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First BIPA Trial Results in $228M Judgment for Plaintiffs

Businesses defending class actions under the Illinois Biometric Information Privacy Act (BIPA) have struggled to defeat claims in recent years, as courts have rejected a succession of defenses.

We have been following this issue and have previously reported on this trend, which continued last week in the first BIPA class action to go to trial. The Illinois federal jury found that BNSF Railway Co. violated BIPA, resulting in a $228 million award to a class of more than 45,000 truck drivers.

Named plaintiff Richard Rogers filed suit in Illinois state court in April 2019, and BNSF removed the case to the US District Court for the Northern District of Illinois. Plaintiff alleged on behalf of a putative class of BNSF truck drivers that BNSF required the drivers to provide biometric identifiers in the form of fingerprints and hand geometry to access BNSF’s facilities. The lawsuit alleged BNSF violated BIPA by (i) failing to inform class members their biometric identifiers or information were being collected or stored prior to collection, (ii) failing to inform class members of the specific purpose and length of term for which the biometric identifiers or information were being collected, and (iii) failing to obtain informed written consent from class members prior to collection.

In October 2019, the court rejected BNSF’s legal defenses that the class’s BIPA claims were preempted by three federal statutes governing interstate commerce and transportation: the Federal Railroad Safety Act, the Interstate Commerce Commission Termination Act, and the Federal Aviation Administration Authorization Act. The court held that BIPA’s regulation of how BNSF obtained biometric identifiers or information did not unreasonably interfere with federal regulation of rail transportation, motor carrier prices, routes, or services, or safety and security of railroads.

Throughout the case, including at trial, BNSF also argued it should not be held liable where the biometric data was collected by its third-party contractor, Remprex LLC, which BNSF hired to process drivers at the gates of BNSF’s facilities. In March 2022, the court denied BNSF’s motion for summary judgment, pointing to evidence that BNSF employees were also involved in registering drivers in the biometric systems and that BNSF gave direction to Remprex regarding the management and use of the systems. The court concluded (correctly, as it turned out) that a jury could find that BNSF, not just Remprex, had violated BIPA.

The case proceeded to trial in October 2022 before US District Judge Matthew Kennelly. At trial, BNSF continued to argue it should not be held responsible for Remprex’s collection of drivers’ fingerprints. Plaintiff’s counsel argued BNSF could not avoid liability by pleading ignorance and pointing to a third-party contractor that BNSF controlled. Following a five-day trial and roughly one hour of deliberations, the jury returned a verdict in favor of the class, finding that BNSF recklessly or intentionally violated BIPA 45,600 times. The jury did not calculate damages. Rather, because BIPA provides for $5,000 in liquidated damages for every willful or reckless violation (and $1,000 for every negligent violation), Judge Kennelly applied BIPA’s damages provision, which resulted in a judgment of $228 million in damages. The judgment does not include attorneys’ fees, which plaintiff is entitled to and will inevitably seek under BIPA.

While an appeal will almost certainly follow, the BNSF case serves as a stark reminder of the potential exposure companies face under BIPA. Businesses that collect biometric data must ensure they do so in compliance with BIPA and other biometric privacy regulations. Where BIPA claims have been asserted, companies should promptly seek outside counsel to develop a legal strategy for a successful resolution.

© 2023 ArentFox Schiff LLPNational Law Review, Volume XII, Number 291
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About this Author

Robert D. Boley Litigation Attorney Schiff Hardin Ann Arbor, MI
Associate

Rob represents clients in a wide range of litigation matters, including complex commercial and environmental disputes, and white collar investigations and litigation. He has experience representing clients before state and federal courts, as well as in investigations by government agencies and self-regulatory organizations.

Before joining Schiff Hardin, Rob was a litigation associate in the Chicago office of an international law firm.

Experience

  • Represented a Fortune 100 manufacturer in multiple lawsuits by regulators and property owners asserting claims under...
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Paula M. Ketcham Litigation Attorney ArentFox Schiff Chicago
Partner

Clients frequently turn to Paula for high­-stakes, high-pressure, time-sensitive litigation.

Many of Paula’s cases involve employers and their departing employees, but she frequently defends clients in state and federal class actions that cross practice-area and industry boundaries. Her class action experience runs the gamut from defending employers in employment discrimination suits, fiduciaries in ERISA actions, and insurers and other companies in consumer class actions. She regularly litigates these cases beyond her Chicago home office.

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Adam L. Littman Boston Privacy Attorney ArentFox Schiff
Partner

Adam L. Littman is a Partner at ArentFox Schiff's Boston office. His practice focuses on business litigation, privacy and cybersecurity, and employment law.  

In his business litigation practice, Adam represents companies and individuals in a wide variety of complex disputes, including cases involving shareholders in closely-held businesses, commercial contracts, real estate and business transactions, non-competition and restrictive covenants, fiduciary duties, trusts and estates, and professional malpractice. Adam has significant experience in...

617-973-6195
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