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BNSF’s $228 Million BIPA Judgment in Play After ‘White Citadel’

ByMarty Grubbs

Mar 13, 2023

A Chicago pass judgement on’s choice on whether or not to amend a $228 million judgment in opposition to BNSF Railway Co. will supply a primary glimpse into how courts will interpret an Illinois Ultimate Court docket choice opening the door to huge damages awards for violations of the state’s Biometric Data Privateness Act.

Plaintiffs in Rogers v. BNSF Railway Co. have argued in post-trial motions that the judgment was once some distance too low given the state prime court docket’s February ruling in Cothron v. White Citadel Sys. Inc. {that a} violation befell every time a employee’s fingerprint was once scanned.

Pass judgement on Matthew Kennelly of the United States District Court docket for the Northern District of Illinois had calculated the BNSF award in response to a discovering of only one violation in line with employee, somewhat than one in line with scan.

However BNSF filed post-trial motions arguing that the judgment was once too prime since the trial court docket handled the damages award as necessary, an manner in rigidity with the state prime court docket’s discovering in White Citadel, that BIPA injury awards are discretionary.

Using discretion is especially suitable on this case, the place there was once no discovering that the plaintiffs suffered any damage past statutory violations associated with knowledgeable consent, the freight rail corporate stated.

Biometric privateness lawyers interviewed via Bloomberg Legislation had been reluctant to make any predictions about how Kennelly will rule at the events’ motions. However they agree that the BNSF case—the primary to visit trial since BIPA was once enacted in 2008—supplies a extremely visual check case for the way courts will manner the problem of biometric privateness damages within the wake of the White Citadel ruling.

It’s as much as the pass judgement on to come to a decision how briefly to rule at the motions, however there’s explanation why to suppose he’ll act “lovely briefly,” stated Jody Kahn Mason, a predominant with Jackson Lewis PC in Chicago.

“That is this type of serious problem, I believe he received’t extend too lengthy,” she stated.

Kennelly stated closing month that he’d set the competing motions for oral argument if essential, however didn’t give any more indication on when he’d factor a ruling.

BNSF Judgment

Kennelly entered the $228 million judgment in opposition to BNSF after a jury discovered that the railroad had recklessly or deliberately violated BIPA 45,600 instances, one violation in line with member of the category. His choice additionally subjected BNSF to the utmost statutory penalty of $5,000 in line with violation.

The plaintiffs argued, in a movement to amend the judgment filed sooner than the White Citadel ruling, that the judgment was once too low as it didn’t have in mind the truth that BNSF staff had been required to put up 3 finger scans once they first registered with the timekeeping device.

The employees requested for a brand new trial on damages to evaluate the full choice of biometrics gathered via BNSF as they entered and left the railyards on a daily basis.

A calculation in response to that many violations may just result in a “really astronomical damages award,” stated Mary Smigielski, a spouse with Lewis Brisbois Bisgaard & Smith LLP in Chicago, and chair of the company’s BIPA observe workforce.

However damages awards so massive they might wipe out a trade or throw it out of business weren’t “what the court docket had in thoughts,” she stated.

“One of the vital implications that I see popping out of the White Citadel ruling is that the court docket affirmed what’s within the simple language of the statute, that damages ‘would possibly’ be awarded however don’t need to be awarded,” she stated.

Some protection lawyers see the chance that the court docket’s preserving on discretionary damages may just if truth be told cut back damages awards and settlements in BIPA circumstances, however Jeffrey Rosenthal, the biometric privateness staff lead at Clean Rome LLP in Philadelphia, wasn’t so sanguine.

“It’s true that you’ll be able to pull the court docket’s statements on discretion out of this ruling and take some convenience, perhaps that relieves the doom and gloom a little bit, however as I’ve defined to shoppers, in case you’re banking at the pass judgement on on the finish of the day, that’s a large number of possibility,” Rosenthal stated.

Loss of Hurt

A central factor of the BNSF case, bearing at the query of whether or not the court docket must amend the award, is the loss of exact damage to the plaintiffs, stated Mark Olthoff, a shareholder with Polsinelli PC in Kansas Town, Mo.

There was once no discovering within the case that the biometric data of the employees was once matter to an unauthorized disclosure, he stated.

The Illinois Ultimate Court docket held in a prior case, Rosenbach v. Six Flags Entm’t Corp., {that a} mere statutory violation of BIPA was once enough for an award of damages even and not using a appearing of concrete damage, Olthoff stated.

However an eye-popping damages award within the absence of tangible damage may just lift due procedure considerations underneath the United States Charter, he stated.

“I’m no longer acutely aware of any incidents the place biometric data gathered as a part of a timekeeping device has been disclosed down the street, or the place the tips has gotten out via an information breach or one thing like that,” he stated. “Those are truly no-harm eventualities, however with the potential of huge damages. It’s definitely a subject {that a} court docket may just believe sooner or later.”

BNSF Court docket

The BNSF jury additionally discovered that the railroad’s violations had been reckless and intentional, which may have the most important impact on how Kennelly workouts his discretion, Olthoff stated.

“That is other from maximum BIPA circumstances, the place the defendant wasn’t acutely aware of the necessities of the Act, or made an try to comply whilst falling wanting complete compliance,” the lawyer stated. “Right here the jury’s discovering of reckless and intentional violations places this into a distinct class, and places the corporate in a extra uncomfortable place.”

Weighing in opposition to any expectation that Kennelly will amend the judgment is the truth that the discretionary nature of damages underneath BIPA have been stated via the state’s prime court docket previous to the White Citadel ruling, stated Karla Grossenbacher, a spouse with Seyfarth Shaw LLP in Washington.

“It was once transparent from the statute and former case regulation that damages had been discretionary, and the pass judgement on wouldn’t have wanted the White Citadel choice to look that given the permissive language of the statute,” she stated. “So it may well be that he’ll say, ‘Hello, the plaintiffs are pushing me upper, BNSF says it must be decrease, I’ll simply workout my discretion and stay it the way in which it’s.”

The circumstances are Rogers v. BNSF Ry. Co., N.D. Unwell., No. 19-cv-03083, realize of supplemental authority filed 2/23/23 and Cothron v. White Citadel Sys. Inc., Unwell., No. 128004, 2/17/23.

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