United States: Are BIPA Claims A Runaway Train? Defendant Hit With $228 Million Federal Jury Verdict In Rogers v. BNSF Railway

On Wednesday, a federal jury broke new ground for lawsuits alleging violations of the Illinois Biometric Information Privacy Act (BIPA). Rogers v. BNSF Railway Co. is the first BIPA class action to go to trial in Illinois, and after only five days of trial and a mere hour of deliberation, the jury returned a verdict in favor of the plaintiff resulting in a whopping $228 million damage award to the class.

Plaintiff Richard Rogers filed the case in 2019, seeking relief on behalf of a class of more than 45,000 truck drivers who used fingerprint-scanning technology on an automated gate system to enter and exit rail yards. Specifically, the plaintiff alleged that BNSF failed to comply with BIPA's notice and consent requirements when it scanned the truck drivers' fingerprints for identity verification purposes when the drivers visited BNSF rail yards to pick up and drop off loads.¹

Prior to the trial, BNSF took the position that it was not the proper defendant, instead pointing the finger at its vendor, Remprex LLC, which allegedly installed and maintained the automated entry and exit system used by the truck drivers. Judge Matthew Kennelly rejected this argument on summary judgment, leaving the issue to be decided by the jury.² Judge Kennelly further denied BNSF's pre-trial motions seeking to exclude evidence or arguments by the plaintiff that BNSF could be held liable for the actions of its third-party vendor.

At trial, BNSF continuously urged the jury to find that Remprex was the responsible party, alleging that it relied on Remprex and had no ability to control the technology at issue. Since BIPA permits damages only for negligent, reckless, or intentional violations, BNSF argued that it acted reasonably in contracting an industry expert for its security needs. Further, BNSF argued that the contract between the parties required Remprex to comply with the law. The jury was unpersuaded by BNSF's arguments.

Instead, the jury sided with the plaintiff, who argued that: (1) BNSF had the ability to direct Remprex's actions, and (2) BNSF "intentionally flouted the law" by continuing the same practices even after the lawsuit was filed in March 2019.

BIPA provides for $5,000 in statutory damages for each intentional or reckless violation and $1,000 for each negligent violation. The jury was not charged with determining the amount of damages to award. Instead, the jury was tasked with determining how many times BNSF violated BIPA and whether the violations were negligent, reckless, or intentional. The jury found that BNSF recklessly or intentionally violated BIPA 45,600 times-once per class member-imposing the maximum penalty of $5,000 for each violation. BNSF has indicated its intent to appeal the verdict.

The $228 million award in Rogers is a clear indication of how much damage BIPA claims can cause. But this damage exposure could get even worse for defendants. In Rogers, BNSF was deemed liable for one violation-or one fingerprint scan-per class member. Currently pending before the Illinois Supreme Court is Cothron v. White Castle System, Inc., which will determine whether a BIPA claim accrues at only the initial fingerprint collection or at each fingerprint scan. Cothron has the potential to turn millions of dollars in damages into billions.

Key Takeaways

• BIPA claims are not going anywhere, and filings will likely increase due to the recent verdict in Rogers v. BNSF Railway Co.
• Defendants may not be able to successfully punt liability to third-party vendors collecting biometric identifiers or information on their behalf.
• Companies and counsel should keep an eye on Cothron v. White Castle System, Inc., which could exponentially increase potential liability for BIPA claims.
• Companies should take extreme caution in the collection and storage of biometric data and continuously reevaluate their compliance policies and contracts with vendors.

Footnotes

1. Plaintiff's complaint also included claims that BNSF failed to maintain a publicly-available retention policy for biometric information, but these claims were severed and remanded to the Circuit Court of Cook County.

2. BNSF petitioned the district court to appeal the vicarious liability issue to the Seventh Circuit, but Judge Kennelly denied BNSF's motion.

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