First BIPA jury trial yields $228 million judgment

The first jury verdict regarding violations of Illinois’ Biometric Information Privacy Act (BIPA) resulted in a $228 million judgment against BNSF Railway. The case involved a class of more than 40,000 truckers whose fingerprints were scanned for identity verification purposes – without the required notice and consent – ​​when they drove into BNSF rail yards to pick up and drop off loads. The jury determined that the law was violated 46,500 times, an amount equal to the number of drivers whose fingerprints were scanned, and that the violations were reckless or intentional, a finding that carries a price tag of $5,000 per violation. .

The case presents two issues that have yet to be resolved by the courts. The first question is whether the damage should be calculated per person or each time biometric information is scanned. This issue is currently before the Illinois Supreme Court, but no decision has been rendered. The second question is whether a company that contracts with a third-party provider who in turn collects biometric data can be held liable for any breach of BIPA. This issue will likely be decided by the Seventh Circuit Court of Appeals if and when BNSF appeals the verdict.

Regardless of the ultimate answers to these questions, this case demonstrates the importance of verifying current privacy practices to ensure compliance with applicable law, as well as ensuring that contracts with third parties contain clear provisions regarding the compliance and compensation. This is especially true as more and more states adopt BIPA-like statutes.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 293

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