The Privacy Class Action Review - 2023 - Report - Page 25
they are compliant with the BIPA.
C.
First Illinois BIPA Class Action Verdict
In Rogers, et al. v. BNSF Railway Co., Case No. 19-CV-03083 (N.D. Ill. Oct. 12, 2022),
the first federal court jury trial in a case brought under the BIPA, the plaintiffs secured a
verdict in favor of the class of 45,000 workers against the defendant BNSF. After a
week- long trial in the U.S. District Court for the Northern District of Illinois in Chicago,
the jury found that BNSF recklessly or intentionally violated the law 45,600 times, based
on the defense expert’s estimated number of drivers who had their fingerprints
collected. The court thereafter entered a judgment against BNSF for $228 million.
The plaintiff, a truck driver, filed
a class action lawsuit alleging
that BNSF unlawfully required
drivers entering the company’s
facilities to provide their
biometric information through a
fingerprint scanner. He claimed
that BNSF collected the drivers’
fingerprints without first obtaining
informed written consent or
providing a written policy that
complied with the BIPA and
therefore violated §§ 15(a) and
(b) of the BIPA. BNSF argued
that it did not operate the biometric equipment and instead sought to shift blame to a
third-party vendor who operated the biometric equipment that collected drivers’
fingerprints. The case proceeded before a jury in federal court in Chicago. The
proceeding was closely watched, as it represented the first time any class action had
gone to a full trial with claims under the BIPA.
The trial lasted five days. However, the jurors deliberated for just over an hour. The
jurors were asked: (1) to state on the verdict form whether they sided with the plaintiff;
and (2) if so, to indicate how many times BNSF violated the BIPA negligently or how
many times the company violated the statute recklessly or intentionally. The BIPA
provides for damages of $1,000 for every negligent violation, and up to $5,000 in
liquidated damages for every willful or reckless violation. At the conclusion of the trial,
the jury found that BNSF recklessly or intentionally violated the law 45,600 times.
Accordingly, the court entered a judgment against BNSF in the amount of $5,000 per
violation, for a total amount of $228 million.
On November 9, 2022, BNSF filed a motion for a new trial under Rule 59(a) or to reduce
the damages award under Rule 59(e). It argued that none of the 45,000 class members
suffered any actual harm. It also raised constitutional concerns about the BIPA. BNSF
renewed its motion for judgment as a matter of law pursuant to Rule 50(b), following the
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Duane Morris Privacy Class Action Review – 2023
