i 

THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO 

DISMISS PLAINTIFFS’ AMENDED COMPLAINT 

BRIAN R. VAUGHAN and JASON 

DARNELL, individually and on behalf of 

all others similarly situated, 

) 

) 

) 

 

Plaintiffs, 

) 

) Case No.: 20-cv-04241 

) 

 v. ) Honorable Marvin E. Aspen 

) 

BIOMAT USA, INC., TALECRIS 

PLASMA RESOURCES, INC., and 

INTERSTATE BLOOD BANK, INC., 

Defendants.

) 

) 

) 

) 

) 

Magistrate Judge Jeffrey Cole 

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................................................... ii

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

RELEVANT FACTS AND PLAINTIFFS’ CLAIMS ................................................................... 2

LEGAL STANDARD ..................................................................................................................... 3

ARGUMENT .................................................................................................................................. 4

I. PLAINTIFFS’ CLAIMS ARE PREEMPTED UNDER 

THE DOCTRINE OF CONFLICT PREEMPTION ............................................... 4

II. VAUGHAN FAILS TO STATE A CLAIM UNDER 

SECTION 15(b) ...................................................................................................... 7

III. THE ALLEGED BIOMETRIC INFORMATION IS 

EXEMPT FROM THE BIPA’S REQUIREMENTS .............................................. 9

A. BIPA exempts information collected from a 

patient in healthcare setting.......................................................9 

B. The BIPA exempts “information collected, used or 

stored for health care treatment” ............................................................... 12

C. The BIPA exempts “image[s] used to . . . validate 

scientific testing or screening” .................................................................. 14

IV. PLAINTIFFS FAIL TO SUFFICIENTLY PLEAD A 

VIOLATION BY EACH DEFENDANT ............................................................. 15

V. PLAINTIFFS’ CLAIMS THAT DEFENDANTS 

RECKLESSLY VIOLATED THE BIPA ARE 

UNSUPPORTED AND INSUFFICIENTLY PLED ............................................ 16

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES 

Cases Page(s) 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...............................................................................................................3, 4

Bank of Am., N.A. v. Knight, 

725 F.3d 815 (7th Cir. 2013) ...................................................................................................16

Chamberlain Grp., Inc v. Techtronic Indus. N. Am., 

No. 16 CV 06113, 2017 U.S. Dist. LEXIS 157301 (N.D. Ill. Sep. 26, 2017) .........................16

Crumpton v. Octapharma Plasma, Inc., 

513 F. Supp. 3d 1006 (N.D. Ill. 2021) .................................................................................7, 12

Diaz v. Silver Cross Hosp. & Med. Ctrs., 

No. 2018 CH 001327 (Cir. Ct. Will Cnty. Aug. 29, 2019) ......................................................14

EEOC v. Concentra Health Servs., Inc., 

496 F.3d 773 (7th Cir. 2007) .....................................................................................................3

Geier v. Am. Honda Motor Co., 

529 U.S. 861 (2000) ...............................................................................................................4, 7

Hecker v. Deere & Co., 

556 F.3d 575 (7th Cir. 2009) .....................................................................................................8

Hoagland v. Town of Clear Lake, 

415 F.3d 693 (7th Cir. 2005) .....................................................................................................4

Landers v. School Dist., 

66 Ill. App. 3d 78 (5th Dist. 1978) ...........................................................................................17

Marsh v. CSL Plasma Inc., 

503 F. Supp. 3d 677 (N.D. Ill. 2020) .................................................................................11, 12

Martin v. Direct Wines, Inc., 

2015 U.S. Dist. LEXIS 89015 (N.D. Ill. July 9, 2015) ..............................................................3

Mosby v. The Ingalls Mem’l Hosp. UCM Cmty. Health & Hosp. Div. Inc., 

No. 2018 CH 05031 (Cir. Ct. Cook. Cty. Jan. 13, 2020) .........................................................18

Namuwonge v. Kronos, Inc., 

418 F. Supp. 3d 279 (N.D. Ill. 2019) .......................................................................................17

Navarette v. Josam Acquisitions, 

No. 2019 CH 14368 (Cir. Ct. Cook Cty. Mar. 29, 2021) ........................................................18

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New York SMSA Ltd. P’ship v. Town of Clarkstown, 

612 F.3d 97 (2d Cir. 2010).........................................................................................................7

Pine Top Receivables of Ill., LLC v. Banco De Seguros Del Estado, 

No. 12 C 6357, 2013 U.S. Dist. LEXIS 28040 (N.D. Ill. Feb. 25, 2013) ..............................8, 9

Planned Parenthood of Ind., Inc., v. Comm’r of Ind. State Dep’t of Health, 

699 F.3d 962 (7th Cir. 2012) .....................................................................................................4

Resnick v. Schwartz, 

No. 17 C 04944, 2018 U.S. Dist. LEXIS 149767 (N.D. Ill. Sep. 3, 2018) ................................8

Rogers v. CSX Intermodal Terminals, 

409 F. Supp. 3d 612 (N.D. Ill. 2019) .......................................................................................17

Thurman v. Northshore Univ. Health Sys., 

No. 2018 CH 3544, 2019 WL 7249205 (Cir. Ct. Cook Cty. Dec. 12, 2019) ..........................18

Venture Assocs. Corp. v. Zenith Data Sys. Corp., 

987 F.2d 429 (7th Cir. 1993) .....................................................................................................8

Vo v. VSP Retail Dev. Holding, Inc., 

2020 U.S. Dist. LEXIS 53916 (N.D. Ill. March 25, 2020) ............................................9, 12, 13

Webster v. Windsor Estates Nursing and Rehab, 

No. 2019 CH 11441 (Cir. Ct. Cook Cty. Nov. 11, 2020) ........................................................18

Statutes 

Illinois Biometric Information Privacy Act 740 ILCS 14/1, et seq. ...................................... Passim

Rules and Other Authorities 

Fed. R. Civ. P. 8 .............................................................................................................................16

Fed. R. Civ. P. 12(b)(6)....................................................................................................................3

21 C.F.R. § 606.160 .....................................................................................................................1, 4

21 C.F.R § 630.10 ....................................................................................................................10, 15

21 C.F.R § 630.15 ..........................................................................................................................10

21 C.F.R. § 630.40 .........................................................................................................................11

21 C.F.R § 640.65 ..........................................................................................................................15

80 Fed. Reg. 29842, 29869 (May 22, 2015) ....................................................................................6

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INTRODUCTION 

Defendants Biomat USA, Inc., Talecris Plasma Resources, Inc. (“TPR”) and Interstate 

Blood Bank, Inc. (“IBBI”) operate plasma donation centers across the country. Through a process 

called plasmapheresis,1 Defendants obtain qualified donors’ plasma which is then used to create 

life-saving treatments for individuals across the globe suffering from a variety of medical 

conditions. Plaintiffs Brian Vaughan and Jason Darnell are two donors who donated plasma at 

Defendants’ centers in Illinois. Defendants are licensed and heavily regulated by the U.S. Food 

and Drug Administration (“FDA”). The FDA regulations, as set forth in the Code for Federal 

Regulations and extensive FDA guidance, require Defendants to undertake a thorough screening 

and donor-identification process for plasma donors such as Plaintiffs. As part of that process, 

Plaintiffs scanned their fingers to verify their identities at the start of the plasmapheresis screening 

process. 

Plaintiffs allege that this screening and identification procedure violated the Illinois 

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

that Defendants used a finger-scanner to allegedly capture their biometric identifiers and biometric 

information but did not (i) make certain disclosures and obtain written releases before doing so, or 

(ii) make publicly available a policy with guidelines for the retention and destruction of biometric 

identifiers and biometric information. Amended Complaint (“Am. Compl.”) ¶¶ 89-90. Plaintiffs’ 

claims should be dismissed on multiple grounds. 

First and foremost, Plaintiffs’ BIPA claims are preempted by FDA regulations mandating 

a ten-year retention period for records related to the collection of donor plasma. See 21 C.F.R. 

606.160(d). Because the BIPA’s requirement that biometric information be destroyed after three 

1

 Plasmapheresis is the process used in plasma donation whereby the plasma is separated from blood 

cells and the blood cells returned to the donor.

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years at the latest is fundamentally in conflict with Defendants’ obligations under federal law, 

Plaintiffs’ claims are barred under the doctrine of conflict preemption. 

Second, Plaintiff Vaughan’s claim under Section 15(b) should be dismissed because 

Vaughan consented, in writing, to the collection of his biometric information. 

Third, both Plaintiffs’ claims should be dismissed in their entirety because the alleged 

biometric data at issue, collected as part of the plasmapheresis screening process and for the 

purpose of facilitating plasma donations and health care treatment, is expressly exempted from the 

BIPA’s scope. 

Fourth, Plaintiffs’ claims should be dismissed because Plaintiffs fail to allege facts to 

sufficiently plead claims against each Defendant. 

Finally, to the extent Plaintiffs seek to recover for reckless violations of the BIPA, 

Plaintiffs’ complaint is insufficiently pled and devoid of any factual allegations to suggest that 

Defendants acted recklessly. 

RELEVANT FACTS AND PLAINTIFFS’ CLAIMS 2

Plaintiffs are two individuals who donated their plasma at federally licensed Plasma 

Donation Centers in Illinois. As part of that process, they allege that they “were required to scan 

at least one fingerprint so Defendants could create, collect, capture, construct, store, use, and/or 

obtain a biometric template for them.” Am. Compl. ¶ 26. Plaintiffs claim that Defendants then 

stored their alleged biometric data in Defendants’ databases and created a template based on 

Plaintiffs’ biometrics that could be used for future identification and authentication of donors. Id. 

¶¶ 26-27. Plaintiffs do not allege which plasma donation center(s) they visited, which Defendant 

operated the center(s) where they donated, or the dates of any of their donations. In fact, Plaintiffs 

2

 Defendants accept Plaintiffs’ well-pleaded allegations as true for purposes of this motion, as they 

must. 

