By Danielle Kays and James Nasiri

Seyfarth Synopsis: Earlier this week, Seyfarth’s Employment Law Lookout team posted a blog discussing the status of the first ever jury trial of an Illinois Biometric Information Privacy Act (“BIPA”) class action (Rogers v. BNSF Railway Co.).  Today, the jury–in just over an hour of deliberation–entered verdict for the plaintiff.  This means that the jury, in remarkably swift fashion, disregarded BNSF’s primary defense that the Company’s third-party vendor was actually the culpable party because the vendor operated the biometric hardware at issue.  This Chicago jury’s first-of-its-kind decision resulted in a $228 million verdict against BNSF.

Jury Finds for Plaintiff in Rogers v. BNSF Railway Co.

As a brief refresher, this matter began in May 2019 when truck driver Richard Rogers filed a class action lawsuit alleging that BNSF violated several sections of the BIPA.  Specifically, Plaintiff Rogers claimed that BNSF improperly required drivers entering the Company’s facilities to provide their biometric information through a fingerprint scanner.  The Company asserted a number of defenses throughout the lawsuit (more information on these defenses can be found HERE), but most notably, BNSF argued that it could not be held vicariously liable for the actions of its third-party vendor in collecting drivers’ fingerprints.  However, the Court rejected the Company’s defenses and proceeded to certify a class of more than 44,000 drivers who had their fingerprints scanned at one of BNSF’s four Illinois facilities.

The parties proceeded to trial last week, and throughout this contentious jury trial, the parties debated whether–and to what degree–BNSF could be held vicariously liable under the BIPA.  In its closing argument, BNSF’s counsel emphasized that its vendor was the party that actually collected the plaintiffs’ biometric data.  BNSF’s counsel labeled the vendor as an independent contractor, also noting that that the Company’s contract with the vendor required the vendor to comply with applicable laws (such as the BIPA).  Rogers’ counsel, however, contended that BNSF acted recklessly with respect to its vendor’s conduct. 

In the end, the jury sided with the plaintiffs in decisive fashion.  The jury found BNSF was liable for violating the BIPA.  Moreover, the jury determined that the Company intentionally or recklessly violated the BIPA approximately 45,600 times.  This finding is notable because the Act provides for liquidated damages in the amount of $1,000 per each negligent violation and $5,000 per each willful or reckless violation.  Following the jury’s verdict, Judge Matthew Kennelly promptly rendered a judgment on the verdict in the amount of $228 million.  

Looking Ahead

The jury’s decision in Rogers is significant to Illinois businesses, hundreds of which have already been hit with (or are presently defending) a BIPA class action lawsuit.  A corporate representative for BNSF told Law360 that the Company plans to appeal this decision. 

For more information about the Illinois Biometric Information Privacy Act, and how this verdict may affect your business, contact the authors, your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.