Last week, the first jury trial under the Illinois Biometric Privacy Act (BIPA) resulted in a $228 million verdict in favor of the plaintiff and the class.

The case, Rogers v. BNSF Railway Co., was filed in May 2019 and was pending in the U.S. District Court for the Northern District of Illinois. A class was certified in March 2022. Plaintiff alleged that BNSF unlawfully scanned his and other truck drivers’ fingerprints for identity verification when he and they visited BNSF rail yards. He claimed the company took this scan without written notice or consent as required under BIPA. BNSF argued, among other things, that the third-party vendor it hired to control gate access was the only party to collect drivers’ fingerprints, and that BNSF therefore had not independently violated BIPA.

Pretrial briefing in the case was extensive. Each side filed several motions in limine seeking to bar or include certain evidence in the trial. For example, the Plaintiff found several references to use of “biometrics” or “biometric identities” on BNSF’s website that they alleged were responsive to former document requests. Anticipating objections from BNSF, Plaintiff filed a preemptive motion asking the court to permit them to introduce these exhibits at trial. Plaintiff were able to use this information at the trial and suggest that BNSF was aware of the biometric collection and that BNSF itself was collecting the information.

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