countermeasure” upon the declaration of a public health emergency by the Secretary ofthe Department of Health and Human Services. The court held that PREP Act immunitydid not apply because the Food and Drug Administration had not approved the TuringShield, meaning that the device did not satisfy the definition of a “coveredcountermeasure.” Id. at *32. For these reasons, the court denied the defendant’s motionto 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 fingerprintscans to the defendants at kiosks for identity and tracking purposes. The plaintiffscontended that the defendants violated §§ 15(a) and 15(b) of the BIPA by: (i) failing toprovide notice of the specific limited purpose or length of time for which the defendantscollected, stored, or used their biometrics; (ii) failing to provide retention policies,guidelines, or schedules for deletion of their biometric data; (iii) failing to obtain theirauthorization to store their data; and (iv) failing to destroy the data in the requisite timeperiod. Id. at *2.The defendants moved to dismiss on the grounds that: (i) federal law regardingplasmapheresis preempts the BIPA; (ii) several of the plaintiffs provided informedconsent for the collection of their biometric data, and therefore, their § 15(b) claimscould not survive; (iii) the BIPA did not apply to the collection of the plaintiffs’ fingerprintsunder three statutory exemptions; (iv) the plaintiffs’ claims were untimely; and (v) theplaintiffs failed to state claims for reckless violations of the BIPA. First, the courtaddressed the federal preemption argument. The defendants asserted that there wasconflict between the Food and Drug Administration (FDA) regulations and the BIPAbecause the former requires plasmapheresis to establish a “donor identification system”and to keep the “donor records” for “10 years after the records of processing arecompleted.” Id. at *9. Since the BIPA requires destruction of biometric identifiers withinthree years, the defendants argued that the resulting conflict must be resolved in favorof federal law.The court rejected the defendants’ argument. It held that the federal law did not requirethe use of biometric data to verify plasma donors’ identities. The court opined that theonly requirement was to “obtain proof of identity of the donor” and that the requisiteproof could be established with photographic identification. Id. at *10. Further, the courtfound no merit to the defendants’ argument that fingerprint scans best served thepurpose of the FDA regulations requiring donor identification systems. Instead, itdetermined that there was “no authority that fingerprint scans are superior to the otherforms of identification that regulations accept.” Id. at *11. Second, the court analyzed thedefendants’ contention that several of the plaintiffs signed consent forms and thus couldnot assert § 15(b) claims. The court reasoned that § 15(b) requires not just a signedconsent form, but also written notice that the biometric information is being collectedand stored, and the purpose and length of time of the storage. Since the court foundthat the consent agreements did not contain the full information required, it rejected thedefendants’ argument. Third, the court ruled that the defendants’ argument that the29© Duane Morris LLP 2023Duane Morris Privacy Class Action Review – 2023
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