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BNSF Rail asks to settle or retry its BIPA damage award

BNSF Rail asks to settle or retry its BIPA damage award

The defendant in one of the highest profile biometric privacy cases in the United States may want out of the case through a settlement.

BNSF Railway has been found guilty in Illinois of violating that state’s landmark Biometric Information Privacy Act. It collected biometric scans of truck drivers entering its yards as a security measure but did not get consent from drivers entering Illinois BNSF facilities.

In case 2019cv03083, the rail company was ordered by a jury to pay fines totaling $228 million. BNSF appealed the verdict and won a retrial on the award, although not the verdict.

The retrial, if any, will open October 2.

Attorneys on behalf of BNSF now have asked the U.S. district judge for permission to leave the case and swap in a new law firm. The rail company’s new firm, Jones Day, would “represent it in settlement negotiations with the plaintiff and, if necessary, a re-trial on damages,” according to reporting by the Reuters news agency.

The judge in the case, as have other judges in other BIPA cases, viewed the law as setting mandatory financial judgments, which would call for $228 million in penalties.

A subsequent BIPA case before the Illinois Supreme Court seems to define damages not as mandatory but as discretionary, meaning judges can impose smaller fines.

The law firm David Wright Tremaine has a concise analysis of this case and its implications.

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