Yesterday, October 12, 2022, was the first time that a case under the Illinois Biometric Information Privacy Act (BIPA) went to trial – and the result was a big win for the Plaintiffs, more than 44,000 truck drivers whose fingerprints were scanned for identity verification purposes without any informed permission or notice. BIPA is an Illinois state law that requires informed, written consent before personal biometric information is captured, used, and stored. The law also provides a private right of action — allowing individuals whose biometric information is captured, used, or stored without informed, written consent to bring suit. In 2019, in Rosenbach v. Six Flags, it was held that failure to comply with the statue alone constitutes harm sufficient to confer standing. This allows for suits when the statute is violated, regardless of whether the biometric information that is captured is misused in any way or the person whose information is captured experiences any real-world harm.  Since the Rosenbach ruling, many BIPA cases have been brought – but they always result in settlement.

The case, Richard Rogers v. BNSF Railway Company (Case No. 19-C-3083, N.D. Ill.), is noteworthy not only because it was the first trial in a BIPA case, but also because (1) of how damages were proved, and (2) the defendant was not itself the party that was capturing the data, rather it had contracted out identification verification to a third-party.

First, regarding damages, the jurors were asked only to indicate how many times defendant recklessly or intentionally violated the law. They answered consistent with the defense expert’s estimated number of drivers who had their fingerprints registered: 45,600 times. The Court then entered a judgment of $228 million, based on the jury’s finding of 45,600 violations, and the language of the statute which provides for up to $5,000 for every willful or reckless violation and $1,000 for every negligent violation.

Second, regarding the defendant, BNSF Railway was not the party that actually collected anyone’s fingerprints. Rather, BNSF hired a third party company – Remprex LLC – to process drivers at the gates of the railroad’s Illinois rail yards.  BNSF argued that it did not control the “method and manner” of Remprex’s work. Counsel for the Plaintiff argued that ignorance is not a defense to the law, and if BNSF did not know about the BIPA then it was acting recklessly (the railroad company has been around for 150 years in a highly regulated industry, and its subcontractor, Remprex, was just a two-person start-up when they were first hired). Counsel for Plaintiff also argued that a party cannot “contract out” its obligation to follow the law. Compellingly, Plaintiff’s counsel also pointed to the fact that BNSF continued its biometric information data processing activities even after suit was first filed in 2019.