After becoming the first business slapped with a massive jury verdict under Illinois’ biometrics privacy law, BNSF Railway is asking a federal judge to either slash the $238 million payout the jury ordered, or at least give them another chance at trial before a different jury.
However, America’s largest railway operator appears to have pinned much of its strategy to an unusual hope – a recent Illinois Supreme Court ruling that by many accounts has otherwise swung wide the gates to gargantuan payouts worth billions of dollars for lawsuits brought under the Illinois Biometric Information Privacy Act.
Months before the state high court delivered its controversial decision, the lawyers representing more than 45,000 truck drivers included in the class action against BNSF had already protested the verdict, asking the judge hearing the case to nearly quadruple the amount.
But for its part, BNSF has indicated in its most recent filing that it believes it can instead use that same Illinois Supreme Court ruling to persuade the judge and jury potentially to decrease the verdict.
In October, a jury in federal court handed down its verdict in the first trial of its kind in Illinois history under the BIPA law.
The money was awarded to a class of tens of thousands of 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.
Within weeks, attorneys for both parties had filed motions asking the judge to alter the verdict or, at least, order a new trial.
On BNSF’s side, attorney Elizabeth B. Herrington and others with the firm of Morgan Lewis and Bockius filed motions seeking to undo what it called a “nine-figure windfall” to plaintiffs who admitted “they suffered no actual harm.”
They asserted the verdict was not supported by evidence submitted at trial, and should be knocked down under the Constitution and multiple federal laws.
BNSF has consistently contended it should not be made to pay under the BIPA claims, because its biometric fingerprint scanners were provided and run by its vendor, Remprex. BNSF asserts Remprex should be the correct target for any legal actions by the truckers related to fingerprint scans.
On the other side, however, plaintiffs’ attorneys David Gerbie of McGuire Law P.C. and Jon Loevy of Loevy & Loevy, and others with those Chicago firms, argued the jury verdict was actually far too low.
They contended the jury impermissibly accepted calculations offered by BNSF, limiting them to recover damages under BIPA only for one fingerprint scan for each truck driver.
The plaintiffs argued BNSF should be on the hook for each and every time the truckers scanned their fingerprints at BNSF’s Illinois railyards without providing consent or being provided notices, as allegedly required by the BIPA law.
They noted BIPA law allows plaintiffs to demand as much as $5,000 per violation. Thus, the plaintiffs argued, the jury award should have amounted to at least $807 million, if not more.
U.S. District Judge Matthew F. Kennelly has indicated he is nowhere near being ready to rule on the various post-trial motions submitted by BNSF and the plaintiffs.
But in the meantime, the Illinois Supreme Court delivered two bombshell rulings, which could leave the initial jury verdict on shakier ground.
In February, the state high court first confirmed that plaintiffs can demand damages for violations dating back five years, not just one, as defendants had hoped.
And then, on Feb. 17, a sharply divided state Supreme Court followed up with a ruling declaring that plaintiffs are, indeed, entitled to demand payment of $1,000-$5,000 for each and every biometric scan conducted by a business without notice or consent.
The 4-3 ruling drew a sharp dissent, as dissenting justices said the ruling flies in the face of bedrock legal principles, leaving employers of all types and sizes in Illinois facing potentially “annihilative” damages for no real harm, should their cases proceed to trial.
The majority in the decision, however, said they did not believe that would be the case, believing the courts were still free to fashion awards that could still deliver a strong penalty for violating the BIPA law, without annihilating businesses over potential technical errors or oversights.
Following the Illinois Supreme Court ruling, BNSF’s lawyers appear to have pinned their hopes to undo the verdict on that observation.
While the ruling may appear to be a slam dunk win for plaintiffs, in a brief filed Feb. 23, attorneys for BNSF said they believed the ruling actually can be used to vindicate one of their key interpretations of the law, as well.
The majority decision, they said, “states that it ‘appears that the General Assembly chose to make damages discretionary rather than mandatory under [BIPA].”
“That directly supports BNSF’s argument that damages under BIPA are discretionary, and not mandatory as this Court (Judge Kennelly) concluded," BNSF wrote. "Federal courts are bound by a state supreme court’s resolution of a state-law issue and also must follow the state supreme court’s path on any unresolved issues.
“Accordingly, even if this Court rejects BNSF’s post-trial challenges to the jury’s liability finding, at a minimum it should order a partial new trial limited to determining what amount of damages, if any, should be awarded to Plaintiff,” BNSF wrote.
The plaintiffs have not yet responded to those assertions.
No matter how the question is decided by Judge Kennelly, both sides have indicated in their filings that they are preparing for appeals in the landmark case.