination to prevail, but more detail about how she will do that is not necessary 

at this stage of the case.”). 

A. State of Mind Allegations Are Irrelevant to Evaluating the Pleading 

Sufficiency of BIPA Claims, But in Any Event, Are Sufficiently Pled. 

Defendants next argue that Plaintiffs’ claims are barred because they did not adequately 

plead recklessness. Defendants are mistaken because federal pleading standards do not permit 

dismissal of parts of claims, and BIPA does not require factual allegations showing the defendant’s 

state of mind to properly allege BIPA claims under Section 15. 

Under governing Seventh Circuity authority, “[a] motion to dismiss under Rule 12(b)(6) 

doesn’t permit piecemeal dismissals of parts of claims[.]” BBL, Inc. v. City of Angola, 809 F.3d 

317, 325 (7th Cir. 2015). The question at the pleadings stage “is simply whether the complaint 

includes factual allegations that state a plausible claim for relief.” Id. The Illinois Supreme Court 

has made clear that a person is “aggrieved” and may pursue a cause of action where she alleges 

that a private entity, like Defendants, violate any of their rights in BIPA Section 15. Rosenbach, 

2019 IL 123186, ¶ 33. Critically, only after Plaintiffs qualify as a “prevailing party” is it necessary 

to determine whether Defendants’ BIPA violations were “negligent” or “reckless” for damages 

purposes. 740 ILCS 14/20(1)-(2). 

Considering this standard, one court in the Central District of Illinois concluded that “a 

BIPA plaintiff need not plead facts showing the defendant’s mental state to state a claim for relief.” 

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Snider v. Heartland Beef, Inc., 2020 WL 4880163 at *5 (C.D. Ill. Aug. 14, 2020) (Darrow, C.J). 

In reaching this conclusion, the Snider court relied on Judge Tharp’s opinion in Cothron v White 

Castle System, Inc., which reasoned that because a BIPA plaintiff may prevail and obtain 

attorney’s fees, costs, and injunctive relief without establishing negligence or recklessness, there 

is no requirement to plead facts establishing entitlement to liquidated damages within the same 

claim for relief. 467 F.Supp.3d at 615 (“[Plaintiff’s] complaint states a plausible claim for relief 

under sections 15(b) and 15(d); Rule 12(b)(6) does not require her to plead the facts that will 

determine the amount of actual damages she may be entitled to recover”).13

If Plaintiffs were required to plead negligence or recklessness (they do not), they have done 

so. BIPA was enacted in 2008 and the Defendants violated it more than a decade after BIPA was 

enacted, which independently supports an inference of negligence and recklessness. See Rogers v. 

BNSF Railway Co., 2019 WL 5635180, at *2 (N.D. Ill. Oct. 31, 2019) (“[T]he BIPA took effect 

more than ten years ago, and if the allegations of [the] complaint are true—as the Court must 

assume at this stage— [Defendants] made no effort to comply with its requirements. This is 

certainly enough, at the pleading stage, to make a claim of negligence or recklessness plausible”); 

Figueroa v. Kronos Inc., 2020 WL 1848206, at *8 (N.D. Ill. Apr. 13, 2020) (same); Marsh, 503 

F. Supp. 3d at 685–86 (same). Accordingly, state of mind is irrelevant to examining the pleading 

sufficiency of a BIPA claim and Plaintiffs nevertheless have alleged plausible claims for relief. 

V. CONCLUSION 

Wherefore, Plaintiffs request that the Court deny the Motion to Dismiss. 

Dated: January 17, 2022 Respectfully Submitted: 

By: /s/ David Fish 

13 Bradenberg v. Meridian Senior Living, LLC, 2021 WL 4494275, at *5–6 (N.D. Ill. Sept., 30, 2021) 

(explaining the remedies in BIPA Section 14/20 are “just that: a menu of remedies”; “other Illinois federal 

courts have held that plaintiffs need not plead either negligence, intentionality, or recklessness in a BIPA 

claim to survive a motion to dismiss”) (emphasis in original). 

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23 

David Fish (dfish@fishlawfirm.com) 

Mara A. Baltabols (mara@fishlawfirm.com) 

Fish Potter Bolanos PC

200 East Fifth Avenue, Suite 123

Naperville, Illinois 60563

Tel: 630.355.7590

Fax: 630.778.0400

docketing@fishlawfirm.com 

COUNSEL FOR THE PLAINTIFFS AND THE PUTATIVE CLASS

Case: 1:20-cv-04241 Document #: 60 Filed: 01/17/22 Page 28 of 29 PageID #:645
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CERTIFICATE OF SERVICE 

The undersigned attorney hereby certifies that a true and correct copy of the foregoing

was served via ECM/CF filing system on January 17, 2022 to all counsel of record. 

/s/David Fish

David Fish 

 

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