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allege no facts specific to either of their experiences and make no distinction between any of the 

three Defendant entities. 

Instead, Plaintiffs generically claim that Defendants’ practices violated BIPA Sections 

15(a) and (b) because Defendants allegedly (i) never informed donors in writing that their 

biometric identifiers or information (“biometrics”) were being captured, obtained, collected or 

stored or the purpose and length of time for which their biometrics were being kept, (ii) never 

obtained donors’ written consent to capture, collect, obtain or store their biometrics, and (iii) failed 

to publicly disclose their retention schedule and guidelines for permanently destroying donor 

biometrics. Id. ¶¶ 54-57. Plaintiffs seek liquidated damages of $1,000 for each negligent violation, 

$5,000 for each willful or reckless violation, and other remedies. Id. ¶¶ 93, 105. 

Plaintiffs bring this suit on behalf of themselves and a putative class including “[a]ll 

persons who were enrolled in the biometric system used by Defendants in Illinois for plasma 

donors while donating plasma to Defendants from five years preceding the filing of this action to 

the date a class notice is mailed[.]” Id. ¶ 66. 

LEGAL STANDARD 

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must “contain 

sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (internal citations omitted). A claim should be dismissed where, 

accepting all well-pleaded factual allegations in the light most favorable to the plaintiff, the 

complaint nevertheless fails to “plausibly suggest that the plaintiff has a right to relief.” EEOC v. 

Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). Courts “need not accept as true 

legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements.” Martin v. Direct Wines, Inc., 2015 U.S. Dist. LEXIS 89015, at *2 (N.D. 

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Ill. July 9, 2015). Conclusions of fact and law “are . . . not entitled to the assumption of truth” and 

may be disregarded. Iqbal, 556 U.S. at 679. 

ARGUMENT 

I. PLAINTIFFS’ CLAIMS ARE PREEMPTED UNDER THE 

DOCTRINE OF CONFLICT PREEMPTION 

Plaintiffs’ claims that Defendants violated BIPA sections 15(a) and (b) must be dismissed, 

first and foremost, pursuant to the doctrine of conflict preemption. BIPA’s requirements are in 

fundamental conflict with federal regulations on the retention and preservation of donor records 

and frustrate the purpose of the FDA’s intent with respect to donor screening. 

The preemption doctrine, which is rooted in the Supremacy Clause of the U.S. Constitution, 

holds that federal law can preempt state laws in three ways: expressly 

(express preemption), impliedly (conflict preemption), and where federal legislation thoroughly 

occupies the legislative field (field preemption). Hoagland v. Town of Clear Lake, 415 F.3d 693, 

696 (7th Cir. 2005). Federal regulations promulgated by an agency acting non-arbitrarily and within 

its congressionally delegated authority may also have pre-emptive force. Geier v. Am. Honda Motor 

Co., 529 U.S. 861, 899 (2000). Conflict preemption arises in two scenarios: (1) when “it is 

impossible for a private party to comply with both state and federal requirements,” or (2) when 

“state law stands as an obstacle to the accomplishment and execution of the full purposes and 

objectives of Congress.” Planned Parenthood of Ind., Inc., v. Comm'r of Ind. State Dep't of Health, 

699 F.3d 962, 984 (7th Cir. 2012). Plaintiffs’ claims are implicitly preempted for both reasons. 

First, BIPA’s requirements are in inherent conflict with Defendants’ obligations under 

federal law. The collection of source plasma is subject to numerous and extensive federal 

regulations, including regarding the retention of donor records. See 21 C.F.R. § 606.160(b)(1). 21 

C.F.R. § 606.160 sets forth the retention period for manufacturing records and states as follows: 

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(d) Records shall be retained for such interval beyond the expiration date for the 

blood or blood component as necessary to facilitate the reporting of any 

unfavorable clinical reactions. You must retain individual product records no less 

than 10 years after the records of processing are completed or 6 months after the 

latest expiration date for the individual product, whichever is the later date. When 

there is no expiration date, records shall be retained indefinitely. (Emphasis added.) 

The regulations provide additional clarity, requiring the retention of records “for each 

donor,” “including a separate and complete record of initial and periodic examinations, tests, 

laboratory data, and interviews, etc.” as well as “record[s] which may be electronic of the donor’s 

consent for participation in the plasmapheresis program or for immunization.” § 640.72 (a)(2)-(3). 

Under these regulations, any data collected from donors as part of the plasmapheresis screening 

process is a part of the manufacturing record and subject to at least a ten-year retention period.3 

The BIPA’s requirements are fundamentally incompatible with these federal regulations. 

Under the BIPA, biometric identifiers and biometric information must be destroyed “when the 

initial purpose for collecting or obtaining such identifiers or information has been satisfied or 

within 3 years of the individual's last interaction with the private entity, whichever occurs first.” 

740 ILCS 14/15(a) (emphasis added). In other words, the alleged biometric data that federal law 

requires Defendants to maintain for a minimum of ten years would need to be destroyed within 

three years at the latest to comply with the BIPA. These two sets of requirements make compliance 

with both federal regulations and the BIPA impossible. Under the Supremacy Clause, this conflict 

3

 The records at issue are subject to even longer retention requirements under regulations promulgated by the 

European Medicines Agency (“EMA”). In compliance with the requirements set forth in directives 2002/98/EC and 

2005/61/EC, “facilities to which blood and blood components are delivered, including manufacturers, should retain 

traceability records for at least 30 years after the time of the donation.” Guideline on Plasma-Derived Medicinal 

Products, EMA/CHMP/BWP/706271/2010 (21 July 2011), available at: 

https://www.ema.europa.eu/en/documents/scientific-guideline/guideline-plasma-derived-medicinal-products_en.pdf 

(last accessed Dec. 17, 2021). The Guidelines further clarify that “a link from donation/donor to finished product 

should be maintained by the manufacturer of the plasma derived product for at least 30 years after the time of the 

donation.” Id. 

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between federal regulations and state legislation is resolved in favor of federal law, which preempts 

the BIPA’s requirements. Plaintiffs’ claims must be dismissed as a result. 

In addition, the BIPA’s requirements frustrate the purpose of federal regulations that 

specifically contemplate the use of “biometric[s]” in the donor screening process and promote 

“flexibility to accommodate advancing technology.” 80 Fed. Reg. 29842, 29869 (May 22, 2015). 

At present, finger-scan technology provides Defendants with an efficient and reliable method of 

verifying the identities of donors to ensure donor eligibility, as contemplated by federal law. As a 

result, biometrics provide an important safeguard against abuse in a system where donors have a 

financial incentive to donate more frequently than the law permits or in circumstances where they 

would be prohibited from doing so. Biometrics are thus a critical method of verifying the identity 

of the donor, the viability of the plasma and ultimately, the safety of the recipients of plasmaderived medicines. 

Subjecting the donor-identification and screening process to the BIPA’s requirements and 

its draconian damages provisions would discourage the use of this more efficient and reliable 

technology, despite the FDA contemplating the use of biometrics during the donor screening 

process and express commitment to “flexibility to accommodate advancing technology.” 80 Fed. 

Reg. 29869. The practical result is the reversion to a less reliable system that provides fewer 

safeguards and frustrates the purpose of the FDA’s extensive regulations aimed at ensuring the 

integrity, safety, and traceability of each plasma collection and the agency’s express intent of 

“mak[ing] the donor eligibility and testing requirements more consistent with current practices,” 

“better assur[ing] the safety of the nation’s blood supply” and providing “flexibility to 

accommodate advancing technology.” 80 Fed. Reg. 29842. 

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Indeed, at least one court which has considered this issue has proposed the adoption of an 

“alternative method of providing donor identity” as a solution to the conflict between the federal 

regulations’ endorsement of “biometric means” as a valid screening procedure and the BIPA’s 

requirements. See Crumpton v. Octapharma Plasma, Inc., 513 F. Supp. 3d 1006, 1014 (N.D. Ill. 

2021). Implicit in that court’s suggestion, however, is a recognition that the BIPA impedes the 

FDA’s intent of permitting biometrics in the donor screening process. The doctrine of conflict 

preemption bars Plaintiffs’ claims on this basis as well. Geier v. Am. Honda Motor Co., Inc., 529 

U.S. 861, 886 (2000) (finding preemption where a state law regarding airbag installation “would 

have stood as an obstacle to the gradual passive restraint phase-in that the federal regulation 

deliberately imposed”); New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 106 (2d 

Cir. 2010) (holding that federal law preempted a local statute which explicitly establishes a 

‘preference’ for certain wireless technology that interfered with Congress’s goal of facilitating the 

spread of new technologies and the growth of wireless telephone service.). 

Because the BIPA is both fundamentally incompatible with federal regulations and in 

conflict with the federal intent of promoting effective donor screening and safe, traceable plasma 

donations, Plaintiffs’ claims under the BIPA are preempted and must be dismissed. 

II. VAUGHAN FAILS TO STATE A CLAIM UNDER SECTION 15(b) 

Plaintiff Vaughan’s claim under Section 15(b) of the BIPA should be dismissed because, 

contrary to his allegations, Vaughan in fact received a written information regarding the collection 

of his fingerprints, and he consented to the collection in writing, consistent with the BIPA’s 

requirements. 

Though matters outside the pleadings generally may not be considered on a motion to 

dismiss, the Seventh Circuit has held that “[d]ocuments that a defendant attaches to a motion to 

dismiss are considered part of the pleadings if they are referred to in the plaintiffs[’] complaint and 

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are central to [their] claim.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 

(7th Cir. 1993) (admitting letters referred to in the complaint that established the parties’ 

contractual relationship); see also Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir. 

