By Danielle Kays and James Nasiri

Seyfarth Synopsis: Last week, the first jury trial of an Illinois Biometric Information Privacy Act (“BIPA”) class action case began in the U.S. District Court for the Northern District of Illinois in a case entitled Rogers v. BNSF Railway Company.  Leading up to trial, BNSF contended that, because it hired a third-party vendor to operate its fingerprint scanning technology, BNSF itself could not be vicariously liable for the vendor’s actions.  The Court rejected BNSF’s motion in limine of this argument amounting to a blow to companies’ potential defenses to these types of claims, as it notably emphasizes the vague and flexible nature of the BIPA.  Now, jurors will have the opportunity to consider BNSF’s first-of-its-kind liability argument.

Background on Rogers v. BNSF Railway Co.

Plaintiff Richard Rogers, a truck driver, alleges that BNSF improperly required drivers entering the Company’s facilities to provide their biometric information through a fingerprint scanner.  According to Rogers, BNSF collected drivers’ fingerprints without first obtaining informed written consent or providing a written policy that complied with the BIPA.  Rogers’ class action lawsuit against BNSF Railway Company (“BNSF”) asserts and alleges violations of sections 15(a) and (b) of the BIPA.  Notably, BNSF counters that it did not operate the biometric equipment, and instead a third-party vendor operated the biometric equipment collecting drivers’ fingerprints.

Throughout the course of litigation, BNSF has asserted–with limited success–various defenses to minimize its potential liability under the BIPA.  Initially, the Company moved to dismiss Rogers’ claims, arguing that the BIPA is preempted by three federal statutes that regulate railroad and transportation entities (the Federal Railroad Safety Act, the Interstate Commerce Commission Termination Act, and the Federal Aviation Administration Authorization Act).  However, the District Court denied the motion because it held that the BIPA is a “generally-applicable statute” with no direct connection to the federal transportation laws.  BNSF next moved for summary judgment on various grounds (including that Rogers’ claims were time-barred (a defense currently pending before the Illinois Supreme Court) and that Rogers should have sued BNSF’s biometrics vendor instead), but the Court again rejected these arguments.  Finally, in another blow to BNSF’s defense, the Court certified a class of over 44,000 drivers in March 2022, thereby setting the stage for the first BIPA jury trial in the Act’s history.

District Court Denies BNSF’s Attempt to Exclude Vicarious Liability Arguments

Leading up to this first-of-its-kind BIPA trial, BNSF filed a motion in limine to exclude evidence suggesting that the Company can be held vicariously liable under the BIPA.  In support of this contention, BNSF primarily argued that the BIPA cannot impose vicarious liability because the Act’s text does not define the term “private entity” to include agents or contractors.  The Company further suggested that, to be held liable under the Act, an entity must complete an “active step” of collecting or otherwise utilizing an individual’s biometric information.

The District Court decisively rejected BNSF’s arguments.  First, the Court noted that statutes are interpreted in reference to common law principles, and here, “there is no ‘irreconcilable repugnancy’ between the text of the BIPA and vicarious liability[.]”  The Court emphasized Illinois precedent recognizing the doctrines of agency law and vicarious liability, even in the absence of statutory language providing for the application of such principles.  The Court also noted that BNSF essentially conceded this point when it admitted that a corporation could be vicariously liable under the BIPA for an action by one of its employees.

With respect to the applicable statutory text, the Court further held that the BIPA’s language is broad enough to impose vicarious liability.  Specifically, the Act provides that “[n]o private entity may collect, capture, purchase, receive through trade, or otherwise obtain” an individual’s biometric data.  Given the inclusion of the broad phrase “otherwise obtain,” the Court reasoned that BNSF need not have actually collected biometric information itself to be held liable under the Act.  Finally, the Court labeled BNSF’s “active step” argument a “dubious proposition,” finding that the Company was attempting to add unnecessary language to the BIPA.

Trial Begins with an Emphasis on Vicarious Liability

Tuesday, October 4th marked the first day of the Rogers trial, during which prospective jurors were questioned about their history with workplace biometrics and identity theft.  After jury selection, Rogers’ counsel gave his opening statement, in which he stressed that BNSF is the truly culpable party under these circumstances.  Rogers’ counsel argued that BNSF owned the relevant hardware and made the decisions with respect to the class members’ biometric data.  In response, BNSF’s counsel argued that, while the Company did own the hardware at issue, it merely bought the items required for its vendor to operate, and BNSF’s employees were never involved in collecting the class members’ data.  BNSF’s counsel further highlighted the Company’s contract with the third-party vendor, in which the vendor agreed to comply with all applicable federal and state laws.

Implications for Employers

The outcome of the Rogers trial–which is beginning its second week–will be extremely important for Illinois businesses moving forward.  Not only is it the first ever BIPA jury trial, but it involves several novel BIPA defense theories.  Given the continuing flood of BIPA class actions filed in Illinois courts, employers–and especially those utilizing contractors for HR-related tasks–should pay close attention to the jury’s reception of BNSF’s defenses at trial.