Privacy observers call the plaintiffs’ victory in Rogers v. BNSF’s second historic decision of the BIPA era. The case is also the first decision of a jury trial in a class action lawsuit under the biometric information privacy law of the US state of Illinois.
U.S. District Court jurors easily sided with truckers in a class action lawsuit alleging their biometric data was collected by BNSF Railway without their consent and without telling them how it would be handled, both BIPA demands .
The BNSF lawyers testified in their client’s defense that the fingerprint-reading system at the center of the case was not their client’s. It was provided and operated by Remprex, a third party contractor. Drivers – 45,000 of whom joined the class action – had to leave a fingerprint to enter a rail yard.
In a last-minute motion before the start of case 19 cv 3083 (Northern District of Illinois), the defendants had asked the judge to disregard anything that suggested BNSF could be held liable for the actions of ‘a third. The motion was defeated.
In the end, it took less than an hour for the jury to decide in favor of the plaintiffs.
According According to legal news publisher LexBlog’s analysis of the decision, the railroad is on the hook for at least $44 million. That is if the court chooses to use BIPA’s lower damages award of $1,000 and does not award damages for each instance of unlawful biometric scanning.
Others say BNSF is looking at $800 million or more.
The payment is speculative. As noted, another case, Cothron v. White Castle is before the Illinois Supreme Court arguing that multiple scans, even if ultimately deemed illegal, amount to a single violation.
The message says the decision will likely be used in future class action settlement negotiations “to augment the already inflated value of BIPA claims.”
Analyzing the verdict, an article in The National Law Review presents Rosenbach v. Six Flags (2019 IL 123186, 129 NE 3d 1197) as the first major BIPA case. This is where the Illinois Supreme Court decided that no one had to claim actual injuries or damages to bring an action under the statute. Technical violations are enough.
In the fall of 2019, BNSF’s legal team attempted to have the case dismissed on the grounds that federal law preempted the plaintiffs’ injury claims. The judge said federal law was irrelevant in the case, according in the Cook County, Illinois Registry.
The BNSF was refuse summary judgment in the case this spring.
Perhaps feeling a loss, lawyers this week asked the judge to prevent a jury verdict.
Preliminary approval was granted this month for the $3.5 million settlement of a class action lawsuit that accuses provider Ceridian of violating BIPA with its time and attendance tracking products, according to the Record.
And the old stuff keeps dragging on.
Like White Castle, a case involving the statute of limitations for BIPA violations (Tims case v. Black Horse Carriers 127801) could greatly affect payouts. Is the limitation period one or five years?
And Google’s $100 million collective settlement in a BIPA case made headlines last month when it was reported that the class would get less per person than expected.
biometric data | biometrics | BIPA | data privacy | fingerprint biometrics | trial | time and presence