Railroad and freight shipper CSX has become one of the latest employers to settle a big dollar claim under Illinois’ biometrics privacy law, agreeing to pay $5.25 million to end a class action accusing the railroad of improperly requiring truck drivers and others to scan their fingerprints to verify their identity when entering secure CSX rail yards.
Next week, a Cook County judge could consider granting final approval to the deal.
Under the settlement, more than 3,000 CSX workers could receive up to $1,000 each, and at least “several hundred dollars,” according to a motion filed by attorneys for the plaintiffs on April 2.
Myles McGuire
| mcgpc.com
The plaintiffs’ lawyers have asked to receive 38% of the total settlement, or a little less than $2 million.
Plaintiffs are represented in the action by attorneys David L. Gerbie, Myles McGuire, Evan M. Meyers and Brendan Duffner, of the firm of McGuire Law P.C., of Chicago.
Cook County Judge Allen P. Walker granted preliminary approval to the settlement in January, and at that time scheduled a final approval hearing for May 13.
Truck driver Richard Rogers had filed suit in Cook County Circuit Court against Florida-based CSX in March 2019.
In the lawsuit, Rogers and his attorneys from the McGuire firm accused CSX of not abiding by the requirements of the Illinois Biometric Information Privacy Act (BIPA) when it required truck drivers and others to scan fingerprints when accessing secure facilities.
Specifically, he alleged the company failed to abide by the BIPA law’s technical notice and consent provisions, which he said should require the company to obtain written consent from workers and provide them with information concerning how the company would store, share and ultimately destroy the fingerprint scans.
The lawsuit sought damages of $1,000-$5,000 per violation, as allowed under the BIPA law. The law has been interpreted to define individual violations as each time an employee scanned their fingerprints, potentially putting employers at risk of huge payouts.
The plaintiffs in the CSX case, for instance, asserted the lawsuit could include thousands of CSX workers in Illinois, which could allow damages to soar well into the millions, or even billions of dollars, should the case go to trial and a jury find in favor of the plaintiffs.
The lawsuit is similar to thousands of others brought against businesses and employers of all types and sizes under the BIPA law since 2015, by a collection of plaintiffs’ law firms. The onslaught of lawsuits was boosted in 2019, when the Illinois Supreme Court ruled plaintiffs’ don’t need to prove they were actually harmed by the collection of their biometric data to bring potentially massive class actions under the BIPA law. They need only allege the business failed to meet the technical provisions of the law, the state high court ruled.
A federal judge in Chicago rejected CSX’s attempts to toss the lawsuit. CSX, for instance, argued Rogers and others were not deceived, and knew the fingerprint scans were occurring.
The two sides entered into settlement talks in 2020 to bring the matter to a conclusion.
In late 2020, the two sides agreed to take the case back to Cook County court for the purposes of completing and administering the settlement.
The settlement will include anyone who “used (the CSX) Fingerscan System within the state of Illinois at any time” from March 2014 to January 2021.
According to the April 2 motion from the McGuire lawyers, more than 3,000 people had submitted claims under the settlement, with more than a month to go to the May 7 claims deadline. The amount of money distributed to each class member would depend on how many people submitted valid claims for a share of the $5.25 million fund, minus the payouts to the lawyers and to cover settlement administration costs, according to the settlement agreement.
CSX has been represented by attorney Joel Griswold, of the firm of Baker & Hostetler, of Chicago.