A federal judge has vacated a jury’s decision to order BNSF Railway to pay $228 million for requiring truck drivers to scan handprints to verify their identities at secured rail yards, which they claimed violated their rights under Illinois' biometric privacy law.
The verdict against the railroad operator, which had been issued Oct. 12, 2022, 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 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.
Each of 45,600 truckers potentially was in line for $5,000 in damages.
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.
Representing the truckers in the action, behind named plaintiff Richard Rogers, has been David Gerbie, an attorney with the firm of McGuire Law P.C., of Chicago, and his colleagues Brendan Duffner, Myles McGuire and Evan M. Meyers, along with attorneys from the Chicago firm of Loevy & Loevy. They filed a motion to amend the judgment and for a partial new trial, in a bid to dramatically increase the number of violations that figured into the damages calculations, which could increase the potential payout to more than $800 million.
U.S. District Judge Matthew Kennelly issued an opinion June 30 granting BNSF’s motion for a new trial on damages, but otherwise denying the motions from both parties.
“Although Remprex employees were the ones who collected or captured the drivers' fingerprints, a reasonable jury could find that BNSF ‘otherwise obtained’ the data,” Kennelly wrote. “Three witnesses — BNSF employee (Chuck) Burris, Remprex employee (Timothy) Ash, and Remprex CEO (Remy) Diebes — testified that BNSF owned the data. Burris also agreed that BNSF obtained the data because it was stored on computer servers that BNSF owned, and Ash similarly testified that BNSF owned the servers and kept those servers in BNSF railyards in Illinois. Ash and Diebes also stated that the data was not Remprex's to sell or treat as an asset, and even though BNSF did not have direct access to the database itself, it could ask Remprex to provide any it at any time and Remprex would be obligated to do so.”
Beyond that, Kennelly said, the jury reviewed “sufficient evidence” supporting a theory of vicarious liability should the jury have considered Remprex an agent of BNSF rather than an independent contractor. He also said the jury had reason to find BNSF intentionally or recklessly violated BIPA, which state lawmakers enacted in 2008.
“Upon learning in April 2019 that this system of delegating compliance to Remprex may have led it to overlook and violate an applicable law, BNSF initiated discussions with Remprex about the BIPA’s requirements and later sued Remprex,” Kennelly wrote. “Yet BNSF continued collecting biometrics for nearly a year, until March 2020, and BNSF employee Burris stated that the decision to stop was driven by concerns about COVID-19 and Rogers's suit. Although BNSF is correct that it was not required to stop collecting biometrics immediately upon learning of the lawsuit, the Court cannot say it is unreasonable for the jury to infer conscious disregard or utter indifference — after all, at that point BNSF knew that collecting biometric data may violate BIPA but chose to continue doing so for almost another year.”
Kennelly noted he’d already rejected BNSF’s arguments about three federal transportation laws pre-empting Rogers’ BIPA claim when he denied summary judgment and wouldn’t change his opinion.
Turning to damages, Kennelly agreed with BNSF that BIPA penalties are to be at the jury’s discretion after a finding of liability. He said the railroad correctly asserted his decision should factor the likely ruling of the Illinois Supreme Court and noted the state high court’s Feb. 17 opinion, a 4-3 ruling in which the Illinois Supreme Court declared plaintiffs are entitled to demand payment of $1,000 or $5,000 for each and every biometric scan found to violate BIPA.
The court didn’t directly address whether damages are discretionary, and Rogers asked Kennelly to agree the Illinois Supreme Court only intended to allow damage reductions when awards “reached ‘astronomical’ heights because of multiple or repeated accruals,” Kennelly wrote.
But Kennelly said the statutory text doesn’t support Rogers’ distinctions and ordered a new trial limited to the question of damages.
Rogers also wanted Kennelly to agree BNSF violated BIPA three distinct times by making each driver scan three fingers when registering, and also to say each subsequent scan to access BSNF facilities constituted new, actionable scans. He wanted the court to make BNSF pay $5,000 for each of 136,800 violations.
At trial, Rogers’ lawyers said “they intended to argue that BNSF committed 1,171,608 BIPA violations,” Kennelly wrote, noting he rejected those calculations during the trial because of a failure to give timely notification of those plans.
Kennelly also rejected Rogers’ push for prejudgment interest, a move he said should “guide the parties in preparation” for the new damages trial.
“Because there were genuine issues of material fact, and because this was the first BIPA case to go to trial, BNSF’s disputes regarding its legal obligations were honest rather than vexatious or unreasonable,” Kennelly wrote. “Consequently, the court concludes that Rogers would not be entitled to prejudgment interest even had the court upheld the damages award.”
Kennelly said a July 7 status hearing would establish a trial date and include discussions about a possible settlement.