A federal judge denied rail giant Burlington Northern Santa Fe’s request to have an appeals panel determine whether the judge was correct in refusing to end a truck driver’s biometrics class action stemming from railyard handprint scans.
U.S. District Judge Matthew Kennelly issued an opinion June 21. The decision stands as the latest development in a lawsuit trucker Richard Rogers filed in April 2019 accusing BSNF of violating the Illinois Biometric Information Privacy Act by deploying fingerprint scanners, allegedly without first getting written consent from those who wanted yard access to collect their personal information. The lawsuit further accused BNSF of failing to provide written disclosure of its plans for retaining and destroying the fingerprint scans.
In October 2019, Kennelly denied BNSF’s motion to dismiss, finding the federal Railroad Safety Act, as well as the Interstate Commerce Commission Termination and Federal Aviation Administration Authorization acts, didn’t pre-empt Rogers’ state law claims. Kennelly also rejected BNSF's arguments that Rogers’ claims were insufficient.
In August 2021, Kennelly granted Rogers’ motion to sever and remand part of his BIPA claim to Cook County Circuit Court. The next month, he filed an amended complaint in federal court, narrowing it to just one claim under BIPA. BNSF moved for summary judgment on that remaining claim, a request Kennelly denied in March 2022.
BNSF had again argued federal railroad law regulates the same subject matter as BIPA — secure access to railroad property — but Kennelly said federal law doesn't necessarily preempt the safety concerns addressed by state law, unless it “substantially subsumes” those concerns. He further explained neither the FRSA nor federal regulations concerning transportation or homeland security say anything about an individual’s right to privacy for their biometric information, such as fingerprints.
After hitting that roadblock, BNSF asked Kennelly to allow the company to appeal his denial of summary judgment. BNSF argued a later decision in the same federal district court conflicts with Kennelly’s position on federal pre-emption and further said Kennelly was wrong to find BNSF could be held vicariously liable for the actions of Remprex, the company that BNSF says actually collected the data.
The railroad cited an opinion from Northern District of Illinois Chief Judge Rebecca Pallmeyer, issued a week after Kennelly denied summary judgment, in which she held the Airline Deregulation Act pre-empted BIPA claims against American Airlines.
“If a disagreement between two district judges sufficed” to establish the difference of opinion needed to establish the credentials for an appeal, “the floodgates would be opened to virtually unlimited interlocutory appeals given the number of sitting district judges,” Kennelly wrote. “And this would be so even were the argument confined to a disagreement between two judges within a district, particularly when one considers that the Northern District of Illinois has 21 active and 11 senior district judges.”
Kennelly said the railroad failed to show how the appeal would quicken the litigation, while also noting it filed its request for appeal six weeks after Kennelly’s March 15 opinion, a delay he said “adds further weight” to his conclusion that pre-emption isn’t appropriate. And although BNSF argued it could face a “crippling” liability if it is made to pay damages for the alleged BIPA violations, “this point was made nowhere — not even once, not even in passing — in the two briefs BNSF filed on the motion for summary judgment.”
Suggesting Kennelly found BNSF could be vicariously liable for Remprex employees’ conduct, he wrote, is “a mischaracterization” of his ruling because he “denied summary judgment based on conflicting evidence regarding BNSF's direct involvement in registering drivers.”
Kennelly noted BNSF never argued BIPA doesn’t permit vicarious liability, meaning it forfeited that point, at least as a basis for getting the interlocutory appeal approved.
BNSF is represented in the case by attorneys Elizabeth B. Herrington and Alex D. Berger, of the firm of Morgan Lewis and Bockius, of Chicago.
Rogers is represented by attorneys Brendan Duffner, Myles McGuire, Evan M. Meyers and David L. Gerbie, of the firm of McGuire Law P.C., of Chicago.