By way of Danielle Kays and Danny Riley, Regulation 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 ended in a courtroom award of $228 million in damages, is unconstitutional and unreasonable given the category participants suffered no precise hurt.
As a refresher, below BIPA, biometric data is any data “irrespective of how it’s captured, transformed, saved, or shared, in response to a person’s biometric identifier used to spot a person.” 740 ILCS §14/10. The Act supplies a personal entity would possibly not “gather, seize, acquire, obtain thru business, or another way download” this knowledge with out knowledgeable consent. 740 ILCS §14/15(b). To conform to this state legislation, firms should supply knowledgeable, written consent prior to the seize, use and garage of biometric data, in addition to notices specifying the corporate’s information assortment practices. Damages for every negligent violation can upward thrust to $1,000, with reckless or intentional violations being capped at $5,000.
Remaining 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 level–BNSF might be held vicariously liable below the BIPA for behavior through a third-party dealer that operated finger scanning era. Regardless of BNSF’s argument that the railway’s dealer was once the entity that accrued the workers’ biometric information (and no longer the railway), the jury discovered that the railway was once chargeable 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 precise 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 strengthen 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, reasonably than reckless or intentional violations. Will have to BNSF effectively argue that its violations had been negligent, damages would possibly nonetheless be upwards of $45 million.
BNSF additionally famous the Illinois Ultimate Court docket’s pending resolution in Cothron v. White Fortress, which can make a decision whether or not BIPA claims accrue “every time a personal entity scans an individual’s biometric identifier and every time a personal entity transmits this kind of 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 Ultimate Court docket facets with the defendant in White Fortress, BNSF argues that the plaintiff’s declare will likely be disregarded and the category decertified.
Will have to the Court docket deny BNSF’s movement for a brand new trial, the railway in the past stated it plans to enchantment the decision.
The time is now for employers to behavior interior audits to verify they’re BIPA compliant.
BIPA Compliance
• Download a written consent shape from folks in the event you intend to assemble, use, retailer, or reveal any non-public biometric data.
• Notify folks in writing that the tips is being accrued or saved and the aim and period of time for which the biometric identifier will likely be accrued, saved, and used.
• Create and take care of a retention agenda for biometric information retention and tips for completely destroying biometric data.
For more info concerning the Illinois Biometric Knowledge Privateness Act, and the way this building would possibly impact your enterprise, touch the authors, your Seyfarth legal professional, or Seyfarth’s Office Privateness & Biometrics Follow Team.