By Mike Scarcella
(Reuters) – A U.S. judge ordered a new lawsuit for damages against BNSF Railway in a privacy class action lawsuit on Friday, in a ruling that overturned a $228 million award truck drivers who accused the rail freight giant of illegally collecting their fingerprints.
U.S. District Judge Matthew Kennelly’s decision in Illinois upheld a jury’s liability verdict that BNSF violated Illinois’ biometric information privacy law, which imposes restrictions on the collection and use of personal information such as retinal scans and fingerprints.
But Kennelly said damages under the biometrics law were discretionary, and so “the BNSF has the right to ask a jury to determine the appropriate amount of damages.”
The trial was the first to be held under Illinois’ biometric privacy law, which is one of the most stringent in the nation when it comes to protecting sensitive personal information.
Warren Buffett’s Berkshire Hathaway owns BNSF, which operates one of the nation’s largest freight rail networks.
A BNSF spokesperson and a company attorney did not immediately respond to requests for comment on Friday.
Lawyers for the plaintiff did not immediately respond to similar messages.
A truck driver sued the BNSF in 2019, alleging the Fort Worth, Texas-based company illegally compelled drivers to scan fingerprints at state facilities.
Last year, the Chicago jury found that the BNSF “recklessly or intentionally” violated Illinois’ biometric privacy law 45,600 times. The law allows $5,000 per violation.
BNSF attorneys said in a post-trial brief that Illinois biometrics law contains the word “may” and that “it is possible not to award damages or to award damages from ‘an amount below the legal maximum’.
State law poses myriad compliance hurdles for businesses, and many have faced litigation. In 2020, Facebook said it would pay $650 million to resolve class-action claims that it violated Illinois law in a feature that could recognize people in photos shared on the site.
The case is Rogers v. BNSF Railway Company, US District Court, Northern District of Illinois, No. 1:19-cv-03083.
For Plaintiffs: Jon Loevy of Loevy & Loevy, Myles McGuire and David Gerbie of McGuire Law, and others
For BNSF: Elizabeth Herrington of Morgan, Lewis & Bockius
Learn more:
White Castle could face multi-billion dollar judgment in Illinois privacy lawsuit
BNSF to pay truckers $228 million over privacy breach
(Reporting by Mike Scarcella; Editing by Leigh Jones and Matthew Lewis)