After a jury ordered it to pay $238 million for violating a state biometric privacy law, BNSF has asked a federal judge to grant it a new trial.
The verdict against the railroad operator, issued Oct. 12, 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. The money was awarded to a group of about 45,000 truck drivers who claim BNSF illegally required them to scan 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.
On Nov. 9, attorneys Elizabeth B. Herrington and Alex D. Berger, of Morgan Lewis and Bockius, of Chicago, filed a motion on behalf of BNSF, renewing a push for judgment in its favor or to be granted a new trial or have the damages award reduced. The Washington, D.C., office of Weil, Gotshal & Manges also represented the railroad.
David Gerbie
BNSF called the penalty “a nine-figure windfall despite (plaintiffs’) admission that they suffered no actual harm,” that was not supported through trial evidence and cannot stand against the Constitution and multiple federal laws.
At trial, BNSF argued it never actually scanned the drivers’ prints because its vendor, Remprex, provided and operated the biometric fingerprint scanners. BNSF said it should not be held vicariously liable for Remprex’s alleged failures to abide by the Illinois BIPA law, and restated that position in the Nov. 9 motion.
“No rational jury could conclude that plaintiff offered sufficient evidence to support a finding of liability or, even assuming that BNSF violated BIPA, that BNSF did so recklessly or intentionally,” BNSF said in a memorandum filed in support of its motion. “The unrebutted evidence — including testimony from Remprex’s own representatives — showed that Remprex was the entity that collected the biometrics, that Remprex maintained the data on databases that BNSF could not and did not access, and that Remprex carried out this work as an independent contractor with little or no oversight from BNSF.”
The carrier noted Remprex Chief Solutions Officer Timothy Ash testified as much during the trial, while BNSF General Director of Hub Operations Chuck Burress said the railroad at no point could even access drivers’ personal data. It said BIPA doesn’t allow for vicarious liability and, even if it did, there wasn’t sufficient evidence to make such a connection.
Insisting the truckers suffered no legal harm, BNSF said federal law bars such a large damage award, including due process and excessive fines protections, as well as federal laws governing motor carriers and railroads that should pre-empt state laws like BIPA. BNSF further maintained damages in this type of action are discretionary and, as such, it was deprived a right for the jury to determine the penalty rather than to agree for a set dollar amount along with the class’ contention there were 45,600 reckless or intentional BIPA violations in the relevant period.
Finally, BNSF predicted the Illinois Supreme Court will soon rule claims such as the ones from the named plaintiff and several class members are time barred, which would mean they should be dismissed and the class decertified.
Representing the truckers in the action has been David Gerbie, an attorney with the firm of McGuire Law P.C., of Chicago, and his fellow attorneys Brendan Duffner, Myles McGuire and Evan M. Meyers, along with attorneys from the Chicago firm of Loevy & Loevy.
In a motion filed Oct. 12, Gerbie and his colleagues argued the damages should actually be calculated at more than $800 million because they said 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.
Further, the lawyers argued Judge Kennelly 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.