September 23, 2023


Equality opinion

BNSF Seeks New Trial After First Ever BIPA Jury Verdict Because Damages Are Unconstitutional And Unreasonable

BNSF Seeks New Trial After First Ever BIPA Jury Verdict Because Damages Are Unconstitutional And Unreasonable

By Danielle Kays and Danny Riley, Regulation Clerk

Seyfarth Synopsis: BNSF Railway seeks a new trial next the verdict from it in the to start with ever jury verdict in an Illinois Biometric Information Privateness Act (“BIPA”) class action.  BNSF contends that the verdict, which resulted in a court docket award of $228 million in damages, is unconstitutional and unreasonable provided the course associates experienced no genuine damage.

As a refresher, less than BIPA, biometric facts is any data “regardless of how it is captured, transformed, stored, or shared, dependent on an individual’s biometric identifier utilised to recognize an particular person.” 740 ILCS §14/10. The Act supplies a non-public entity may not “collect, seize, acquire, get through trade, or otherwise obtain” this info without having knowledgeable consent. 740 ILCS §14/15(b).  To comply with this state law, organizations have to provide educated, composed consent in advance of the seize, use and storage of biometric information and facts, as perfectly as notices specifying the company’s knowledge assortment methods. Damages for every negligent violation can rise to $1,000, with reckless or intentional violations remaining capped at $5,000.

Previous month, a Chicago jury listened to the initially ever jury trial of a BIPA class motion in the case Rogers v. BNSF Railway Organization.  At difficulty was whether–and to what degree–BNSF could be held vicariously liable beneath the BIPA for perform by a third-occasion seller that operated finger scanning engineering.  Despite BNSF’s argument that the railway’s vendor was the entity that gathered the employees’ biometric information (and not the railway), the jury observed that the railway was liable for somewhere around 45,600 reckless or intentional violations.  Now, in its movement for a new trial, BNSF argues that the “unprecedented judgment awarding plaintiff and the course a 9-figure windfall even with their admission that they endured no true damage was not supported by the evidence at trial.”

Although BNSF promises that the ruling is unconstitutional, it also argues that the evidence proposed to the jury was not plenty of to aid a discovering of legal responsibility.  The railway argues that even in the circumstance that there is a acquiring of legal responsibility, any violations would constitute carelessness, somewhat than reckless or intentional violations.  Should BNSF properly argue that its violations were being negligent, damages could still be upwards of $45 million.

BNSF also mentioned the Illinois Supreme Court’s pending selection in Cothron v. White Castle, which will decide regardless of whether BIPA promises accrue “each time a non-public entity scans a person’s biometric identifier and every time a private entity transmits these types of a scan to a 3rd party, respectively, or only on the very first scan and 1st transmission.” 20 F.4th 1156, 1167 (7th Cir. 2021).  If the Illinois Supreme Court docket sides with the defendant in White Castle, BNSF argues that the plaintiff’s assert will be dismissed and the course decertified.

Ought to the Court docket deny BNSF’s movement for a new demo, the railway previously claimed it plans to attractiveness the verdict.

The time is now for employers to carry out inner audits to make absolutely sure they are BIPA compliant.

BIPA Compliance

•  Obtain a published consent type from men and women if you intend to gather, use, retail outlet, or disclose any individual biometric information and facts.

•  Notify people today in composing that the information is being gathered or saved and the goal and size of time for which the biometric identifier will be collected, saved, and made use of.

•  Develop and keep a retention plan for biometric details retention and pointers for completely destroying biometric data.

For more details about the Illinois Biometric Info Privateness Act, and how this improvement may perhaps impact your organization, get in touch with the authors, your Seyfarth attorney, or Seyfarth’s Office Privateness & Biometrics Follow Team.