2009) (upholding district court’s consideration of documents attached to a motion to dismiss which 

were “central to plaintiffs’ case”). Though a “plaintiff is under no obligation to attach to her 

complaint documents upon which her action is based . . . a defendant may introduce certain 

pertinent documents if the plaintiff failed to do so.” Venture Assocs., 987 F.2d at 431. A document 

that goes to “the heart of the case” and the underlying basis for a plaintiff’s claim is appropriate to 

consider. Resnick v. Schwartz, No. 17 C 04944, 2018 U.S. Dist. LEXIS 149767, at *9 n.8 (N.D. 

Ill. Sep. 3, 2018) (Chang, J.) (permitting consideration of a defined benefit pension plan attached 

to defendant’s motion to dismiss that was “at the heart of [Plaintiff’s] case”); Pine Top Receivables 

of Ill., LLC v. Banco De Seguros Del Estado, No. 12 C 6357, 2013 U.S. Dist. LEXIS 28040, at *6 

(N.D. Ill. Feb. 25, 2013) (Aspen, J.) (permitting consideration of treaties and an assignment 

agreement that provided “the basis for plaintiff’s claim”). 

Here, Plaintiffs’ 15(b) claim is premised on the allegations that Defendants (1) failed to 

inform them in writing that their biometric information was being collected and the purpose of that 

collection; and (2) failed to obtain their written consent. In fact, Vaughan was provided a Consent 

Agreement for Automated Plasmapheresis (“Consent Agreement”), which specifically informed 

him that his fingerprints would be collected “as biometric authentication of [his] identity as part 

of the automatic screening process.” See Consent Agreement, ¶ 16, attached hereto as Exhibit A. 

Vaughan executed the Consent Agreement in the presence of a medical staff member serving as a 

witness on June 14, 2017, prior to using the finger-scanner; in so doing, he acknowledged that he 

“underst[ood] and [agreed]” to “provide [his] fingerprint as biometric authentication.” Id. The 

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Consent Agreement is unambiguous and affirmatively establishes that Vaughan knew he was 

providing potential biometric information during the donation screening process, understood the 

reason for it, and consented. His written, informed consent affirmatively defeats any alleged 

violation of Section 15(b) of the BIPA and his claim must be dismissed with prejudice as a result. 

III. THE ALLEGED BIOMETRIC INFORMATION IS EXEMPT FROM 

THE BIPA’S REQUIREMENTS 

Plaintiffs’ claims also fail because the alleged biometric information at issue is explicitly 

excluded from the BIPA’s requirements. The BIPA states that the “biometric identifiers” subject 

to the statute “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].” 740 ILCS 14/10 (emphasis added). In other words, alleged biometric identifiers fall 

outside the BIPA’s scope if they are “(1) . . . obtained from a patient in a health care setting; or (2) 

. . . collected, used, or stored in connection with healthcare treatment[.]”4 Vo v. VSP Retail Dev. 

Holding, Inc., 2020 U.S. Dist. LEXIS 53916, *4 (N.D. Ill. March 25, 2020) (dismissing plaintiff’s 

BIPA claims pursuant to this statutory exemption). Here, the alleged biometric identifiers at issue 

are exempt under both prongs, as well as under a separate exemption excluding from the BIPA’s 

scope all “image[s]....used to...validate scientific testing or screening.” 740 ILCS 14/10. 

A. BIPA exempts information collected from a patient in a health care setting 

First, the alleged biometric identifiers at issue are excluded from the BIPA’s scope under 

the exception for information obtained from patients in a health care setting. 

4

 Defendants do not contend that they are covered entities under HIPAA or that the alleged biometric identifiers 

at issue were “collected, used or stored” for “operations under HIPAA.” Rather, Defendants contend that the alleged 

biometric identifiers at issue here are excluded from the BIPA’s scope based on the two exceptions cited above for 

information obtained from a patient in a health care setting or collected, used, or stored in connection with healthcare 

treatment. 

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The BIPA does not define “patient” or “healthcare setting,” but the plain language of those 

terms suggests a clear intent to make an exception for individuals undergoing medical procedures. 

Plaintiffs donating at Defendants’ locations and undergoing plasmapheresis fall within this 

exception for purposes of the BIPA. For instance, to donate their plasma, donors must be screened 

and examined by trained personnel who review their medical history, assess their total plasma 

protein levels, and conduct a “physical examination” for “medical conditions that would place 

the donor at risk from plasmapheresis.” See 21 CFR § 630.15(b) (emphasis added). If a 

determination is made that plasmapheresis poses a risk to the donor, the donor is deferred from 

donating. § 630.15(b)(1); see also § 630.10 (“A donor is not eligible if the donor is not in good 

health or if you identify any factor(s) that may cause the donation to adversely affect . . . (1) The 

health of the donor”). In addition, trained medical specialists “explain the risks and hazards of 

the procedure to the donor, includ[ing] the risks of a hemolytic transfusion reaction if the donor 

is given the cells of another donor and the risks involved if the donor is immunized.” 

§ 630.15(b)(2)(iii). In short, though other parties are the ultimate beneficiaries of plasmapheresis, 

conducting a physical evaluation and evaluating donors’ health is an integral part of that process 

and intended for the donors’ benefit to ensure their continued health. 

 Plaintiffs will undoubtedly respond by pointing to Marsh v. CSL Plasma, in which the 

court held that “a person who sells plasma to CSL is not a ‘patient’ in a ‘healthcare setting.’” 

Marsh v. CSL Plasma Inc., 503 F. Supp. 3d 677, 683 (N.D. Ill. 2020). In so holding, the court 

concluded that “the only thing that CSL is providing to the seller is money.” Id. That is not the 

case here. As outlined above, per federal regulations, donors at Defendants’ facilities receive a 

medical screening and health evaluation performed for their benefit to ensure their continued 

health. Through that screening process, donors receive critical information about their own health 

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that they might not have otherwise. For instance, a donor who is deferred from donating based on 

reactive test results is notified of those results and “[w]here appropriate,” provided “information 

concerning medical follow-up and counseling.” 21 C.F.R. § 630.40. Donors may very well have 

not received that health information without visiting Defendants’ facilities and undergoing the 

plasmapheresis screening process. 

That donors receive compensation for their time does not negate that they receive a medical 

evaluation during the plasmapheresis process and information about their health in order to ensure 

their continued well-being. This is not, as the Marsh court suggested, a bare financial transaction, 

as if the donor arrives at the center with a bag of his or her plasma in hand and exchanges it for 

money. Rather, the donor undergoes a sensitive, and highly regulated, medical procedure that 

accounts for the health and safety of both the donor and the ultimate recipient of plasma-derived 

treatment.5 

Vo v. VSP Retail Dev. Holding, Inc. is also instructive. There, an eyewear company used 

Virtual Try-On software that collected information about customers’ facial geometry to help fit 

them for eyewear. Id. at *2. The plaintiff used the Virtual Try-On software while visiting the 

Company’s website but never requested or received an eye exam and never provided or received a 

prescription. Id. at *5-6. The court nevertheless held that because the company sells prescription 

eyewear, which are Class I medical devices under federal regulations, the company “provides 

health care”; further, because the Virtual Try-On software “facilitates this health care service,” the 

biometric information allegedly collected from customers was “collected from a patient in a health 

5

 Marsh is also distinguishable in that the court there found that the “plaintiffs had the better of the 

argument” after the defendant took the dubious position that a “patient” is secondarily defined as “one that 

is acted upon.” 503 F. Supp. 3d at 684. The court unequivocally rejected the argument, remarking that the 

secondary definition was attributed to a philosopher in a 1950 book on metaphysics and is a “far, far cry 

from the plain meaning of the word.” Id.

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care setting” and exempted by the statute. Id. That the plaintiff “never requested an eye exam, 

never received an eye exam, never provided Defendant with a prescription for corrective lenses, 

never received any such prescription, and never requested or received any sort of medical treatment 

or advice” did not change the court’s analysis. Id. at *5-6. The court held that “even if [plaintiff] 

did not proceed past the Virtual Try-On software to the eye exam and prescription stage, the initial 

evaluation of a prospective patient still constitutes a health care service.” Id. at *6 (emphasis 

added). This case is even clearer. Unlike the plaintiff in Vo, Plaintiffs here did undergo a medical 

evaluation, and did so at a federally regulated donation facility in connection with a medical 

procedure to collect and subsequently separate and extract plasma from other of their blood 

components. To the extent prospective customers browsing an eyeglass company website, who 

provide no medical information and received no medical evaluation constitute “patients in a health 

care setting,” donors who are examined and evaluated by health care professionals at Defendants’ 

facilities in preparation for plasmapheresis donation undoubtedly do too. 

B. The BIPA exempts “information collected, used or stored for health care 

treatment” 

Second, the alleged biometric data at issue is also excluded from BIPA’s scope under the 

exception for “information collected, used or stored for health care treatment.” See 740 ILCS 

14/10. Though “health care treatment,” like “health care setting,” is not defined by the BIPA, 

there can be no dispute that the supposed biometric identifiers collected here which Plaintiffs 

allege were used to “identif[y] and authenticat[e]” donors and their donations (see Am. Compl. ¶ 

26) were collected in order to ensure the integrity of the plasma and for the purpose of providing 

healthcare treatment to those in need.6 Indeed, Defendants’ mission, and the very purpose of 

6

 See generally, Plasma: A source of life, available at: https://www.grifolsplasma.com/en/aboutplasma-donation/plasma-a-source-of-life (last accessed Dec. 9, 2021) (explaining the benefits of plasma 

and its applications for various healthcare treatments). 

