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

By Danielle Kays and Danny Riley, Legislation Clerk

Seyfarth Synopsis: BNSF Railway seeks a new trial pursuing the verdict from it in the initially ever jury verdict in an Illinois Biometric Data Privacy Act (“BIPA”) class action.  BNSF contends that the verdict, which resulted in a court award of $228 million in damages, is unconstitutional and unreasonable offered the class customers endured no real hurt.

As a refresher, beneath BIPA, biometric information and facts is any info “regardless of how it is captured, transformed, saved, or shared, based mostly on an individual’s biometric identifier applied to recognize an personal.” 740 ILCS §14/10. The Act delivers a personal entity may perhaps not “collect, seize, order, obtain through trade, or otherwise obtain” this info with out educated consent. 740 ILCS §14/15(b).  To comply with this condition regulation, corporations should give informed, published consent before the capture, use and storage of biometric details, as nicely as notices specifying the company’s knowledge collection tactics. Damages for each negligent violation can rise to $1,000, with reckless or intentional violations currently being capped at $5,000.

Very last month, a Chicago jury read the very first at any time jury trial of a BIPA course motion in the case Rogers v. BNSF Railway Organization.  At difficulty was whether–and to what degree–BNSF could be held vicariously liable under the BIPA for perform by a 3rd-party seller that operated finger scanning technologies.  Despite BNSF’s argument that the railway’s seller was the entity that gathered the employees’ biometric details (and not the railway), the jury found that the railway was liable for close to 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 nine-determine windfall regardless of their admission that they experienced no true harm was not supported by the proof at demo.”

While BNSF promises that the ruling is unconstitutional, it also argues that the proof proposed to the jury was not ample to assistance a acquiring of liability.  The railway argues that even in the situation that there is a finding of legal responsibility, any violations would constitute carelessness, relatively than reckless or intentional violations.  Should BNSF efficiently argue that its violations have been negligent, damages may perhaps nevertheless be upwards of $45 million.

BNSF also observed the Illinois Supreme Court’s pending selection in Cothron v. White Castle, which will make your mind up whether BIPA statements accrue “each time a private entity scans a person’s biometric identifier and each individual time a non-public entity transmits these kinds of a scan to a third celebration, respectively, or only on the to start with scan and initial transmission.” 20 F.4th 1156, 1167 (7th Cir. 2021).  If the Illinois Supreme Court sides with the defendant in White Castle, BNSF argues that the plaintiff’s assert will be dismissed and the class decertified.

Ought to the Court deny BNSF’s motion for a new trial, the railway earlier stated it plans to charm the verdict.

The time is now for employers to conduct inside audits to make absolutely sure they are BIPA compliant.

BIPA Compliance

•  Obtain a created consent type from people if you intend to acquire, use, retail store, or disclose any particular biometric facts.

•  Notify folks in composing that the facts is staying gathered or stored and the reason and size of time for which the biometric identifier will be collected, saved, and utilised.

•  Make and keep a retention agenda for biometric data retention and pointers for forever destroying biometric information.

For more info about the Illinois Biometric Information Privacy Act, and how this improvement could have an impact on your organization, make contact with the authors, your Seyfarth lawyer, or Seyfarth’s Place of work Privateness & Biometrics Follow Team.