The Privacy Class Action Review - 2023 - Report - Page 26


court’s denial of BNSF’s Rule 50(a) motion at trial. In the alternative, BNSF moved for a
new trial under Rule 59(a), or to reduce the damages award under Rule 59(e).
First, BNSF argued that there was insufficient evidence for the jury to find that BNSF
violated the BIPA. In support of that argument, BNSF cited testimony from its former
Director of Technology Services that BNSF did not collect or obtain biometrics from
truck drivers in Illinois, that the biometric data was stored on another entity’s server, and
that BNSF did not maintain a copy of any of that data.
Second, BNSF argued that it was entitled to judgment as a matter of law or a new trial,
or at least a significant reduction in damages, because there was insufficient evidence
for a rational jury to conclude that BNSF violated the BIPA recklessly or intentionally
45,600 times. BNSF claimed that there was no evidence that BNSF even learned about
the BIPA until April 2019. Therefore, BNSF argued, no rational jury could have inferred
from this evidence that BNSF consciously disregarded or intentionally violated the rights
of the plaintiff and the class members at any point, much less for the full class period
starting in April 2014.
Third, BNSF argued that the court’s award of $228 million in damages where the
plaintiff admitted he and the members of the class suffered no actual harm violated the
Due Process Clause and Excessive Fines Clause of the U.S. Constitution. BNSF
pointed out that it was undisputed that neither the plaintiff nor any member of the class
had suffered any actual harm from any alleged violation of BIPA. Accordingly, BNSF
asked the court to enter judgment as a matter of law against the plaintiff and in favor of
BNSF, or, in the alternative, to grant BNSF a new trial or substantially reduce the
damages award against BNSF. The motion remains pending as of the close of the year.
This landmark verdict showcases the potentially devastating impact of the BIPA statute
on unwary businesses across the state of Illinois that collect, use, or store biometric
information. Such a result will undoubtedly embolden the plaintiffs’ class action bar and
serve as an eye opener for businesses in Illinois. In the short term, companies can
expect an uptick in the number of BIPA class actions filed by the plaintiffs’ bar. While it
is almost certain that the verdict will be challenged on appeal in 2023, companies can
expect that plaintiffs’ lawyers will increase their settlement demands in other BIPA class
actions.
D.
Other Privacy Class Certification Rulings
In Fischer, et al. v. Instant Checkmate LLC, 2022 U.S. Dist. LEXIS 59143 (N.D. Ill. Mar.
31, 2022), the plaintiffs brought a class action alleging that the defendant’s background
check website violated the Illinois Right of Publicity Act. The plaintiffs filed a motion for
class certification for three separate classes, and the court granted in part and denied in
part the motion. The court granted plaintiffs’ motion for class certification of the SEO
directory and injunctive relief classes and denied certification of the search results class.
The defendant argued that the plaintiffs’ claims were subject to arbitration based on
agreement signed when they signed up to use the website. The court found that the
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Duane Morris Privacy Class Action Review – 2023