Two months since persuading a judge to toss out a $228 million judgment in the state’s first trial over class action claims under Illinois’ stringent biometrics privacy law, freight railroad BNSF and trial lawyers representing tens of thousands of truck drivers have apparently reached a settlement.
On Sept. 18, U.S. District Judge Matthew F. Kennelly issued a brief order addressing motions recently entered by both parties, ostensibly to limit the entry of evidence and testimony in a potential new trial.
Instead, the judge noted the parties had reached a deal to end the dispute, as the judge referenced “the parties’ execution of a binding term sheet.”
The judge’s order does not discuss the terms of any settlement, but noted it had been executed on Sept. 15.
The judge denied the pending motions as moot in light of the settlement, and instructed the parties to file a motion for preliminary approval of the settlement by Oct. 20, with a hearing scheduled for Oct. 31. Settlement terms are expected to be revealed and discussed at that time.
If ultimately approved, the settlement would end a long-running court fight with hundreds of millions of dollars at stake.
The verdict, entered in October 2022 against the freight rail giant, had marked the conclusion of the first trial of its kind in any of the thousands of class action lawsuits filed in Illinois courts under the BIPA law.
Since 2015, those class actions have targeted a host of businesses, of all types and sizes. Some of the suits have taken aim at tech giants, like Facebook and Google, resulting in headline-grabbing settlements.
But the overwhelming bulk of the class actions have been directed at employers and vendors, accusing them of violating the BIPA law in the way they require workers to scan fingerprints or other so-called biometric identifiers to verify their identities when punching the clock or when accessing secured facilities.
Under the law, plaintiffs are allowed to seek damages of $1,000-$5,000 per violation. Under recent Illinois Supreme Court decisions, those individual damages have been defined as each time an allegedly improper scan takes place, extending back over a period of 5 years. So, when multiplied across workforces of hundreds or thousands of people, each scanning their biometrics multiple times per day, companies could face potentially massive payouts – damages some judges have called “astronomical” and “absurd” – worth hundreds of millions or even billions of dollars, should their cases proceed to trial.
Further, the Illinois Supreme Court has held that plaintiffs don’t need to prove they were ever actually harmed by the biometric scans before leveling those damage claims against a company.
Faced with such uncertainty, to this point, virtually all other companies targeted as defendants in BIPA class actions have opted to settle for a relatively lower payout than roll the dice at trial.
However, in 2022, BNSF opted to take the case against them to trial.
In the lawsuit against BNSF, truck driver Richard Rogers had accused BNSF of allegedly requiring him and all other truck drivers entering BNSF rail yards in Illinois to scan their fingerprints without first securing their written permission to conduct the scans or providing them notices about what might happen with the scanned prints.
Rogers and the class of more than 45,000 other truck drivers were represented in the case by attorneys with the firms of McGuire Law P.C. and Loevy & Loevy, both of Chicago.
Following the trial, both parties asked the judge to toss out the jury’s damages award. BNSF asserted it was too high, and that the jury wrongly acted under the presumption that it did not have the discretion to award less than the damages allowed per violation under the law.
Plaintiffs, on the other hand, asserted the verdict was too low, and should have been at least $800 million.
After the jury ruled for the drivers, Kennelly also rejected BNSF’s attempt to dismiss the verdict entirely. The judge rejected another attempt by BNSF to argue it shouldn’t be held liable for the truck driver hand scans, because its vendor, Remprex, had actually provided and operated the biometric fingerprint scanners. The judge also rejected BNSF’s arguments that the class action under BIPA was pre-empted by federal law.
However, the judge in July tossed out the jury’s $228 million damages award, agreeing with BNSF that damages should be at the court’s discretion.
However, even as both sides appeared to be preparing for trial, they also were engaged in settlement talks. Those talks ultimately proved fruitful, resulting in an apparent deal to end the litigation.
BNSF was represented at trial by attorneys Elizabeth B. Herrington and Alex D. Berger, of Morgan Lewis and Bockius, of Chicago.
In August, BNSF replaced them with attorney Bethany Kaye Biesenthal and others from the firm of Jones Day, of Chicago.