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13 

plasma donation and collection in the first place, is to provide health treatment for individuals 

suffering from illnesses caused by the lack of essential proteins and antibodies found in blood 

plasma.7 Because these proteins cannot be synthetically created or replicated in a lab, plasma 

donations provide an invaluable source of treatment for patients who depend on plasma-based 

medications for lifelong treatment of their illnesses.8 Any biometric identifiers that Defendants 

allegedly collected were in furtherance of providing those treatments by ensuring the safe and 

effective collection of plasma and thus fit squarely in the BIPA’s exception. 

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

29, 2019) (attached hereto as Exhibit B) offers support for this conclusion. In Diaz, a registered 

nurse scanned her finger at a medical-supply station to access prescription drugs for her patient. 

The court held that the alleged biometric data generated from her finger scan fell within the 

“health care” exception of the BIPA and dismissed plaintiff’s claims. That the plaintiff was not 

the beneficiary of the treatment had no impact on the court’s analysis. Nor should it here. Like 

the nurse in Diaz, Plaintiffs’ alleged biometric information was collected for the purpose of 

providing healthcare treatment and is similarly exempted under the plain language of the statute. 

Taken together, these two exemptions of not only patient information, but also information 

collected in connection with healthcare treatment more generally, evidence a clear legislative 

intent not to infringe on the provision of important healthcare treatments or otherwise compromise 

the ability to verify individuals’ identities in that setting. Consistent with both the plain language 

of the statute, and the drafters’ clear intent to exclude data collected in the healthcare context, 

Plaintiffs’ claims fail. 

7

 Id. 

8

 Id. 

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14 

C. The BIPA exempts “image[s] used to . . . validate scientific testing or 

screening” 

In addition to exempting information related to healthcare, the BIPA also excludes from 

its definition of biometric identifiers “image[s] used to . . . validate scientific testing or screening.” 

740 ILCS 14/10. The alleged finger scans at issue fall within this exemption as well. 

Donors’ finger scans, which Defendants allegedly used to create a donor “template[s]” for 

identification and authentication purposes and to track their donations going forward, constitute 

an integral first step in the screening and testing process used to evaluate donor eligibility and 

ensure safe and viable plasma collection. See Am. Compl. ¶¶ 25, 26, 28. Specifically, by using 

finger-scan technology, Defendants are able to quickly and accurately screen donors to confirm 

that they meet the requirements to donate, including, for instance, that they are in good health 

pursuant to the FDA’s regulations and that they have not donated an impermissible number of 

times.9 Indeed, federal regulations require this initial screening and testing process to confirm that 

donors are in “good health and free from transfusion-transmitted infections” prior to the collection 

of blood or blood components, including plasma. 21 C.F.R § 630.10; see also 21 C.F.R § 640.65 

(“A donor identification system shall be established that positively identifies each donor and 

relates such donor directly to his blood and its components as well as to his accumulated records 

and laboratory data.”). 

 Defendants’ alleged use of the finger-scanner technology served that purpose by validating 

the donors’ identity and donor history and ensuring the completion of the requisite testing and 

health screen. Any alleged biometric identifiers collected as part of that screening process are 

therefore excluded from the definition of biometric identifiers under the statute. As such, Plaintiffs’ 

claims necessarily must fail. 

9

 21 CFR § 630.10 outlines the limitations on the frequency of plasma donation. 

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15 

IV. PLAINTIFFS FAIL TO SUFFICIENTLY PLEAD A 

VIOLATION BY EACH DEFENDANT 

Plaintiffs’ Amended Complaint also fails to sufficiently allege claims against each 

Defendant. Under Fed. R. Civ. P. 8, “[a] complaint must set forth what each person (or 

corporation) is accused of doing.” Chamberlain Grp., Inc v. Techtronic Indus. N. Am., No. 16 CV 

06113, 2017 U.S. Dist. LEXIS 157301, at *7 (N.D. Ill. Sep. 26, 2017) (citing Bank of Am., N.A. v. 

Knight, 725 F.3d 815, 818 (7th Cir. 2013)). “Details about who did what are not merely nice-tohave features of an otherwise-valid complaint; to pass muster under Rule 8 of the Federal Rules 

of Civil Procedure, a claim to relief must include such particulars. . . .” Id. at *7-8. 

Here, Plaintiffs fail to allege any facts specific to any of the three Defendants. They do not 

allege which plasma donation center(s) they visited, which Defendant operated the facilit(ies) 

where they donated, or the dates of any of their donations. To the contrary, Plaintiffs allege only 

that they “donated plasma at one of the Defendants’ Illinois-based plasma donation centers.” Am. 

Compl. ¶¶ 2, 24. 

Indeed, Plaintiffs make no attempt to distinguish among the Defendants, referring to them 

only generically as “Defendants” throughout the Complaint. The only reference to Defendants 

individually is in allegations regarding their places of business. Id. ¶¶ 3, 4. As the case law makes 

clear, details regarding where and when Plaintiffs allegedly donated are not simply “nice-to-have,” 

but required under the Federal Rules to give Defendants sufficient notice of the claims against 

them. See Chamberlain Grp., 2017 U.S. Dist. LEXIS 157301, at *11 (dismissing claims where 

the “complaint tells us nothing about the individual actions of, or the relationships between, the 

various TTI defendants”). Plaintiffs’ allegations against each Defendant are woefully deficient in 

this regard and should be dismissed on that basis as well. 

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16 

V. PLAINTIFFS’ CLAIMS THAT DEFENDANTS RECKLESSLY 

VIOLATED THE BIPA ARE UNSUPPORTED AND 

INSUFFICIENTLY PLED 

Finally, Plaintiffs’ claims should be dismissed to the extent they seek to recover damages 

for reckless violations of the BIPA. Although not defined by the BIPA, recklessness under Illinois 

common law is akin to willful and wanton conduct or “a course of action . . . which, if not 

intentional, shows an utter indifference to or conscious disregard for . . . the safety of others.” 

Landers v. School Dist., 66 Ill. App. 3d 78, 82 (5th Dist. 1978) (citations omitted). Here, Plaintiffs’ 

complaint contains no allegations that Defendants acted recklessly. To the contrary, Plaintiffs 

allege a bare statutory violation that makes no mention or allegations of reckless conduct, but then 

pray for $5,000 in relief for each reckless violation. Absent any “substantive details regarding 

whether the allegations were reckless,” Plaintiffs’ claims for recklessness must be dismissed. See 

Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279, 286 (N.D. Ill. 2019). 

Federal and state courts across Illinois have repeatedly dismissed allegations of reckless or 

intentional conduct under the BIPA in cases where plaintiffs have similarly sought enhanced 

damages based on reckless conduct but failed to allege any facts in support. E.g., Namuwonge, 418 

F. Supp. 3d at 286 (finding plaintiff’s “abstract statements regarding damages . . . insufficient for 

the Court to infer that Kronos acted recklessly or intentionally” and dismissing those claims on 

that basis); Rogers v. CSX Intermodal Terminals, 409 F. Supp. 3d 612, 619 (N.D. Ill. 2019) 

(general allegations that defendant’s violations were “knowing and willful,” were “insufficient to 

allow us to infer that [defendant] acted intentionally or recklessly and does nothing to distinguish 

this case from every possible BIPA case where the defendant is alleged to have failed to meet the 

strictures of Section 15.”); Mosby v. The Ingalls Mem’l Hosp. UCM Cmty. Health & Hosp. Div. 

Inc., No. 2018 CH 05031, Tr. of Hr’g at 69, 72 (Cir. Ct. Cook. Cty. Jan. 13, 2020) (dismissing a

BIPA claim for reckless/intentional damages that was unsupported by facts); Thurman v. 

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17 

Northshore Univ. Health Sys., No. 2018 CH 3544, 2019 WL 7249205, at *12 (Cir. Ct. Cook Cty.

Dec. 12, 2019) (striking conclusory allegation that BIPA defendant’s actions were “willful and/or

reckless”); Navarette v. Josam Acquisitions, No. 2019 CH 14368, Tr. of Hr’g at 3:11–22 (Cir. Ct.

Cook Cty. Mar. 29, 2021) (allegations of recklessness and intentionality were “insufficient” to 

allow plaintiff to “proceed with request for enhanced damages”); Webster v. Windsor Estates 

Nursing and Rehab, No. 2019 CH 11441, Tr. of Hr’g at 33-34 (Cir. Ct. Cook Cty. Nov. 11, 2020) 

(dismissing allegations regarding reckless and intentional conduct that lacked factual support) 

(excerpts of transcripts attached hereto as composite Exhibit C). The outcome should be no 

different here, where Plaintiffs’ allegations of recklessness amount to a single unsupported 

sentence in their prayer for relief. 

CONCLUSION 

For all the reasons stated above, Defendants respectfully request that the Court grant this 

Motion and dismiss Plaintiffs’ Amended Class Action Complaint with prejudice. 

Dated: December 17, 2021 

By: 

Respectfully submitted, 

BIOMAT USA, INC., TALECRIS PLASMA 

RESOURCES, INC., and INTERSTATE 

BLOOD BANK, INC., 

 /s/ Neil H. Dishman 

 One of Their Attorneys

Jason A. Selvey 

Neil H. Dishman 

Julia S. Wolf 

Jackson Lewis P.C. 

