Another big court decision in US litigation. Jury finds for biometric privacy rights
Privacy rights observers are calling the win by plaintiffs in Rogers v. BNSF the second landmark decision of the BIPA era. The case also is the first class-action jury trial decision under the U.S. state of Illinois’ Biometric Information Privacy Act.
Jurors in a U.S. district court readily sided with truck drivers in a class action alleging that their biometric data was collected by BNSF Railway without their consent and without telling them how it would be managed, both BIPA requirements.
Lawyers for BNSF said in their client’s defense that the fingerprint scanning system at the center of the case is 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 print to enter a rail yard.
In a last-minute motion prior to the start of case 19 cv 3083 (Northern District of Illinois), the defendants had asked the judge to disregard anything that suggests BNSF could be held liable for actions of a third party. The motion was denied.
Ultimately, it took the jury less than an hour to decide in favor of the plaintiffs.
According to analysis of the decision by law news publisher LexBlog, the rail company is on the hook for at least $44 million. That is if the court chooses to use BIPA’s lower damage award of $1,000 and does not award damages for every instance of an illegal biometric scan.
Others say BNSF is looking at $800 million or more.
The payout is speculative. As has been pointed out, another case, Cothron v. White Castle is before the Illinois Supreme Court arguing that multiple scans, even if ultimately considered illegal, represent just one violation.
The post says the decision will likely be used in future class action settlement negotiations “to drive up the already-inflated value of BIPA claims.”
Analyzing the verdict, an article in The National Law Review holds out Rosenbach v. Six Flags (2019 IL 123186, 129 N.E. 3d 1197) as the first big BIPA case. It was there that the Illinois Supreme Court decided that no one has to claim actual injury or damage to sue under the act. Technical violations are enough.
In fall 2019, BNSF’s legal team tried to get the case dismissed on the grounds that federal law pre-empted claims of harm by the plaintiffs. The judge round that federal law was irrelevant in the case, according to the Cook County (Illinois) Record.
BNSF was denied a summary judgment in the case this spring.
Perhaps sensing a loss, the lawyers this week asked the judge to prevent a jury verdict.
The line of BIPA cases continues Preliminary approval was granted this month for the $3.5 million settlement of a class action that accuses vendor Ceridian of violating BIPA with its time and attendance tracking products, according to the Record.
And old cases continue to rattle around.
Like White Castle, a case involving the statute of limitations for BIPA violations (Tims vs. Black Horse Carriers case 127801) could greatly affect payouts. Is the statute of limitations one or five years?
And Google’s $100 million class settlement of a BIPA case made headlines last month, when it was reported that the class would get less per person than had been anticipated.