Duane Morris Privacy Class Action Review – 2024

closely watched, as it represented the first time any class action had gone to a full trial with claims under the BIPA. The trial lasted five days. However, the jurors deliberated for just over an hour. The jurors were asked: (i) to state on the verdict form whether they sided with the plaintiff; and (ii) if so, to indicate how many times BNSF violated the BIPA negligently or how many times the company violated the statute recklessly or intentionally. The BIPA provides for damages of up to $1,000 for every negligent violation, and up to $5,000 in liquidated damages for every willful or reckless violation. At the conclusion of the trial, the jury found that BNSF recklessly or intentionally violated the law 45,600 times. Accordingly, the court entered a judgment against BNSF in the amount of $5,000 per violation, for a total amount of $228 million. On November 9, 2022, BNSF filed a motion for a new trial under Rule 59(a) or to reduce the damages award under Rule 59(e). It argued that none of the 45,600 class members suffered any actual harm. It also raised constitutional concerns about the BIPA. BNSF renewed its motion for judgment as a matter of law pursuant to Rule 50(b), following the court’s denial of BNSF’s Rule 50(a) motion at trial. In the alternative, BNSF moved for a new trial under Rule 59(a), or to reduce the damages award under Rule 59(e). First, BNSF argued that there was insufficient evidence for the jury to find that BNSF violated the BIPA. In support of that argument, BNSF cited testimony from its former Director of Technology Services that BNSF did not collect or obtain biometrics from truck drivers in Illinois, that the biometric data was stored on another entity’s server, and that BNSF did not maintain a copy of any of that data. Second, BNSF argued that it was entitled to judgment as a matter of law or a new trial, or at least a significant reduction in damages, because there was insufficient evidence for a rational jury to conclude that BNSF violated the BIPA recklessly or intentionally 45,600 times. BNSF claimed that there was no evidence that BNSF even learned about the BIPA until April 2019. Therefore, BNSF argued, no rational jury could have inferred from this evidence that BNSF consciously disregarded or intentionally violated the rights of the plaintiff and the class members at any point, much less for the full class period starting in April 2014. Third, BNSF argued that the court’s award of $228 million in damages where the plaintiff admitted he and the members of the class suffered no actual harm violated the due process clause and excessive fines clause of the U.S. Constitution. BNSF pointed out that it was undisputed that neither the plaintiff nor any member of the class had suffered any actual harm from any alleged violation of the BIPA. Accordingly, BNSF asked the court to enter judgment as a matter of law against the plaintiff and in favor of BNSF, or, in the alternative, to grant BNSF a new trial or substantially reduce the damages award against BNSF. In November of 2022, the defendant moved to vacate the judgment or for a new trial. In June of 2023, in Rogers, et al. v. BNSF Railway Co., 2023 U.S. Dist. LEXIS 113278 (N.D. Ill. June 30, 2023), the court granted in part the motion. The court ordered a new trial in which jurors would be informed that damages are optional in BIPA cases, and be provided the chance to determine penalties themselves. The court also stated that a jury should be allowed to determine the amount of penalties in such a case under the U.S. Constitution's Seventh Amendment right to trial by jury. As a result, the new trial would be limited solely to whether BNSF should have to pay damages, and if so, the amount of damages. The court did not vacate the portion of the jury finding that BNSF should be held liable for its fingerprint collection system breaching the BIPA. After this ruling, the parties agreed to settle the case for an undisclosed sum. This landmark verdict showcases the potentially devastating impact of the BIPA statute on unwary businesses in Illinois that collect, use, store, or disemminate biometric information. This outcome serves as a cautionary tale for future privacy action defendants who are considering taking a case to trial before a jury.

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