150 North Michigan Avenue, Suite 2500 

Chicago, Illlinois 60601 

Tel.: 312.787.4949 

Neil.Dishman@jacksonlewis.com 

Jason.Selvey@jacksonlewis.com 

Julia.Wolf@jacksonlewis.com 

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18 

CERTIFICATE OF SERVICE 

I, Neil H. Dishman, an attorney, certify that on December 17, 2021, I caused a true and 

correct copy of the attached Defendants’ Memorandum of Law in Support of Their Motion to 

Dismiss Plaintiffs’ Class Action Complaint to be served on the following counsel of record by 

filing with the Court’s CM/ECF filing system: 

David A. Fish 

Mara Baltabols 

The FISH LAW FIRM PC 

200 East Fifth Avenue, Suite 123 

Naperville, Illinois 60563 

(630) 355-7590 

dfish@fishlawfirm.com 

mara@fishlawfirm.com 

/s/ Neil H. Dishman 

4853-7702-2978, v. 6

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EXHIBIT A 

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CONFIDENTIAL

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CONFIDENTIAL

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CONFIDENTIAL

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CONFIDENTIAL

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CONFIDENTIAL

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CONFIDENTIAL

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CONFIDENTIAL

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EXHIBIT B 

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Hearing - 8/29/2019

Yesenia Diaz vs. Silver Cross Hospital and Medical Centers

Worldwide Litigation Services

(312) 528-9111 | info@worldwidelit.com Page 1 (1)

 1 IN THE CIRCUIT COURT

 2 OF THE TWELFTH JUDICIAL CIRCUIT

 3 WILL COUNTY, ILLINOIS

 4

 5 YESENIA DIAZ, )

 6 Plaintiff, )

 7 -vs- ) Case No.

 8 SILVER CROSS HOSPITAL AND ) 2018 CH 001327

 9 MEDICAL CENTERS, )

 10 Defendant. )

 11

 12

 13 TRANSCRIPT OF PROCEEDINGS had in the

 14 above-entitled cause in Room A201 of the Will

 15 County Court Annex, 57 North Ottawa Street,

 16 Joliet, Illinois, on Thursday, August 29, 2019,

 17 commencing at 10:14 a.m.

 18

 19

 20

 21 BEFORE: HONORABLE JUDGE RAYMOND E. ROSSI.

 22

 23

 24

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Hearing - 8/29/2019

Yesenia Diaz vs. Silver Cross Hospital and Medical Centers

Worldwide Litigation Services

(312) 528-9111 | info@worldwidelit.com Page 2 (2)

 1 APPEARANCES:

 2

 STEPHAN ZOURAS, LLP

 3 BY: JAMES B. ZOURAS, ESQUIRE

 jzouras@stephanzouras.com

 4 BY: HALEY R. JENKINS, ESQUIRE

 hjenkins@stephanzouras.com

 5 100 North Riverside Plaza, Suite 2150

 Chicago, Illinois 60606

 6 312-233-1550

 7 appeared on behalf of the Plaintiff

 Yesenia Diaz

 8

 9

 SHOOK, HARDY & BACON L.L.P.

 10 BY: MELISSA A. SIEBERT, ESQUIRE

 masiebert@shb.com

 11 BY: ERIN BOLAN HINES, ESQUIRE

 ehines@shb.com

 12 111 South Wacker Drive, Suite 4700

 Chicago, Illinois 60606

 13 312-704-7700

 14 appeared on behalf of the Defendant

 Silver Cross Hospital and Medical

 15 Centers

 16

 17

 18

 19

 20

 21

 STENOGRAPHICALLY REPORTED BY:

 22 ROSANNE M. NUZZO, CSR, RMR, CRR

 CSR License No. 84-1388

 23

 24

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Page 3

 1 THE COURT: Anybody on the 9:00 call that

 2 hasn't been heard?

 3 (No audible response).

 4 THE COURT: All right. Then 37, 18 CH 1327.

 5 Good morning.

 6 MS. SIEBERT: Good morning, your Honor.

 7 THE COURT: Hi.

 8 MS. HINES: Hi.

 9 MR. ZOURAS: Good morning, your Honor.

10 Jim Zouras for the Plaintiff.

11 MS. JENKINS: Good morning, your Honor.

12 Haley Jenkins on behalf of the

13 Plaintiff.

14 MS. SIEBERT: Good morning, your Honor.

15 Melissa Siebert and Erin Hines on

16 behalf of Silver Cross Hospital.

17 THE COURT: Okay. I've read through it, but

18 if you want to summarize or supplement briefly,

19 have at it.

20 Movant?

21 MS. SIEBERT: That's us, your Honor.

22 Your Honor, we're here today, as you

23 know, on our motions, the combined 2-615 and 2-619

24 motion.

Page 4

 1 Plaintiff, a registered nurse who

 2 worked at the hospital, has filed a lawsuit

 3 contending that the hospital's use of her finger

 4 scan violated Illinois' Biometric Information

 5 Privacy Act, also known as BIPA. BIPA provides

 6 protections for certain biometric information.

 7 Although BIPA's legislative history is

 8 sparse, the Illinois legislature clearly indicated

 9 that it intended to provide exemptions for

10 hospitals such as Silver Cross. That legislative

11 history is Exhibit 1 to our motion to dismiss.

12 Consistent with the legislative

13 history, BIPA contains exemptions related to

14 hospitals. Specifically, BIPA excludes from the

15 definition of "biometric information"

16 "information collected, used, or stored for health

17 care treatment, payment, or operations." That's

18 in BIPA Section 10.

19 The health -- that information -- that

20 definition is important because the definition of

21 "health care treatment, payment, or operations" is

22 as defined in HIPAA. So this is the second HIPAA

23 motion involving Silver Cross today that's before

24 your Honor, but it's a different type of motion.

Page 5

 1 This is about whether BIPA's HIPAA exemption

 2 excludes the information collected here. And as

 3 you can -- as you read in our motion, we contend

 4 that it clearly falls within BIPA's HIPAA

 5 exemption because Plaintiff's finger scan is being

 6 collected, stored, and used for health care

 7 treatment, payment, and operations.

 8 The parties have filed several

 9 pleadings, including yesterday's notice of a

10 supplemental authority that are directed to the

11 2 -- primarily to the hospital's 2-615 motion;

12 actually, only to the hospital's 2-615 motion.

13 With the Court's permission, we want to

14 address the 2-619 portion of our motion first, the

15 HIPAA BIPA exemption, because if this Court

16 decides that the hospital and the finger scans

17 fall within BIPA's HIPAA exemption, we do not need

18 to proceed any further, and this case should be

19 dismissed outright.

20 To our knowledge, this case is a matter

21 of first impression as to the HIPAA BIPA -- the

22 BIPA HIPAA exemption applicability to hospitals.

23 This is an important distinction because of the

24 Illinois Assembly's expressed acknowledgment that

Hearing - 8/29/2019

Yesenia Diaz vs. Silver Cross Hospital and Medical Centers

Worldwide Litigation Services

(312) 528-9111 | info@worldwidelit.com Page 3 (3 - 6)

Page 6

 1 hospitals were one of the few entities where

 2 exemptions would be placed within BIPA, and they

 3 were.

 4 So Ms. Hines is going to address any

 5 questions that the Court may have about our 2-619

 6 portion of our motion with respect to the HIPAA

 7 BIPA exemption. And we're happy to take your

 8 Honor through why treatment, payment, and

 9 operations under HIPAA is applicable here with the

10 BIPA exemption.

11 THE COURT: All right. Thank you.

12 MS. HINES: Would you like to hear about the

13 treatment, payment, and operations? We're

14 primarily referring to the affidavit that is

15 attached.

16 THE COURT: For dismissal under 2-619?

17 MS. SIEBERT: Yes.

18 THE COURT: All right. Briefly.

19 MS. HINES: Okay, your Honor.

20 As Ms. Siebert just stated, BIPA

21 excludes "information collected, used," and

22 "stored for health care treatment, payment, or

23 operations" under HIPAA. Those are specifically

24 defined terms under HIPAA. "Treatment" is

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Page 7

 1 treatment or management of healthcare; "payments"

 2 are payments for healthcare; and "health care

 3 operations" includes several things, but what's

 4 relevant here is conducting or arranging for

 5 auditing. These are definitions found under HIPAA

 6 45 CFR 164.501.

 7 Silver Cross is a healthcare provider

 8 and falls under HIPAA. Plaintiff is a registered

 9 nurse. She has scanned her finger in medical

10 supply stations at Silver Cross Hospital in order

11 to access prescription drug medication.

12 Plaintiff's finger scan data is the information

13 that was collected, used, and stored for

14 treatment, payment, and operations under HIPAA.

15 And you asked why does her finger scan

16 fall under operations? We'll start there. Silver

17 Cross is required, as laid out in Mr. Butler's

18 affidavit which is Exhibit 2 to the motion to

19 dismiss to have an audit trail of the prescription

20 drugs it dispenses to its patients.

21 When a registered nurse puts her finger

22 scan on the med station to access that, those

23 prescription drugs, it's because she's a

24 registered nurse, but it's also because it's

Page 8

 1 tracking that she's the registered nurse she

 2 claims to be. And that is what falls under

 3 HIPAA's -- the auditing that is required under

 4 "operations." And this information alone under

 5 this definition is enough to qualify as exempting

 6 her finger scan data from BIPA, and this case can

 7 be dismissed based on that.

 8 But we have two more definitions. We

 9 have payment. When a registered nurse puts her

10 finger scan on the medical supply station, it

11 tracks the prescription drugs that she is taking

12 for that patient to the billing module, and that

13 is "payment" under the HIPAA definition which is

14 excluded under BIPA. Again, the information under

15 this term alone is a basis for dismissal.

16 We also have "treatment." When the

17 registered nurse scans her finger on a medical

18 supply station, it records who she is giving --

19 the patient that is getting the prescription

20 medication, the dosage, and when they're getting

21 that medication. And, again, it's information --

22 the information under this definition is enough to

23 exclude the information from BIPA.

24 For these reasons, your Honor, we ask

Page 9

 1 that the Court dismiss the Complaint outright

 2 pursuant to 2-619, which is supported by the

 3 affidavit of Mr. Butler that is undisputed that's

 4 attached to the motion to dismiss, that this

 5 information collected from the Plaintiff's finger

 6 scans falls under BIPA's HIPAA exemption.

 7 THE COURT: Okay. In your brief, you had

 8 cited five independent reasons for dismissal. Do

 9 you still support -- do you still stand by that?

