A jury has ordered railroad operator BNSF to pay at least $228 million to a group of about 45,000 truck drivers who claim the logistics company illegally required them to scan their handprints to verify their identity when entering secured railyards without first obtaining their consent or providing them notices about what might happen with their scanned prints, as allegedly required under Illinois’ stringent biometrics privacy law.
However, the actual total that BNSF may ultimately pay remains unclear, as the railroad claims the jury got the law wrong, and the plaintiffs have said they believe the law should actually be interpreted to force BNSF to pay more than $800 million, four times what the jury ordered.
The verdict, rendered Oct. 12 in Chicago federal court, marked the first of its kind in any of the thousands of class action lawsuits filed in Illinois courts under the law known as the Illinois Biometric Information Privacy Act (BIPA.)
Attorney David Gerbie
Despite filings pushing for greater damages, plaintiffs’ attorneys said they were “very pleased with the verdict.”
“It shows that privacy is important and that companies must comply with the law, and will be held accountable if they don’t,” said David Gerbie, an attorney with the firm of McGuire Law P.C., of Chicago.
The McGuire firm worked with the Chicago firm of Loevy & Loevy to lead the class action and bring the case to a verdict.
BNSF, however, immediately vowed appeal.
“We disagree with and are disappointed by the jury’s verdict and think the decision reflects a misunderstanding of key issues,” BNSF spokesperson Lena Kent said in an emailed statement.
The verdict wrapped up the trial that had begun Oct. 4, and spanned nearly a week.
The case, however, dates back to 2019, when truck driver Richard Rogers first filed suit against BNSF.
The lawsuit accused BNSF of violating the BIPA law by requiring truck drivers to scan their fingerprints when entering BNSF rail yards. The lawsuit asserted the company was required to first secure written permission from the drivers to scan their prints, and to provide the drivers with notices concerning why the fingerprint scans were required, what the company would do with the scanned prints, and how the scanned prints would ultimately be destroyed.
The plaintiffs sought to expand the lawsuit to include tens of thousands of other truck drivers who also had scanned their fingerprints at BNSF facilities in recent years.
The lawsuit’s claims were similar to those leveled against other hundreds of other companies in thousands of other BIPA-related class action lawsuits filed in Illinois courts since 2015.
While the BIPA law was enacted in 2008, the law sat largely unnoticed for years before a group of privacy class action lawyers, including the McGuire firm, began filing class actions by the scores against employers they claimed violated the rights of customers, employees and contractors.
Some of the lawsuits have taken aim at big tech companies, like Facebook and Google, resulting in headline-grabbing settlements worth hundreds of millions of dollars over claims those companies improperly scanned the faces of people who were pictured in images uploaded to social media and photo sharing platforms, like Facebook and Google Photos.
But the overwhelming bulk of the class actions have been leveled against Illinois employers of all types and sizes, claiming they improperly required workers and contractors to scan fingerprints or other biometric identifiers to verify their identity when punching the clock at the beginning and end of work shifts, or when accessing secure workspaces, like medicine lockers in hospitals, cash rooms at retail stores, or rail yards, as in the Rogers case against BNSF.
Rogers’ lawsuit survived multiple attempts by BNSF to get it tossed.
In those efforts, BNSF principally argued it should be protected from the lawsuits by federal railroad safety laws, which the company said require it to implement security measures, including fingerprint scans for those entering and exiting their rail yards, to abide by federal interstate transportation security standards.
Further, BNSF argued it never actually scanned the drivers’ prints. Rather, BNSF asserted the scans were conducted by its vendor, Remprex, which provided and operated the biometric fingerprint scanners used by the truckers. BNSF said it should not be held vicariously liable for Remprex’s alleged failures to abide by the Illinois BIPA law.
U.S. District Judge Matthew Kennelly, however, rejected BNSF’s arguments, certified a class of thousands of truckers, and sent the case to a jury for trial.
At trial, the jury also rejected BNSF’s arguments, and found in favor of the plaintiffs on the key claims.
In the verdict, the jury determined BNSF had “committed 45,600 reckless or intentional violations” of the BIPA law, and ordered the company to pay $228 million.
However, in a motion also filed Oct. 12, Gerbie and his colleagues argued the damages should actually be calculated at more than $800 million.
Under the BIPA law, plaintiffs can demand damages of $1,000-$5,000 per violation, dependent on if the violations could be considered inadvertent or willful.
In this case, the lawyers from the McGuire and Loevy firms argued BNSF’s alleged failures to provide notice and obtain consent should not be considered accidental. They said BNSF was aware of the law’s requirements.
In the Oct. 12 filing, the plaintiffs’ lawyers asserted they believe the judge had improperly declined to allow the jury to take into consideration that BNSF should be held accountable for “every scan” of the truckers’ fingerprints. They estimated they could document more than 1 million allegedly unlawful trucker fingerprint scans, meaning they should be entitled to much more than what the jury ultimately awarded.
Meanwhile, BNSF has continued to contend the plaintiffs’ interpretation of the law has been flawed, and the case should have never gone to trial.
In a filing seeking a judgment in their favor as a matter of law, BNSF continued to assert the plaintiffs’ claims are preempted by “at least three different federal laws and prior U.S. Supreme Court rulings regarding transportation safety regulations.
Further, the railroad argued, federal law is considered “paramount and exclusive at ‘railroad property,’” – in this case, the rail yards where the fingerprint scans allegedly took place.
And the railroad continued to assert the plaintiffs’ claims were wrongly directed at them, rather than Remprex. They asserted they presented evidence showing they “expressly required Remprex to follow all applicable laws” in scanning the fingerprints. If the Illinois BIPA law wasn’t followed, then the fault lies with Remprex, not BNSF, the railway company argued.
Further proceedings on the case, however, will likely center heavily on the question of damages, and how much BNSF may ultimately be ordered to pay.
On that question, a forthcoming Illinois Supreme Court decision may play a large role. In that case, known as Cothron v White Castle, the state high court is set to decide how many such fingerprint scans actually qualify as an individual violation.
Plaintiffs have argued that any scan of a fingerprint conducted without first obtaining consent and providing notice should be counted as a new and separate violation subject to BIPA damages.
The defendant in that case, fast food purveyor White Castle, has argued only the first such scan should count.
Supreme Court justices appeared divided on the question during oral arguments, with some justices expressing skepticism concerning the plaintiffs’ reasoning, that even moderately sized businesses should face the risk of ruin from such claims.
Lawyers typically stand to gain a cut of about a third of all settlements and verdicts.
Faced with potentially massive payouts, a growing number of businesses have chosen to settle, with deals ranging from hundreds of thousands of dollars to as much as $50 million. That way, they can end the class action, and have some control over how much they pay, rather than risk going to a jury at trial.
BNSF, however, opted to become the first company to press its case to a jury.
The company indicated it will seek to have the verdict overturned.
BNSF has been represented in the case by attorneys Elizabeth B. Herrington and Alex D. Berger, of the firm of Morgan Lewis and Bockius, of Chicago.
Rogers and his fellow truckers are represented by Gerbie and his colleague attorneys Brendan Duffner, Myles McGuire and Evan M. Meyers, of the McGuire firm, and attorneys Michael Kanovitz and Jon Loevy, of Loevy & Loevy.