Judge Vacates Jury BIPA Damages Award and Orders New Trial on BIPA Damages Issue
By Alan S. Wernick, Esq., Aronberg Goldgehn
The damages for a violation of the Illinois Biometric Information Privacy Act (“BIPA”) became uncertain when, on June 30, 2023, a federal judge in the first-ever BIPA trial granted defendant’s motion for a new trial limited to the question of damages.
Biometrics measure and analyze people’s unique physical and behavioral characteristics. Biometrics’ many uses include identification, access controls, testing, and numerous other rapidly evolving business applications. The Illinois BIPA (which became effective on October 3, 2008) provides (740 ILCS 14/20) that for each negligent violation of the act, a prevailing plaintiff may recover liquidated damages of $1,000 or actual damages, whichever is greater, in addition to obtaining other relief such as an injunction. For each intentional or reckless violation of the act, the plaintiff may recover the greater of liquidated damages of $5,000 or actual damages. In addition, the plaintiff may recover reasonable attorney’s fees and costs, including expert witness fees and other litigation expenses, plus other relief, including an injunction, as the state or federal court may deem appropriate. Illinois BIPA is not the only law regulating the use of biometric data. See, “Biometric Information – Permanent Personally Identifiable Information Risk.”
On October 12, 2022, the jury in the first-ever trial concerning BIPA, in Richard Rogers, individually and on behalf of similarly situated individuals, Plaintiff, v. BNSF Railway Company, U.S. District Court, Northern District, Illinois (“Rogers”), agreed with the plaintiffs’ class of more than 44,000 truck drivers suing BNSF Railway on allegations of 45,600 willful or reckless BIPA violations. The jury awarded a $228 million verdict against BNSF Railway. The underlying math for the verdict was relatively simple: the number of violations multiplied by statutory damages of $5,000 for each willful or reckless violation ($228,000,000 = $5,000 x 45,600).
Both parties filed motions regarding the jury’s judgment: BNSF moved for entry of judgment in its favor as a matter of law, and in the alternative moved for a new trial or to alter or amend the damages award; Rogers moved to amend the judgment and for a partial new trial. The U.S. District Court, in its June 30, 2023, decision, denied all the motions except for BNSF’s motion for a new trial on the damages issue. Rogers v BNSF Railway Company, 2023 WL 4297654.
The U.S. District Court in Rogers based its decision to grant a new trial on the damages issue in part on the February 17, 2023, Illinois Supreme Court decision in Cothron v. White Castle Sys., Inc., 2023 IL 128004. Cothron held that a BIPA claim accrues under the Act with every scan or transmission of biometric identifiers or biometric information without prior informed consent. The Illinois Supreme Court in Cothron, in dicta, cited to the use of “may” in the BIPA and a decision by the Illinois Appellate Court, stating: “It also appears that the General Assembly chose to make damages discretionary rather than mandatory under the Act. See 740 ILCS 14/20 … (detailing the amounts and types of damages that a ‘prevailing party may recover’ (emphasis added)); see also Watson, 2021 IL App (1st) 210279, ¶66 n.4, 458 Ill.Dec. 267, 196 N.E.3d 571 (concluding that damages under the Act are discretionary rather than mandatory).” Cothron v. White Castle Sys., Inc., 2023 IL 128004, ¶ 42.
The U.S. District Court, in partially granting BNSF’s motion for a new trial, vacated the award of damages, and ordered a new trial limited to the question of damages, stating, in part: “…the court in Cothron also pointed out that ‘where statutory language is clear, it must be given effect.’ 2021 IL 128004, ¶ 40. That same canon of statutory interpretation applies to Section 20, and the use of ‘may’ and ‘each violation’ indicates to this Court that to the extent that damages are discretionary, the discretion does not depend on the number of violations. The Court therefore sees no basis, in making an ‘Erie Guess,’ to disregard the Illinois Supreme Court’s statement that ‘the General Assembly chose to make damages discretionary rather than mandatory under the Act.’ Cothron, 2021 IL 128004, ¶ 42.” Rogers, 2023 WL 4297654, *9.
The outcome of the new trial on the damages issue may help clarify the BIPA damages calculation. However, the liability for violating BIPA has become clearer as courts around the country have considered the liability of businesses collecting, storing, and/or using biometric data. The bottom line is that business collecting, storing, or using biometric data need to promptly discuss with knowledgeable legal counsel the legal risks and ramifications associated with biometric data. Compliance with BIPA and other privacy/cybersecurity statutes and regulations, like any compliance activity, is a recognized business expense. However, that expense can be far lower than non-compliance.
© 2023 Alan S. Wernick and Aronberg Goldgehn.