damages Archives - Biometric Privacy Insider

The U.S. District Court of the Northern District of Illinois vacated a $228 million damages award in Rogers v. BNSF Railway Co., the first case tried to a verdict under the Illinois Biometric Information Privacy Act (“BIPA”). In Rogers v. BNSF Railway Co., rail workers alleged that BNSF Railway Co. (“BNSF”) collected their biometric information without informed consent. The jury found that BNSF had recklessly or intentionally violated BIPA 45,600 times (one violation per class member). BIPA provides that intentional or reckless violations of BIPA may result in liquidated damages of $5,000 or actual damages, whichever is greater.

The prior award resulted from multiplying the number of BIPA violations by $5,000 to arrive at $228 million. While the court upheld the verdict that the company violated the BIPA, it held that damages were discretionary under BIPA (due to the term “may”) and ordered a new trial limited to the question of damages.

To read more articles from the August 2023 edition of Blank Rome’s BR Privacy & Security Download, please visit our website.

Amanda M. Noonan |

In a 4-3 split, the Illinois Supreme Court ruled earlier this month that claims under Sections 15(b) and 15(d) of the Illinois Biometric Information Privacy Act (“BIPA”) accrue each time a private entity scans a person’s biometric identifier and/or submits such scan to a third party—rather than only upon first collection. Cothron v. White Castle System, Inc., 2023 IL 128004 (Feb. 17, 2023). This decision—which dramatically expands the scope of potential liability for BIPA defendants—comes just weeks after the Illinois Supreme Court held a five-year statute of limitations applies to all BIPA causes of action in Tims v. Blackhorse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023).

The impact of Cothron on claim accrual, coupled with Tims’ resolution of the statute of limitations, will have an immense and immediate impact on BIPA class-action lawsuits—many of which had been stayed pending these decisions.

For many businesses that implement biometric time clocks, which scan biometric identifiers to track employee time/attendance, this means each time an employee scans in-and-out of work, a new BIPA violation accrues. Together with the five-year statute of limitations period, BIPA defendants may now be facing hundreds—if not thousands—of independent BIPA violations for a single complainant.