After a judge had overturned their $228 million jury award in the first and only biometrics privacy class action in Illinois to make it to trial, lawyers representing tens of thousands of truck drivers have agreed to accept $75 million from freight railroad giant BNSF in a settlement to end the long running court fight over claims BNSF had improperly scanned the drivers' fingerprints.
Those plaintiffs' lawyers are expecting to receive more than $27 million under the deal, while individual drivers included in the class action are expected to receive at least $1,000 each.
On Feb. 26, attorneys with the plaintiffs' firms of McGuire Law P.C. and Loevy & Loevy, both of Chicago, filed a motion in Chicago federal court to end the sprawling legal actions against BNSF under the stringent Illinois Biometric Information Privacy Act (BIPA).
The settlement would end concurrent lawsuits pending under similar claims in both federal court and Cook County Circuit Court, according to the motion.
The two sides had announced the completion of a deal last September. However, they did not reveal any of the details in court until the Feb. 26 filing.
The court battles between BNSF and the plaintiffs' legal team, on behalf of named plaintiff Richard Rogers, began in 2019, when Rogers first filed suit in Cook County Circuit Court. The lawsuit specifically accused BNSF of violating the privacy rights of truckers under the BIPA law by requiring them to scan handprints to verify their identity when accessing secured BNSF rail yards in Cicero and elsewhere in Illinois, without first obtaining written authorization or providing notices allegedly required under the law concerning the scans.
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.
Such promise of potentially large, relatively easy paydays have produced thousands of class action lawsuits in Cook County and other Illinois state and federal courts from a growing cadre of plaintiffs' law firms, including the McGuire firm.
While some class actions against tech giants like Facebook and Google have produced headline-grabbing settlements worth hundreds of millions of dollars, the overwhelming bulk of the lawsuits have been directed at employers, accusing them of violating the BIPA law in the way they may require workers to scan fingerprints or other so-called biometric identifiers when punching the clock or accessing secured facilities.
Faced with risk of tremendous payouts and little hope for success in defending against the lawsuits under the Illinois Supreme Court's interpretations of the law, virtually all companies targeted as defendants in BIPA class actions have opted to settle out of court.
However, in 2022, BNSF opted to take the case against them to trial, becoming the first and only BIPA defendant to this point to do so. At the conclusion of that trial, a jury ordered BNSF to pay $228 million.
That trial, however, was only over a portion of the claims against them. Earlier, U.S. District Judge Matthew F. Kennelly had carved off a portion of the claims under a certain section of the BIPA law, and sent those claims back to Cook County court.
In so doing, Kennelly had applied the reasoning set up under a decision from the U.S. Seventh Circuit Court of Appeals concerning which kind of BIPA claims could be pressed in federal court.
Specifically, the federal appeals court ruling centered on so-called Article III standing, a constitutional threshold which requires plaintiffs to demonstrate they were actually harmed in some way to press legal claims in federal court.
Illinois state courts, which are established under the Illinois state constitution, do not carry such standing requirements, a legal doctrine that undergirded the Illinois Supreme Court's interpretation of the BIPA law allowing no-injury class actions to proliferate under that law.
In the 2020 appeals court ruling, the judges said certain alleged violations of BIPA can be read to have caused "concrete" and specific harms. Those claims, they said, can remain in federal court.
But other claims, for which plaintiffs can't demonstrate they were actually harmed by biometric data collections, can't hold up under Article III standing. But rather than dismiss the lawsuit, the Seventh Circuit judges said the no-injury claims can be severed, and sent back to Cook County and other state courts, while the "concrete" injury claims would remain in federal court.
Under that regime, BNSF faced concurrent actions in both Cook County court and Chicago's federal district court before Kennelly.
According to the settlement motion, the Cook County Circuit Court action was nearing trial, but that was placed on hold when the parties revealed they were nearing a settlement to end both the federal and state court actions.
Meanwhile, in federal court, BNSF won a key victory in summer 2023, when Kennelly threw out the jury's $228 million award, agreeing with BNSF that courts had discretion to determine damages under the BIPA law, and weren't locked into a straight multiplication.
For their part, plaintiffs had also asked Kennelly to toss out the $228 million figure, but to replace it with a total of at least $800 million, which they said was more in keeping with the Illinois Supreme Court's finding that damages could be assessed at $1,000 or $5,000 per scan.
In the motion for settlement, the plaintiffs specifically noted they risked potentially getting less than $75 million under a different damages calculation. They also noted the risk of a lesser payout on appeal, and additional costs from potentially years of further litigation.
According to the settlement motion, Cook County Circuit Judge Pamela Meyerson would be asked to grant final approval of the settlement, following a hearing at which she and Judge Kennelly would participate.
The settlement motion indicated 45,600 truckers could be included in the class action, and each could receive a payment of at least $1,000.
According to the settlement motion, plaintiffs' lawyers will be allowed to seek fees of up to 36% of the total settlement fund. If the judge ultimately approves that fee request, they would receive $27 million.
The plaintiffs are represented by attorneys Myles McGuire, Evan M. Meyers, David L. Gerbie and Brendan Duffner, of McGuire Law; and Jon Loevy, Michael I. Kanovitz and Tom Hanson, of Loevy & Loevy, all of Chicago.
BNSF is represented in the settlement by attorneys Michael J. Gray and Efrat R. Schulman, of Jones Day, of Chicago.