BNSF Settles Illinois Biometric Privacy Case for $75 Million (1)

BNSF Railway Co. Monday agreed to pay $75 million to settle a landmark Illinois biometrics privacy case after a jury found the company violated the privacy rights of thousands of employees, a decrease from an initial award $228 million.

“The Settlement Agreement before the Court, if approved, will resolve the most advanced claims ever prosecuted under the Illinois Biometric Information Privacy Act,” said the proposed agreement, which is unopposed by both sides.

“The terms of the Settlement, which include a Settlement Fund providing significant cash compensation to the Settlement Class Members, meet and exceed the applicable standards of fairness,” it said.

The case is the first BIPA case to go to trial and the first to wrestle with the issue of just how much money a company found to violate the BIPA law should pay. The case was also settled after the Illinois Supreme Court, in Cothron v. White Castle System Inc., ruled BIPA penalties were discretionary. Citing that decision, BNSF had argued the penalty could be as little as zero because the plaintiffs suffered no harm.

Both sides can claim a degree of satisfaction from Monday’s proposed agreement. After a jury trial, US District Court for the Northern District of Illinois Judge Matthew Kennelly initially imposed on BNSF a $228 million penalty—before ordering a new trial on the damages amount—but Monday’s agreement cut that amount to $75 million.

Under the deal, class members will receive more money than other settled BIPA class action lawsuits in Kennelly’s district. The agreement estimated each class member will receive approximately $1,000, more than the plaintiffs in Davis v. Heartland Employment Services LLC, who each received $490.40. In Figueroa v. Kronos Inc., each class member received $88.55.

Settlement Avoids Second Trial

The Illinois law requires companies to inform individuals in writing if their fingerprints or other biometric indicators will be collected or stored and for how long, obtain in writing permission to collect the identifiers, and publish a retention schedule that includes information on how and when the information will be permanently destroyed.

More than 45,000 truck drivers whose fingerprints the Berkshire Hathaway Inc. subsidiary scanned for identity verification sued, claiming BIPA violations. After a jury sided with the truck drivers and found BNSF liable, Kennelly awarded plaintiffs $228 million based on the product of the number of class members (45,600) and the statutory fine for a reckless violation ($5,000).

But Kennelly then ruled a jury, not a judge, should set the fine and ordered a second trial to determine damages. The second trial was scheduled to start Oct. 2, 2023, but both sides reached a preliminary settlement in principle in September. It then took months for both sides to hammer out a final agreement.

Attorneys in the case agreed “to limit their request for attorneys’ fees to no more than 35% of the Settlement Fund, plus their reasonable litigation costs and expenses,” the proposed agreement said.

The deal would be effective after review and approval by Kennelly.

The case is Rogers v. BNSF Railway Co., N.D. Ill., No. 19-cv-03083, unopposed settlement 2/26/24.