Illinois Biometric Privacy Act Trial Awards Plaintiffs $228 Million

In the first of what is likely to be many class action lawsuit decisions surrounding the collection of biometric information by businesses in Illinois, a jury in the US District Court for the Northern District of Illinois recently found BNSF Railway Co. in violation of the Illinois Biometric Information Privacy Act (BIPA) [1]. BIPA establishes regulations for collecting biometric identifiers, most notably requiring informed consent [1]. Richard Rogers, an employee at BNSF, filed suit in 2019 on behalf of more than 45,000 truck drivers, alleging that BNSF required biometric identifiers for employees to access buildings without prior informed consent, in violation of BIPA. In response, BNSF argued that the biometrics were collected by a third-party contractor, Remprex, LLC.

The court denied BNSF’s motion to dismiss on the grounds that Remprex was the proper party to sue, suggesting that BNSF was involved, if indirectly [1]. In October 2022, after a five-day trial and one hour of deliberation, the jury found BNSF violated BIPA. Under the provisions of BIPA, an intentional violation requires that BNSF pay $5,000, resulting in total damages of $228 million. However, a separate case, Cothron v. White Castle, Inc., will determine whether each violation will count toward damages calculations.

White Castle argues that only the first violation should be penalized, while Cothron, a former employee, argues that each should count [2]. A decision in this case could cause the damages in Rogers v. BNSF to be lowered. Lena Kent, the spokesperson for BNSF, said in response that “the decision reflects a misunderstanding of key issues” [3]. Nevertheless, this outcome suggests that other upcoming cases may be resolved similarly. The short deliberation and the jury’s emphasis that the violations were reckless or intentional should serve as a warning for other companies accused of violating BIPA [4].