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First Illinois Biometric Privacy Trial Ends in BNSF Loss (2)

Oct. 12, 2022, 8:38 PMUpdated: Oct. 12, 2022, 11:30 PM

A class of more than 45,000 truck drivers won a $228 million judgment in the first biometrics privacy class action to go to trial in Illinois, after a jury found that BNSF Railway Co. violated state law by collecting employee fingerprints without proper consent.

Jon Loevy, the lead trial attorney for the plaintiffs, confirmed the verdict to Bloomberg Law. BNSF’s loss marks the first look at how jury trials might play out in similar Biometric Information Privacy Act class actions.

“The verdict confirms that people care about privacy and they care when those rights are violated,” Loevy said.

BNSF spokesperson Lena Kent said the company plans to appeal.

“We disagree with and are disappointed by the jury’s verdict and think the decision reflects a misunderstanding of key issues,” Kent said.

The lawsuit was filed by truck driver Richard Rogers, who alleged that he was required to scan his fingerprint to confirm his identity and access BNSF facilities. The company failed to disclose the purpose of collecting fingerprints and did not publish a data retention or destruction policy as required by law, Rogers alleged.

BNSF argued in subsequent filings that it should not be held liable for biometric data collection conducted on its behalf by a third-party contractor, Remprex LLC., an argument Judge Matthew Kennelly of the US District Court for the Northern District of Illinois rejected in September.

After a five-day trial, the jury found that BNSF had recklessly or intentionally violated BIPA 45,600 times, one violation per class action member. The decision subjects BNSF to the maximum BIPA penalty of $5,000 per violation.

BIPA, enacted in 2008, is the first state law addressing biometric privacy, turning Illinois into a legal battleground for companies accused of improperly collecting fingerprints, eye scans, and other biological data from consumers or workers. A pending case in the Illinois Supreme Court will determine whether companies are liable for just the first violation of an individual’s BIPA-protected rights, or for all subsequent violations.

McGuire Law PC and Loevy & Loevy represent Rogers. Morgan, Lewis & Bockius LLP and Weil, Gotshal & Manges LLP represent BNSF.

The case is Rogers v. BNSF Ry. Co., N.D. Ill., No. 19-cv-03083, verdict 10/12/22.

(Updated with BNSF comment.)

To contact the reporter on this story: Skye Witley at switley@bloombergindustry.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com