Chicago Business Litigation Lawyer Blog
If you operate a healthcare practice, a telehealth platform, a behavioral health clinic, a fertility center, an addiction treatment facility, a dental or optometry chain, or any consumer facing business that handles sensitive information online, you have probably heard about the new generation of class action lawsuits over tracking pixels.
The lawsuits target businesses that embed third party tools like the Meta pixel, the TikTok pixel, or Google Analytics on their websites. The complaints allege that the tools captured information about a user’s interactions and transmitted that information to advertising platforms without consent.
In most of these cases, the defendant has a strong defense built into the federal Wiretap Act itself. When a user submits information to your website, you are a party to the communication, and 18 U.S.C. section 2511(2)(d) excludes parties from liability under the statute.
Plaintiffs know about that defense, so they have a workaround. They invoke the same subsection’s other clause, the so called crime tort exception. It provides that the party exception does not apply if the communication was intercepted for the purpose of committing any criminal or tortious act. Plaintiffs typically plead a HIPAA violation, an invasion of privacy claim, or both, as the predicate.
The question is whether this workaround survives.
That question is now actively splitting the federal courts in Illinois. The split is real, current, and important enough that one judge has already certified it for interlocutory appeal.
In the defense friendly camp, Doe v. Genesis Health System, decided by the United States District Court for the Central District of Illinois in 2025, held the answer is no. The court read the statute carefully and concluded that the defendant must have intercepted the communication for the purpose of committing a crime or a tort. Marketing and advertising purposes, the court held, do not satisfy that standard, because lawful commercial activity, even when it ultimately runs afoul of HIPAA’s regulatory scheme, is not the same as acting in order to commit a crime or tort. The Seventh Circuit articulated a similar principle years earlier in Thomas v. Pearl and again in Desnick v. American Broadcasting Cos. The recorder must intend to break the law or commit a tort. That intent is the heart of the carve out.
Doe 1 v. Chestnut Health Systems, Inc., decided in 2025, took the same path and dismissed a complaint that recited criminal or tortious purpose in conclusory terms. The court held that a conclusory recital will not do.
In the plaintiff friendly camp, Stein v. Edward-Elmhurst Health, decided in 2025, went the other way. The court held that a HIPAA violating disclosure can satisfy the carve out even when the defendant’s overall purpose was lawful commercial advertising. The same court later denied reconsideration but explicitly certified the question for interlocutory appeal, finding substantial ground for difference of opinion. That certification is itself a tell. When a federal trial court is comfortable enough with the strength of the opposing view to permit an immediate appeal, the law is genuinely unsettled.
What does this mean for Illinois businesses? Three things. Continue reading ›