By: Chloé G. Pedersen & Janet Gilbert

On October 12, 2022, a Chicago jury today found that BNSF could be liable to over 44,000 truck drivers in Illinois for violation of state’s Biometric Information Privacy Law, exposing the railroad to up to $228 million in damages.  The jury found BNSF violated the state’s privacy law by collecting drivers’ fingerprints without the driver’s written permission or without the required notice. BNSF argued to the jury that the railroad ‘s third-party provider – Remprex, LLC —  is the liable entity if the law was violated.  Remprex was responsible, according to BNSF, for assuring compliance with the new Illinois statute and to indemnify BNSF for any violations.  Further BNSF argued it never obligated Remprex to collect fingerprints.   Illinois biometric privacy statute is one of the first in the nation to permit a private right of action. It allows a person to claim damages for failure to comply with the strict terms of the statute even if the individual’s information was never misused or compromised. Several additional states have since passed similar legislation. It is safe to assume BNSF will challenge the results and/or seek indemnity; however, it is a word of warning to all to take another hard look at those contracts and be sure to update your policies and procedures to address biometric privacy concerns. For more info, contact Chloé G. Pedersen at 312/252-1510 or cpedersen@fletcher-sippel.com