Federal Judge Vacates a $228 Million Award in a BIPA Case


The Biometric Information Privacy Act, otherwise known as “BIPA”, was enacted by the Illinois State Legislature in 2008 in response to the Legislature’s finding that corporate entities and small businesses are increasingly using a person’s biometric information in financial transactions and as a mechanism for employee timekeeping.

The Illinois Legislature enacted BIPA in order to protect people from unwittingly or forcibly providing their biometric information and biometric identifiers without their informed consent that this information was going to be used and stored. The idea behind BIPA was to protect a person’s biometric information and identifiers from improper capture and exposure. Unlike other forms of identifiers, a person cannot change their biometric data if it was ever compromised due to a data breach of improper exposure.

On June 30, 2023, Judge Matthew F. Kennelly of the Northern District of Illinois vacated the $228 million judgment that he had previously entered in favor of plaintiff. Originally Judge Kennelly found that the discretion contained in the statute depended on the number of violations not the amount of damage for each violation. He reasoned that once the number of violations was determined by the jury and whether violations were negligent or intentional that the amount of the damages under the statute would be mandatory because the statute provided for “liquidated damages of $1,000” for negligent violations and provided “liquidated damages of $5,000” for reckless or intentional violations. Based on this reasoning, the jury in the original trial determined only whether the conduct was negligent or intentional or reckless, and the number of violations. The district court judge then calculated the judgment of $228 million by multiplying the jury’s finding of 45,600 reckless violations times the liquidated damage amount of $5,000.

In its post-trial motions, BNSF argued that damages and the amount of any award of damages were discretionary under BIPA because Section 20 provided that “[a] prevailing party may recover [damages, fees and costs, and other relief] for each violation.” It further argued that although Illinois courts had not squarely addressed the issue, the district court should nonetheless decide this question based on how it believed the Illinois Supreme Court was likely to rule.

After analyzing recent Illinois decisions (including the Illinois Supreme Court Decision in Cathron v. White Castle Sys., Inc., 2023 IL 128004 (2023) that had been decided four months after the original trial in this case), Judge Kennelly concluded that the Illinois Supreme Court was likely to rule that the amount of damages under the statute was discretionary, not just the number of violations or whether the violations were negligent or intentional. Judge Kennelly therefore vacated the award of damages, and ordered a new trial limited to the question of damages. This new trial is set to begin on October 2, 2023.

BIPA is still a point of tension amongst businesses and private parties as most organizations have still not fully adapted to the privacy law and its requirements, if you have any questions about BIPA please do not hesitate to contact or call your current Airdo Werwas attorney.

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