CHICAGO — A federal judge won’t put the brakes on a truck driver’s class action accusing Union Pacific of violating Illinois' biometrics privacy law in the way it processed handprint scans for anyone accessing railyards.
Truck driver David Fleury’s complaint alleged UP violated the Illinois Biometric Information Privacy Act (BIPA) because its identity verification kiosks collected and stored personal information, although the company never obtained written consent for the practice. He also alleged UP didn’t provide written disclosure of its data retention policy and said the railroad transmitted the biometric data to third parties.
The railroad moved to dismiss Fleury’s lawsuit, arguing both the Federal Railroad Safety and Interstate Commerce Commission Termination acts should pre-empt his claims. It also argued Fleury gave consent to the collection of his data.
U.S. District Judge Jorge Alonso issued his opinion on that motion March 24.
According to Alonso, UP relied on Department of Homeland Security standards and regulations regarding railyard access and hazardous materials to bolster its position on federal pre-emption. UP argued, for instance, that it participated in DHS’ Customs-Trade Partnership Against Terrorism (C-TPAT) program.
Alonso, however, said the evidence thus far doesn’t warrant dismissal.
“To the extent that Union Pacific argues C-TPAT’s minimum security requirements — or the other two DHS guidelines it references — can constitute a ‘regulation’ or ‘order’ that triggers FRSA pre-emption, Union Pacific does not adequately develop this argument, and the Court declines to conduct the analysis on its own,” Alonso wrote. “But even putting these issues aside, the Court finds the standards and regulations raised by Union Pacific cannot act to preempt Fleury’s BIPA claim.”
Alonso said states are allowed to enforce laws concerning railroad security and safety unless the Homeland Security secretary puts forth a rule or order controlling the subject matter. He added BIPA concerns potential harms, “such as identity theft and economic injuries, that flow from the unfettered collection and use of biometric information.” Whereas the federal standards UP cited do address biometric data as it relates to railyard access, they don’t “address or even mention the collection or storage of biometric information," which the judge said isn't enough to trigger pre-emption under federal law.
The only BIPA prohibition on how data is used is a ban on direct profit from personal data as a product, Alonso added. Otherwise, he said, “BIPA does not attempt to regulate for what specific purposes an entity can collect and use biometric information,” so there is no overlap with the federal regulations.
Turning to the ICCTA, which created the Surface Transportation Board and gave it exclusive jurisdiction over rail transportation regulation, Alonso said BIPA neither forces UP to obtain a permit or preapproval to use its biometric kiosks, nor does the law directly regulate an area of the rail business that falls under STB oversight.
Alonso said UP failed to show how BIPA’s rules constitute rail regulation under the ICCTA. He cited a 2019 decision from a fellow Chicago federal judge who refused to dismiss truck driver Richard Rogers' class action against BNSF Railway Company on similar grounds.
Fleury filed his complaint in December 2019. Afterward, UP added a disclosure and consent form to the kiosks, which Fleury signed in June 2020. UP argued that signature created retroactive consent, but Alonso said nothing in the form Fleury signed addressed any prior verbal understanding or agreement.
“While the June 2020 consent may ultimately limit the damages Fleury can recover or possibly bar his claim altogether,” Alonso wrote, “Union Pacific fails to show dismissal is appropriate at this time.”
Alonso fully denied the motion to dismiss.
Fleury has been represented in the case by attorneys Brendan J. Duffner and David L. Gerbie, of the firm of McGuire Law P.C., of Chicago.
UP has been represented by attorneys Amy Yongmee Cho, Melissa A. Siebert and Jonathon M. Studer, of the firm of Shook, Hardy & Bacon LLP, of Chicago.