Following a week-long trial, a jury in Illinois awarded a plaintiff class of truck drivers a $228 million verdict against BNSF Railways for violations of the Illinois Biometric Information Privacy Act (“BIPA”).  The large verdict, arising from the first case to go to trial under the 2008 law, highlights the potential impact of class actions brought under this statute.

The case, Rogers v. BNSF Railway Company, 1:19-cv-03083 (N.D. Illinois), was brought by a class of tens of thousands of truck drivers who serviced BNSF’s rail yards in Illinois.  The drivers claimed that they had been required to submit to having their fingerprints scanned for identity verification purposes, but never received written notice of the collection and storage of this biometric information and never signed a written release, in violation of BIPA.  In response, BNSF argued that any collection of fingerprints was conducted by an independent contractor, and therefore BNSF was not responsible for the way this third party collected the biometric information.  However, the jury found in favor of the plaintiffs, and further held that each driver fingerprinted constituted a distinct violation of BIPA.  The statute provides for statutory damages of $1000 for a negligent violation of the Act, and $5000 for intentional or reckless violations.  Ultimately, the jury’s verdict resulted in a $228 million judgment.

The verdict against BNSF highlights the need for businesses to be attentive to the potential disparate data privacy obligations imposed by different states, and the risk of substantial class action damages because of private rights of action created by these laws.

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Photo of Sam Greeley Sam Greeley

Samuel Greeley is an associate in the firm’s Washington, DC office representing clients in government investigations and complex civil litigation.

Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.