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.
The first is that it matters where your case is filed. The Northern, Central, and Southern Districts of Illinois have not converged on the same test, and a case filed in one district can come out differently than the same case filed in another. Defense counsel should pay close attention to the panel of judges currently assigned to pixel cases, and to how those judges have ruled.
The second is that pleading discipline matters. Plaintiffs cannot satisfy the crime tort carve out by chanting HIPAA or invasion of privacy without supporting facts. The complaint must plead specific facts that would, if true, show the defendant acted with the purpose of committing a crime or a tort. Most of the early wave pixel complaints were drafted before this issue was actively litigated, and they read like form pleadings. Defense counsel should be looking hard at whether the complaint actually pleads purpose, or merely recites it.
The third is that the doctrine is moving. The Stein interlocutory appeal could change the landscape in Illinois quickly. Businesses that are sued today and businesses that settled cases last year are watching the same courts, because the answer affects exposure for everyone.
There are also strategic reasons to engage on the crime tort issue early in the litigation. A motion to dismiss focused on the carve out exposes the weakness of the plaintiffs’ theory before discovery costs balloon. If the court declines to dismiss, the same arguments preserve appellate issues and shape the discovery plan. If the court agrees, the case is over.
For healthcare providers and other businesses subject to HIPAA, there is one more consideration. HIPAA does not create a private right of action. Federal courts in Illinois have repeatedly confirmed that no individual can sue directly for a HIPAA violation. The plaintiffs’ bar uses HIPAA indirectly, by pleading it as the predicate criminal or tortious act in the Wiretap Act case. That detour only succeeds if the court accepts the Stein view. Under Genesis and Chestnut, the detour fails.
The pattern that defense lawyers see repeatedly is the early stage settlement that happens because the defendant did not understand its own defense theory. A demand letter arrives. A litigation budget is calculated. A nuisance settlement is paid. That math changes when the defense knows there is a viable, plausibly winning motion to dismiss available.
If your business operates a website with tracking tools and you have received a demand letter or a class action complaint citing 18 U.S.C. section 2511 or a HIPAA based theory, the defense window is open right now. DiTommaso Lubin, P.C. represents Illinois businesses in pixel tracking, wiretap, HIPAA related, and class action litigation. Call 630-333-0333 for a free consultation or contact us online. This post is for general information and is not legal advice.