10 MS. SIEBERT: We do. We do. But we feel it's

11 appropriate under 619, given that this is an

12 affirmative matter, that this is an exemption --

13 THE COURT: Yes.

14 MS. SIEBERT: -- an exemption where we have

15 submitted an affidavit that is uncontroverted,

16 that it can be decided on that basis alone.

17 We are -- we've all filed extensive

18 pleadings here which I know your Honor has read.

19 We are happy to address any questions you have

20 about our 615 basis or our supplemental authority,

21 but that all goes to the 615 portion of our motion

22 which we stand on here.

23 THE COURT: Okay. Hi.

24 MR. ZOURAS: Good morning, your Honor.

Hearing - 8/29/2019

Yesenia Diaz vs. Silver Cross Hospital and Medical Centers

Worldwide Litigation Services

(312) 528-9111 | info@worldwidelit.com Page 4 (7 - 10)

Page 10

 1 THE COURT: Good morning.

 2 Response?

 3 MR. ZOURAS: With respect to the motion to

 4 supplement, very quickly, your Honor, that was

 5 just submitted late last night. We're obviously

 6 prepared to fully argue the motion. We would just

 7 like an opportunity to address that supplemental

 8 filing in writing if the Court is going to

 9 entertain it.

10 THE COURT: Wait a minute.

11 MR. ZOURAS: We can do that.

12 THE COURT: Right. By the way, this is up for

13 hearing today.

14 MR. ZOURAS: Correct, and we're prepared to

15 argue.

16 THE COURT: All right. Well, what -- no

17 offense, but what good is a supplemental brief

18 going to have after argument today and a ruling

19 today?

20 MR. ZOURAS: Fair enough, your Honor.

21 They filed a supplemental pleading to

22 brief it last night. That wasn't our decision.

23 THE COURT: Okay. Well, if it's any

24 consolation, I haven't seen their supplemental

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Page 11

 1 brief.

 2 MR. ZOURAS: Okay. Fair enough. Fair enough,

 3 Judge.

 4 With respect to the fully-briefed

 5 matter before the Court --

 6 (Laughter.)

 7 MR. ZOURAS: -- what the Defendants want the

 8 Court to do is to take a limited exemption, your

 9 Honor, which has to do with patients' biometrics,

10 not employees' biometrics, and expand it to

11 include biometric collection for any caregiver

12 touching patient care, so they're talking about

13 not just nurses but anybody in a hospital

14 environment or a healthcare environment for whom

15 they collect biometrics.

16 This argument is essentially identical

17 to the one that Judge Loftus just a few weeks ago

18 rejected in a comprehensive oral ruling. We

19 recognize that's not binding, but it is directly

20 on point. And after fully vetting these

21 arguments, she not only rejected the arguments,

22 but she decided that the argument was actually, in

23 her words, nonsensical. There's no reason to

24 deviate from that ruling here, your Honor.

Page 12

 1 The essential facts are that we have an

 2 employee of Silver Cross here. As a condition of

 3 employment, she has to disclose and produce for

 4 collection her biometric identifiers in order to

 5 access certain machines, essentially, certain

 6 devices. Now, the efficiencies and the cost

 7 savings are the reasons for that to be done.

 8 The Biometric Information Privacy Act

 9 has been on the books for eleven years now. And

10 as the legislature addressed and as the Supreme

11 Court has now addressed, this was done to address

12 a very serious need for protections of biometric

13 information.

14 The requirements are very easy to

15 follow. They're very easy to learn. Before you

16 collect biometric information in any context, you

17 need a written consent. You need a written

18 consent before disseminating to third parties.

19 You need a written release. You need to establish

20 a public retention and destruction schedule.

21 Here, we have the Defendant that did

22 none of that.

23 The default rule under BIPA, your

24 Honor, is that everybody is entitled to this

Page 13

 1 protection. There are a couple of exemptions, and

 2 they are all-encompassing. For example, the

 3 financial institution exemption, all financial

 4 institutions are basically shielded from having to

 5 comply; the same thing for the government.

 6 Hospitals are not one of them, though.

 7 There are -- there is no all-encompassing

 8 exemption for hospitals, as the Defendant is

 9 apparently suggesting. And that is why the

10 language they are citing, your Honor, is not from

11 the exemptions. It's not in the part of the

12 statute where they list the exemptions.

13 It's from the part of the statute where

14 they define what biometrics is at all, and they

15 define biometric identifiers in a very specific

16 way. They exclude from the definition of

17 biometric identifiers, essentially, information

18 collected under HIPAA.

19 HIPAA is a statute designed to protect

20 patient information, your Honor, and that is why

21 they excluded BIPA from anything that was covered

22 by HIPAA patient-protected data. Why? It's

23 already protected by HIPAA. There are already

24 stern penalties, stern procedures in place to

Hearing - 8/29/2019

Yesenia Diaz vs. Silver Cross Hospital and Medical Centers

Worldwide Litigation Services

(312) 528-9111 | info@worldwidelit.com Page 5 (11 - 14)

Page 14

 1 protect patient biometrics, not to mention the

 2 practical effect of perhaps having to get a

 3 consent from a patient before treating them.

 4 I think the legislature was clearly concerned with

 5 that.

 6 So what BIPA does under the definition,

 7 not an exemption, is exclude information captured

 8 from a patient. And there are specific examples;

 9 diagnostic testing, they refer to different types

10 of tests, x-rays, erosion process, and so forth.

11 So the entire focus of this, this definition, what

12 is excluded has to do with patients, and that is

13 something that hasn't been addressed.

14 And there isn't also any mention of

15 what possible -- and this is a glaring

16 exclusion -- what possible policy could there be

17 that the legislature had in mind to say that

18 employees of a hospital like the plaintiff

19 shouldn't have the protections under this very

20 important statute, as Judge Loftus found.

21 And so if we look at this in its proper

22 context on what a biometric identifier is,

23 clearly, this is not the situation contemplated by

24 the HIPAA -- what we're calling the exclusion for

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Page 15

 1 HIPAA information which, again, has to do with

 2 patients' information, not employee information,

 3 your Honor.

 4 We're happy to just address any

 5 additional questions.

 6 THE COURT: Yeah. A HIPAA -- a typical HIPAA

 7 order would allow for production/reproduction of

 8 medical records. There's really nothing

 9 earth-shattering there.

10 MR. ZOURAS: Right.

11 THE COURT: But those medical records are

12 sometimes, you know, not just generated but are

13 created and interpreted by medical personnel.

14 MR. ZOURAS: Um-hum, about a patient.

15 THE COURT: About a patient, yes.

16 MR. ZOURAS: Right.

17 THE COURT: But, nevertheless, it's not like

18 the medical personnel are strangers to the

19 process.

20 MR. ZOURAS: Um-hum. Um-hum. But the

21 information is the patient's information, and that

22 is exactly the point. It's the patient's data.

23 It's the patient's records, the patient's

24 information, the patient's testing --

Page 16

 1 THE COURT: Well --

 2 MR. ZOURAS: -- the patient's everything.

 3 THE COURT: All right. Let me give one other

 4 example.

 5 MR. ZOURAS: Um-hum.

 6 THE COURT: Counsel, I'm sure -- I can tell

 7 you know --

 8 MR. ZOURAS: Well, let's not be sure.

 9 THE COURT: That's all right. We're on the

10 record.

11 Well, in typical medical litigation --

12 MR. ZOURAS: Right.

13 THE COURT: -- there is (f)(3)s that come into

14 play.

15 MR. ZOURAS: Um-hum.

16 THE WITNESS: And for, let's say, a medical

17 expert who is identified as a 213(f)(3) witness,

18 if he has created publications, books, articles,

19 whatnot --

20 MR. ZOURAS: Um-hum.

21 THE COURT: -- those are produced, and I

22 believe they are subject to a HIPAA that may be in

23 place; and yet, yes, those relate to patients, but

24 they are created and produced by a third-party --

Page 17

 1 in fact, not even an employee; a third-party,

 2 well, consultant.

 3 MR. ZOURAS: Um-hum.

 4 MS. SIEBERT: Your Honor, that is why it's so

 5 important to read that exemption for Section 10 in

 6 its entirety. And what we're saying is, this is

 7 an exemption because it's excluding an entire

 8 class of information from the definition of what's

 9 protected under BIPA.

10 What that definition actually says is:

11 "...information captured from a patient in a

12 health care setting or information collected,

13 used, or stored for health care treatment, payment

14 or operations..."

15 We are not asserting that this is

16 information captured from a patient in a

17 healthcare setting. That's the PHI that Plaintiff

18 is referencing and relying on.

19 What we are saying is what your Honor

20 is saying. This is information collected, used,

21 and stored for our operations; for example, the

22 required audit, which is an abuse audit as well as

23 a prescription trail audit that Silver Cross is

24 required to keep as a matter of licensing and law,

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Page 18

 1 as stated in the affidavit that we provided to

 2 you.

 3 So taking your analogy to its

 4 conclusion, we are contending that this is

 5 information collected, used, or stored under that

 6 portion of BIPA which is not direct patient

 7 information or any of the types of x-rays or other

 8 things that are excluded from a BIPA definition of

 9 "biometric information" on the grounds that

10 Plaintiff's counsel envisions.

11 MR. ZOURAS: We have to look -- and I have a

12 copy of the definition they're referring to, your

13 Honor, right here, and it's not in the exemptions.

14 The exemptions is in 740 ILCS 14/25. This is the

15 definition of what a biometric identifier is under

16 740 ILCS 14/10.

17 We're not stopping the Defendant -- we

18 have no issue with the Defendant conducting

19 audits, your Honor. That's perfectly appropriate.

20 But if they are going to use biometric information

21 for any reason, they have to comply with BIPA

22 unless it involves patient information. That is

23 the all-encompassing definition of "biometric

24 identifiers" as found in this definition. By

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Page 19

 1 default, everyone is entitled to protection unless

 2 there is a specific exemption.

