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It’s mind blowing that 2023 is halfway over. Anyone have plans before the school year begins again?
BIPA Updates
Two recent court decisions in the high-profile White Castle and BNSF Illinois Biometric Information Privacy Act (BIPA) matters have created additional uncertainty about damages in BIPA matters. The impact of these decisions will likely lead to increased settlement amounts and even more lawsuits initiated. Let’s take a quick look at these decisions:
White Castle- Petition for Rehearing Denied
Tuesday, the Illinois Supreme Court denied White Castle’s petition for rehearing in the infamous Cothron case. You’ll recall that Cothron upheld damages on a per-scan basis, leading to potential of absurd liability amounts in cases of no actual harm (into the billions of dollars). This decision is now final, barring an unexpected intervention from the United States Supreme Court.
I spoke with Jim Sams of the Claims Journal right after this decision was issued. You can read the full article here.
Here’s a snippet: The Illinois Chamber of Commerce was among several business groups that filed amicus briefs urging the Supreme Court to reconsider its interpretation of when violations occur under the law. Clark Kaericher, senior vice president of government affairs for the Chamber, said White Castle is not the only business that failed to notice that the methods they were using to verify employees’ identities violated a state law. It’s not unusual for large national employers to be uninformed about the passage of “obscure state laws,” he said.
BNSF- New Trail on Damages Granted
The United States District Court for the Northern District of Illinois granted a new trial in the Rogers v. BNSF Railway case, the first BIPA case to be tried to a jury. That trial resulted in a $228 million verdict against BNSF last fall. The judge based his opinion on the language of the Cothron v. White Castle decision stating that BIPA damages are “discretionary”.
The new trial will solely focus on the damages amount. The $228 million figure was arrived at multiplying $5,000 (the intentional scan violation amount) by the 45,600 truckers using the system. Undoubtedly, BNSF will argue for a lower amount citing the lack of harm. Amazingly, however, the plaintiffs could argue for MORE damages, potentially up to $5,000 per scan.
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