Duane Morris Class Action Review - 2023 - Report - Page 250
agreement (CBA) while employed at Jewel-Osco. However, the court found that the
plaintiff’s claims were not preempted by the LMRA because it could resolve the claims
without interpreting the CBA. Finally, the court rejected the defendant’s arguments that:
(i) the plaintiff failed to allege that Turing’s relevant conduct occurred in Illinois; and (ii)
the Public Readiness and Emergency Preparedness Act (the PREP Act) immunized it
from BIPA liability. Regarding extraterritoriality, the court held that the plaintiff
sufficiently alleged that Turing’s conduct occurred “primarily and substantially” in Illinois,
thereby satisfying the “extraterritoriality doctrine.” Id. at *29. Regarding PREP Act
immunity, the court noted that the PREP Act provides immunity from liability relating to
the “use of a covered countermeasure” upon the declaration of a public health
emergency by the Secretary of the Department of Health and Human Services. The
court held that PREP Act immunity did not apply because the Food and Drug
Administration had not approved the Turing Shield, meaning that the device did not
satisfy the definition of a “covered countermeasure.” Id. at *32. For these reasons, the
court denied the defendant’s motion to dismiss.
In Staley, et al. v. UMAR Services, 2022 U.S. Dist. LEXIS 168497 (N.D. Ill. Sept. 19,
2022), the plaintiffs, a group of individuals who donated blood plasma at the defendants’
donation centers for money, alleged that they were required to provide their fingerprints
scans to the defendants at kiosk for identity and tracking purposes. The plaintiffs
contended that the defendants violated Sections 15(a) and 15(b) of the BIPA by: (i)
failing to provide notice of the specific limited purpose or length of time for which the
defendants collected, stored, or used their biometrics; (ii) failing to provide retention
policies, guidelines, or schedules for deletion of their biometric data; (iii) failing to obtain
their authorization to store their data; and (iv) failing to destroy the data in the requisite
time period. Id. at *2. The defendants moved to dismiss on the grounds that: (i) federal
law regarding plasmapheresis preempts the BIPA; (ii) several of the plaintiffs provided
informed consent for the collection of their biometric data, and therefore, their Section
15(b) claims could not survive; (iii) the BIPA did not apply to the collection of the
plaintiffs’ fingerprints under three statutory exemptions; (iv) the plaintiffs’ claims were
untimely; and (v) the plaintiffs failed to state claims for reckless violations of the BIPA.
First, the court addressed the federal preemption argument. The defendants asserted
that there was conflict between the Food and Drug Administration (FDA) regulations
and the BIPA because the former requires plasmapheresis to establish a “donor
identification system” and to keep records on the “donor records” for “10 years after the
records of processing are completed.” Id. at *9. Since the BIPA requires destruction of
biometric identifies within three years, the defendants argued that the resulting conflict
must be resolved in favor of federal law. The court rejected the defendants’ argument. It
held that the federal law did not require the use of biometric data to verify plasma
donors’ identities. The court opined that the only requirement was to “obtain proof of
identity of the donor” and that the requisite proof could be established with photographic
identification. Id. at *10. Further, the court found no merit to the defendants’ argument
that fingerprint scans best served the purpose of the FDA regulations requiring donor
identification systems. Instead, it determined that there was “no authority that fingerprint
scans are superior to the other forms of identification that regulations accept.” Id. at *11.
Second, the court analyzed the defendants’ contention that several of the plaintiffs
signed consent forms and thus could not assert Section 15(b) claims. The court
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Duane Morris Class Action Review – 2023
