September 24, 2023

Through Danielle Kays and Danny Riley, Legislation Clerk

Seyfarth Synopsis: BNSF Railway seeks a brand new trial following the decision in opposition to it within the first ever jury verdict in an Illinois Biometric Knowledge Privateness Act (“BIPA”) magnificence motion.  BNSF contends that the verdict, which led to a court docket award of $228 million in damages, is unconstitutional and unreasonable given the category contributors suffered no exact hurt.

As a refresher, below BIPA, biometric data is any data “without reference to how it’s captured, transformed, saved, or shared, according to a person’s biometric identifier used to spot a person.” 740 ILCS §14/10. The Act supplies a personal entity would possibly not “acquire, seize, acquire, obtain thru business, or another way download” this knowledge with out knowledgeable consent. 740 ILCS §14/15(b).  To agree to this state regulation, firms will have to supply knowledgeable, written consent sooner than the seize, use and garage of biometric data, in addition to notices specifying the corporate’s information assortment practices. Damages for each and every negligent violation can upward push to $1,000, with reckless or intentional violations being capped at $5,000.

Closing month, a Chicago jury heard the first ever jury trial of a BIPA magnificence motion within the case Rogers v. BNSF Railway Corporate.  At factor was once whether or not–and to what stage–BNSF may well be held vicariously liable below the BIPA for behavior through a third-party supplier that operated finger scanning generation.  Regardless of BNSF’s argument that the railway’s supplier was once the entity that amassed the workers’ biometric information (and no longer the railway), the jury discovered that the railway was once answerable for roughly 45,600 reckless or intentional violations.  Now, in its movement for a brand new trial, BNSF argues that the “unparalleled judgment awarding plaintiff and the category a nine-figure providence in spite of their admission that they suffered no exact hurt was once no longer supported through the proof at trial.”

Whilst BNSF claims that the ruling is unconstitutional, it additionally argues that the proof proposed to the jury was once no longer sufficient to fortify a discovering of legal responsibility.  The railway argues that even within the case that there’s a discovering of legal responsibility, any violations would represent negligence, relatively than reckless or intentional violations.  Will have to BNSF effectively argue that its violations had been negligent, damages might nonetheless be upwards of $45 million.

BNSF additionally famous the Illinois Ideally suited Court docket’s pending determination in Cothron v. White Fort, which can make a decision whether or not BIPA claims accrue “each and every time a personal entity scans an individual’s biometric identifier and each and every time a personal entity transmits one of these scan to a 3rd occasion, respectively, or simplest upon the primary scan and primary transmission.” 20 F.4th 1156, 1167 (seventh Cir. 2021).  If the Illinois Ideally suited Court docket aspects with the defendant in White Fort, BNSF argues that the plaintiff’s declare can be disregarded and the category decertified.

Will have to the Court docket deny BNSF’s movement for a brand new trial, the railway prior to now mentioned it plans to enchantment the decision.

The time is now for employers to behavior inner audits to verify they’re BIPA compliant.

BIPA Compliance

•  Download a written consent shape from people for those who intend to gather, use, retailer, or reveal any non-public biometric data.

•  Notify people in writing that the ideas is being amassed or saved and the aim and period of time for which the biometric identifier can be amassed, saved, and used.

•  Create and handle a retention time table for biometric information retention and pointers for completely destroying biometric data.

For more info concerning the Illinois Biometric Knowledge Privateness Act, and the way this construction might have an effect on your small business, touch the authors, your Seyfarth lawyer, or Seyfarth’s Office Privateness & Biometrics Follow Team.