 3 And with respect to this definition, it

 4 has to do with information captured from a patient

 5 in a healthcare setting or information collected,

 6 used, or stored for healthcare treatment, payment

 7 or operations under -- and this is very

 8 important -- under HIPAA.

 9 And then they go on to talk about other

10 information which only is collected by -- or from

11 patients. So by looking at the definition here in

12 its entirety in its context, clearly as found by

13 another court, your Honor, this is something

14 speaking purely to patient information, not

15 employee information, not employee biometrics.

16 THE COURT: Well, BIPA exempts, quote,

17 "information collected, used, or stored for health

18 care treatment," unquote, under HIPAA.

19 MR. ZOURAS: Under HIPAA.

20 What they're describing is a situation

21 where it is not under HIPAA; that that's the

22 point, that is what they are excluding. It's not

23 under HIPAA. HIPAA governs --

24 THE COURT: Is that true?

Page 20

 1 MS. SIEBERT: No. The definition that we read

 2 to you is "treatment, payment, and operations,"

 3 commonly known as TPO. Those are from HIPAA.

 4 "Operations" has no reference to

 5 patients -- to patient information. That clause

 6 as read -- as stated in our brief and as read by

 7 Ms. Hines relates to a hospital's auditing trail,

 8 including for abuse and control.

 9 And as Mr. Barley's affidavit

10 attests --

11 MR. ZOURAS: Butler.

12 MS. SIEBERT: -- Butler -- that's exactly what

13 was -- what the information was used for here,

14 which we're required to do under other laws.

15 MR. ZOURAS: The purpose of HIPAA, which is

16 what we're talking about, is to protect patient

17 data. That is why this is referenced here. It is

18 a patient-focused statute. If --

19 THE COURT: All right. I'm sorry. I don't

20 mean to cut you off.

21 MR. ZOURAS: No. I -- if we have it their

22 way, Judge, the evil that we are attempting to

23 protect here is -- it's going to continue to

24 exist; and that is, any employee at a hospital who

Page 21

 1 uses -- who they have used biometrics -- a

 2 biometric device will be left with no protection

 3 under HIPAA or BIPA.

 4 So HIPAA is already protecting the

 5 patient information, and that's why this exclusion

 6 from the definition exists. Nothing in HIPAA

 7 protects the employee data. There is simply no

 8 logical purpose or policy reason or legislative

 9 history or anything else to back that up. There's

10 nothing.

11 THE COURT: Thank you.

12 MR. ZOURAS: Thank you, your Honor.

13 THE COURT: I'm sorry, though. I feel that a

14 practical application of HIPAA that exists in

15 nearly any HIPAA order is such that, yes, it

16 relates to the patient, but it need not be only

17 patient-driven, that there are -- as I indicated

18 in my examples, there are other publications and

19 treatises and other data that are captured by

20 HIPAA that don't relate to the patient in a

21 primary sense but, rather, secondary.

22 I'm going to grant the 2-619 motion for

23 the reasons stated on the record, for the reasons

24 stated in the briefs in the motion.

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Page 22

 1 MS. SIEBERT: Thank you, your Honor.

 2 MS. HINES: Thank you, your Honor.

 3 MR. ZOURAS: Thank you, your Honor.

 4 MS. JENKINS: Thanks, Judge.

 5 (WHEREUPON, discussion was had off

 6 the record.)

 7 MS. SIEBERT: Your Honor, apologies, we're

 8 not -- what's your Honor's preference? Would you

 9 like a written order? Or would you like us to

10 type up an order, or would you like a handwritten

11 order for today?

12 THE COURT: We will leave it to counsel for

13 the Plaintiff.

14 MR. ZOURAS: Ah.

15 MS. JENKINS: We will write an order today --

16 MR. ZOURAS: Sure.

17 MS. JENKINS: -- for the reasons stated on the

18 record.

19 MR. ZOURAS: We're dismissing the prejudice --

20 MS. JENKINS: Is this a dismissal with or

21 without prejudice?

22 MR. ZOURAS: -- I presume, without -- without

23 leave to amend. We would ask for leave to

24 amend --

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Page 23

 1 MS. JENKINS: Sure.

 2 MR. ZOURAS: -- for the record.

 3 THE COURT: Oh.

 4 MS. SIEBERT: Your Honor, this would be a

 5 dismissal -- this should be a dismissal with

 6 prejudice. If you are ruling that the exemption

 7 applies or the definition for this information --

 8 THE COURT: No, no, no. Well, I am ruling

 9 that way. But I always -- I always give at least

10 one additional bite of the apple.

11 MR. ZOURAS: Okay. Fair enough.

12 THE COURT: 28 days?

13 MR. ZOURAS: Sure.

14 MS. JENKINS: Sure.

15 THE COURT: You will agree to --

16 MR. ZOURAS: Sure. We will be happy to

17 type -- or, sorry -- write up the order today,

18 your Honor.

19 THE COURT: All right. Okay. Pick a date

20 shortly thereafter.

21 MR. ZOURAS: To come back?

22 MS. JENKINS: Sure.

23 THE COURT: Yeah.

24 MS. SIEBERT: So it's a dismissal without

Page 24

 1 prejudice?

 2 MS. HINES: With leave to replead?

 3 THE COURT: Yes.

 4 MS. SIEBERT: Thank you.

 5 Your Honor, we would just question

 6 whether a repleading is possible if we have

 7 determined that this information is not --

 8 THE COURT: Well, I would agree. But if it is

 9 possible, I'd like to leave the door open for that

10 to change our minds.

11 MS. SIEBERT: Understood.

12 THE COURT: All right.

13 MR. ZOURAS: Thank you, your Honor.

14 MS. JENKINS: Thanks, Judge.

15 MS. SIEBERT: Thank you.

16 MS. HINES: Thank you.

17 (WHEREUPON, a recess was had from

18 10:40 a.m. until 10:43 a.m.)

19 THE COURT REPORTER: Do you want this on the

20 record, Judge?

21 THE COURT: Well, I guess you know. I need to

22 ask a question that I should have asked at the

23 beginning.

24 Counsel, we have an electronic court

Page 25

 1 reporting system that is the official court

 2 reporter. By agreement, the parties can certainly

 3 agree to a live court reporter, as we have here

 4 today, but it's up to you.

 5 MS. HINES: Yes, yes. We will do that, then.

 6 MR. ZOURAS: In the future, we will

 7 coordinate, your Honor.

 8 MS. HINES: Yes.

 9 MS. SIEBERT: We agree that this can be --

10 MR. ZOURAS: I mean, we -- we --

11 MS. SIEBERT: -- the transcript, then?

12 MS. JENKINS: We both had court reporters.

13 MS. HINES: Yes, for sure.

14 MS. SIEBERT: We agree that this can be the

15 transcript.

16 MS. JENKINS: Right, from our live reporter.

17 THE COURT: From our live reporter?

18 MS. HINES: Yes.

19 MS. SIEBERT: From our live reporter here.

20 THE COURT: Right. Okay.

21 MR. ZOURAS: We agree, Judge.

22 THE COURT: All right. Thanks.

23 MR. ZOURAS: Sure.

24 (Short pause.)

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Page 26

 1 THE COURT: Thank you.

 2 MS. JENKINS: Thanks, Judge.

 3 MS. SIEBERT: Thank you, Judge. Have a

 4 wonderful holiday weekend.

 5 THE COURT: You, too.

 6 MR. ZOURAS: Thank you, Judge.

 7 MS. SIEBERT: Thank you.

 8 MS. HINES: Thank you, your Honor.

 9 (Which were all the proceedings

10 had at the hearing of the

11 above-entitled cause on this date,

12 Thursday, August 29, 2019.)

13

14 (Time noted: 10:46 a.m.)

15

16

17

18

19

20

21

22

23

24

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 1 STATE OF ILLINOIS )

 2 ) SS:

 3 COUNTY OF W I L L )

 4 I, ROSANNE M. NUZZO, a Certified

 5 Shorthand Reporter of the State of Illinois,

 6 CSR No. 84-1388, do hereby certify that I reported

 7 in shorthand the proceedings had at the hearing

 8 aforesaid, and that the foregoing is a true,

 9 complete, and correct transcript of the

 10 proceedings of said hearing as appears from my

 11 stenographic notes so taken and transcribed under

 12 my personal direction.

 13 IN WITNESS WHEREOF, I do hereunto set my

 14 hand at Chicago, Illinois this 2nd day of

 15 September, 2019.

 16

 17 /s/ Rosanne M. Nuzzo

 ____________________________________

 18 ROSANNE M. NUZZO, CSR, RMR, CRR, CRC

 19 C.S.R. Certificate No. 84-1388.

 20

 21

 22

 23

 24

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EXHIBIT C 

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1 STATE OF ILLINOIS )

 ) SS:

2 COUNTY OF C O O K )

3 IN THE CIRCUIT COURT OF COOK COUNTY

 COUNTY DEPARTMENT - CHANCERY DIVISION

4

5 LUCILLE MOSBY, individually )

and on behalf of all others )

6 similarly situated, )

 )

7 Plaintiffs, )

 )

8 -vs- ) No. 18 CH 05031

 )

9 THE INGALLS MEMORIAL HOSPITAL )

UCM COMMUNITY HEALTH & )

10 HOSPITAL DIVISION, INC., and )

BECTON DICKINSON and COMPANY, )

11 )

 Defendants. )

12

13

14 REPORT OF PROCEEDINGS before the HONORABLE

15 PAMELA McLEAN MEYERSON, Judge of the Circuit Court of

16 Cook County, Illinois, commencing at 2 p.m. on the

17 13th day of January, 2020, upon the hearing of the

18 above entitled case.

19

20

21

22

23

24

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1 that impact HIPAA protected patients and I don't

2 think that that's warranted. So the motions to

3 dismiss that were based on this argument are denied.

