BNSF Railway wins new trial over $228 million jury award in biometric data case

By Mike Scarcella

(Reuters) – A U.S. judge on Friday ordered a new trial on damages against BNSF Railway in a privacy class action, in a ruling that wiped out an award of $228 million to truck drivers who accused the freight railway giant of unlawfully collecting their fingerprints.

The ruling from U.S. District Judge Matthew Kennelly in Illinois upheld a jury’s liability verdict that BNSF had violated the Illinois Biometric Information Privacy Act, which imposes restrictions on the collection and use of personal information such as retinal scans and fingerprints.

But Kennelly said damages under the biometric law were discretionary, and so “BNSF is entitled to have a jury determine the appropriate amount of damages.”

The trial was the first to be held under the Illinois biometric privacy law, which is among the most stringent nationwide in protecting sensitive personal information.

Warren Buffett’s Berkshire Hathaway (NYSE:) owns BNSF, which operates one of the country’s largest freight rail networks.

A spokesperson for BNSF and a lawyer for the company did not immediately respond to requests on Friday seeking comment.

Attorneys for the plaintiff did not immediately respond to similar messages.

A truck driver sued BNSF in 2019, alleging the Fort Worth, Texas-based company unlawfully required drivers to scan fingerprints at facilities in the state.

The jury in Chicago last year concluded BNSF “recklessly or intentionally” violated the Illinois biometric privacy law 45,600 times. The law allows $5,000 per violation.

Lawyers for BNSF said in a post-trial brief that the Illinois biometric law contains the word “may” and that “there is the option not to award damages, or to award damages in any amount less than the statutory maximum.”

The state law poses myriad compliance hurdles for companies, and many have faced litigation. In 2020, Facebook (NASDAQ:) said it would pay $650 million to resolve class action allegations that it violated the Illinois law in a feature that could recognize people in photographs shared to the site.

The case is Rogers (NYSE:) v. BNSF Railway Company, U.S. 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

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