In the closely-watched first case to go to trial under the Illinois Biometric Information Privacy Act (BIPA), a federal judge has now vacated a $228 million award of statutory liquidated damages. The judge concluded that damages under BIPA are discretionary and ordered a new trial on damages. A link to our previous alert on this case is here.

In 2019, a class of truck drivers sued BNSF Railway alleging the company collected their biometric information (fingerprints) without their informed consent in violation of BIPA when they visited BNSF’s railyards to pick up and drop off loads. The Illinois biometric privacy law is among the most stringent in the country, permitting any person “aggrieved” by a violation to bring a lawsuit in state or federal court.

After a trial in October 2022, a jury found that BNSF recklessly or intentionally violated BIPA 45,600 times, equaling the number of drivers whose fingerprints had been registered at one of BNSF’s Illinois facilities between April 2014 and January 2020. US District Court Judge Matthew Kennelly entered the damages award, multiplying the number of violations by $5,000, the statutory penalty for each “reckless” or “intentional” violation.

However, in ruling on BNSF’s post-trial motion last week, Judge Kennelly agreed with BNSF that damages are discretionary under BIPA. Section 20 of BIPA provides that “a prevailing party may recover for each violation” the greater of actual damages or liquidated damages of $1,000 (for each negligent violation) or $5,000 (for each intentional or reckless violation). Citing Illinois law, Judge Kennelly noted that use of the word “may” in a statute generally indicates a permissive reading, whereas the word “shall” typically expresses a mandatory reading. Illinois courts have not squarely decided the issue under BIPA, however, so Judge Kennelly had to predict how the Illinois Supreme Court would rule.

Four months after the BNSF trial, the Illinois Supreme Court issued a long-awaited decision in Cothron v. White Castle Sys., Inc., 2023 IL 128004, holding that a claim accrues under BIPA every time a private entity unlawfully scans or transmits an individual’s biometric identifier or information. The Court rejected the argument that allowing multiple or repeated accruals could lead to astronomical damages, citing the permissive language in Section 20 and stating it “appears that the General Assembly chose to make damages discretionary rather than mandatory under [BIPA].” Id. ¶ 42.

Judge Kennelly found the language in Cothron suggests how the Illinois Supreme Court is likely to rule if it were to decide the question in the future. Based on his conclusion that damages under BIPA are discretionary, Judge Kennelly held that the damages award was a question for the jury. He, therefore, vacated the award of damages and ordered a new trial limited to the question of damages. The case is now set for a hearing to set a new trial date.