4 As for the standing argument, you've made

5 your arguments for the record. I'm going to deny

6 them for the reasons that were set forth in my

7 decisions in Roach vs. Wal-Mart which was 19 CH 1107

8 and Hughes vs. Mayfield, 18 CH 13122. Moving on to

9 the Workers' Compensation preemption argument, I'm

10 going to deny that for the reasons set forth in the

11 Hughes case.

12 The next argument, that the prayer for

13 liquidated damages should be stricken for failure to

14 adequately plead negligence, I think there's a reason

15 that the cases that defendant was able to find that

16 found a failure to adequately plead damages were all

17 cases dealing with the higher measure of damages,

18 that is to say, the $5,000 for violation for

19 intentional or reckless violation. And that is, to

20 state the cause of action in BIPA, you just have to

21 plead a violation of the statute. And if you pled

22 that violation and you stated a cause of action, the

23 next question is, well, was it negligent, in which

24 case you get a thousand per violation, or is it

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1 subject to a higher award of $5,000 in the case of

2 intentional or reckless. It's either one or the

3 other. And essentially either you meant to do it or

4 didn't mean to do it. But nothing further is

5 required to state a cause of action for the

6 negligence. If you've stated the cause of action for

7 violation of statute, you don't have to plead

8 additional amounts. It's only if you want the

9 enhanced damages that you have to plead more. So I'm

10 going to deny the motion to dismiss on those grounds.

11 Regarding the motions to dismiss Count III

12 for failure to adequately plead the disclosure and

13 dissemination, I want to address this together with

14 the argument that was made just by BD, which was that

15 the complaint doesn't state a claim against BD at

16 all. As to BD, the argument is well taken. The key

17 allegation of fact as to what it did is contained in

18 paragraph 35, which says Ingalls and Ingalls Health

19 System use and have used software supplied by BD that

20 requires employees to use their fingerprints as a

21 means of authentication. And then it does go on to

22 allege in paragraph 36 upon information and belief,

23 Ingalls and Ingalls Health System failed and continue

24 to fail to inform employees that they disclose or

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1 disclosed their fingerprints to at least one out of

2 state third party vendor, BD, and likely others,

3 failed to inform employees that they disclose their

4 fingerprints to other currently unknown third parties

5 that post the biometric data in their data centers,

6 failed to inform employees of the purposes and

7 duration for which they collect their sensitive

8 biometric data and failed to obtain written releases

9 from employees before collecting their fingerprints.

10 So the allegations in paragraph 36 don't

11 actually state that those things happened, only that

12 there is a failure to inform the employees that those

13 things happened. And I think that's an important

14 distinction. If you're going to rely upon the theory

15 that in fact there was a violation, you need to say

16 it in a straightforward way rather than just saying

17 that there was a failure to inform that this

18 happened.

19 So I am going to grant defendant BD's 2-615

20 motion to dismiss and it will be without prejudice.

21 We need more allegations about specifically what was

22 BD's role. In saying that Ingalls and Ingalls Health

23 System have used software supplied by BD, that does

24 not indicate any ongoing relationship. It doesn't

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Angela Webster 

vs. 

Windsor Estates Nursing and Rehab

No. 2019 CH 11441

________________________________________________________________

Report of Proceedings

11/16/2020

__________________________________________________________________

TRANSCRIPT AND WORD INDEX

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161 North Clark Street

Suite 1600

Chicago, Illinois 60601

tel:312.332.7900

fax: 312.332.6555

e-mail: crs@casalereporting.com

www.casalereporting.com

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Angela Webster vs. Windsor Estates Nursing and Rehab -32- Report of Proceedings

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casalereporting.com

 1 at this point of the litigation that

 2 indicates that she clearly intended to waive

 3 any expectation of privacy by the submission

 4 of those fingerprints as set forth within the

 5 complaint.

 6 The motion pursuant to Section 619

 7 as to that argument also, that theory, is

 8 denied.

 9 As we discussed, the McDonald

10 decision was decided somewhat recently, and

11 it is controlling. Even if I disagreed with

12 it, I would be obligated to follow it. I

13 agree with it, and I am going to follow it.

14 So the motion pursuant to Section 619

15 relative to the exclusivity of the Workers'

16 Compensation Act is also denied.

17 There's a further argument relative

18 to 615. I agree with this argument. The

19 Code of Civil Procedure and specifically

20 Section 603, clearly obligates the plaintiff

21 to assert in a factual manner all -- assert

22 in a factual manner any allegation that is

23 made against the defendant. No conclusory

24 allegations are acceptable. It's right in

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 1 the code. It's a fact-pleading state.

 2 One cannot jump to the conclusion

 3 that the defendant in this case, based upon

 4 the conduct that is set forth in the

 5 complaint, intentionally or recklessly

 6 violated Ms. Webster's protected rights.

 7 There is a subset of this argument, and that

 8 argument is that plaintiff did not even

 9 assert in a factual manner any negligent

10 violations of the identified statute.

11 In terms of any scienter

12 requirements, I don't think we need to

13 address that at this point. Is mens rea now

14 a part of every of BIPA complaint? I don't

15 think we need to address that. But what we

16 do need to address is whether or not the

17 conduct that is identified in the complaint

18 establishes in a factual way that the

19 defendant violated the BIPA protections that

20 Ms. Webster had. And I do not believe it is

21 anywhere close. Any references to remedies

22 beyond the $1,000 statutory violations based

23 upon any intentional and/or reckless conduct

24 are stricken. That motion is granted in

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 1 part, and it's also denied in part, as the

 2 motion went further than seeking the striking

 3 and/or dismiss of intentional and/or reckless

 4 references to the defendant's conduct as

 5 being characterized as intentional or

 6 reckless. It went and asserted that the

 7 conduct did not rise to the level of

 8 negligence.

 9 The key here is that there are

10 factual allegations that would allow one to

11 conclude, such as myself, that there was a

12 properly pled complaint that identified

13 specific statutory protections that were

14 violated by the defendant. Do we have to

15 characterize that as intentional conduct or

16 negligent conduct? I don't know that you do

17 have to characterize it as negligent, and

18 that motion is denied.

19 So it is abundantly clear, though,

20 if there is going to be a request for

21 enhanced damages beyond the identified

22 statutory minimum, then you're going to have

23 to support that in a factual way. That

24 motion has been granted in part, denied in

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 1 part.

 2 So where does that take us? We need

 3 an answer to the remaining portion of the

 4 complaint.

 5 Mr. Wolfe, how much time?

 6 MR. WOLFE: Your Honor, could I have

 7 28 days?

 8 THE COURT: Absolutely. 28 days is

 9 December 14th.

10 I didn't finish my thought, which

11 one might consider -- could characterize as a

12 rant, but in terms of the striking of the

13 intentional and/or reckless conduct, Counsel,

14 it is without prejudice, but you're going to

15 need my permission, of course, to amend the

16 complaint, if that's what you intend to do at

17 a future date and time.

18 28 days to file an answer. That's

19 December 14th.

20 Has anyone talked about a discovery

21 schedule?

22 MR. ZOURAS: We have not, your Honor.

23 THE COURT: So here's what I want to

24 do.

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1 indicate in fact that after it was sold, then that

2 was the end of it and they had nothing more to do

3 with it. It doesn't indicate anything about what

4 happened after that and whether there's an ongoing

5 relationship and whether in fact they did host the

6 data and whether in fact they now possess it or

7 obtain it or if it's just possessed or obtained and

8 kept by Ingalls on some software that they got from

9 BD. So I am going to grant the 2-615 portion of BD's

10 motion to dismiss without prejudice.

11 I'm also going to grant Ingalls' motion to

12 dismiss Count III without prejudice. I do need more

13 facts as opposed to conclusions about how each

14 defendant disclosed, re-disclosed or otherwise

15 disseminated the information. What we have is too

16 conclusory.

17 So 28 days to re-plead, okay? That puts you

18 on February 10th. And then the defendants will have

19 28 thereafter to answer or otherwise plead and that

20 puts you on March 9th. And let's have you come back

21 for a status sometime in the next week. The week of

22 the 16th is wide open, so the parties can take a look

23 at your schedules and see what works out for you, any

24 day of the week of March 16th. If the defendants

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1 choose to file another motion, you can notice it up

2 for presentment at that time, okay? Question?

3 MR. STRUBBE: Your Honor, I have a question with

4 respect to the liquidated damages.

5 THE COURT: Yes.

6 MR. STRUBBE: You were pretty clear that with

7 respect to negligence, the motion to strike was

8 denied.

9 THE COURT: Mm hmm.

10 MR. STRUBBE: I'm a little unclear as to the

11 higher pleading standard.

12 THE COURT: Well, I don't think, you didn't pray

13 for $5,000, did you? Or did you?

14 MR. FICZKO: It is in our prayer for relief, your

15 Honor.

16 THE COURT: Okay. Well, then I'm going to strike

17 that portion. And if you want to plead that you're

18 entitled to it, you need more facts to support it,

19 okay?

20 MR. ZOURAS: In terms for today's order, your

21 Honor, can we say for the reasons set forth?

22 THE COURT: Yes, please. And then I would like

23 you folks to file a copy of the transcript just

24 sometime before the next status, okay? Good, thank

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Case: 1:20-cv-04241 Document #: 54 Filed: 12/17/21 Page 55 of 56 PageID #:565
1 yo u .

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5 o ff er ed a t he ar in g o f s ai d c a us e. )

6

7

8

9

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1 2

1 3

1 4

1 5

1 6

1 7

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Page 73

Veritext Legal Solutions

www.veritext.com 888-391-3376 FILED DATE: 11/17/2020 5:17 PM 2019CH14368

Case: 1:20-cv-04241 Document #: 54 Filed: 12/17/21 Page 56 of 56 PageID #:566