Rogers v. BNSF Ry. Co.
| Docket Number | 19 C 3083 |
| Decision Date | 30 June 2023 |
| Parties | RICHARD ROGERS, individually and on behalf of similarly situated individuals, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Richard Rogers, a truck driver who was required to scan a biometric identifier into identity verification devices to enter BNSF railyards, sued BNSF Railway Company on behalf of a class of similarly situated persons for violations of the Illinois Biometric Information Privacy Act (BIPA). After the Court granted Rogers's motion to remand his BIPA section 15(a) claim to the Circuit Court of Cook County, Rogers amended his complaint to remove his section 15(a) and 15(d) claims and proceed with only his section 15(b) claim. The Court denied BNSF's motion for summary judgment and granted Rogers's motion to certify a class of "[a]ll individuals whose fingerprint information was registered using an Auto-Gate System at one of BNSF's four Illinois facilities at any time between April 4, 2014 and January 25 2020." Rogers v. BNSF Ry., No. 19 C 3083, 2022 WL 854348 (N.D. Ill. Mar. 22, 2022). The Court denied BNSF's motion to certify an interlocutory appeal of the denial of summary judgment, and the case went to trial in October 2022. Before trial, the Court determined that damages under BIPA consisted of a liquidated per-violation amount that would depend on the jury's findings regarding BNSF's intent. The jury returned a verdict in favor of the class, finding that BNSF had recklessly or intentionally committed 45,600 violations of BIPA. Based on this finding, the Court entered judgment in favor of the plaintiff class in the amount of $228 million (45,600 times $5,000).
Both parties have filed motions regarding the judgment. BNSF has moved under Federal Rule of Civil Procedure 50(b) for entry of judgment in its favor as a matter of law. In the alternative, BNSF has moved under Rule 59(a) and (e) for a new trial or to alter or amend the damages award. Rogers, for his part, has also moved under Rule 59 to amend the judgment and for a partial new trial. For the reasons below, the Court grants BNSF's motion for a new trial on damages but otherwise denies both parties' motions.
The Court assumes familiarity with this case's factual and procedural background, which this Court has discussed in prior written opinions. See, e.g., Rogers v BNSF Ry., No. 19 C 3083, 2022 WL 787955 (N.D. Ill. Mar 15, 2022) ("Summary Judgment Decision"); Rogers v. BNSF Ry., No. 19 C 3083, 2019 WL 5635180 (N.D. Ill. Oct. 31, 2019) ("Motion to Dismiss Decision"). The following background is relevant to the post-trial motions and largely is taken from the Court's summary judgment decision, see Summary Judgment Decision, 2022 WL 787955, at *1-2, and the trial record.
The parties do not dispute that BNSF contracted with a third-party company named Remprex to install and manage an Auto-Gate System (AGS) to control the entry and exit of truck drivers at four of BNSF's Illinois facilities. At trial, various employees of both BNSF and Remprex testified regarding the companies' history and relationship.
Remprex CEO Remy Diebes stated that he understood BNSF had circulated a request for proposal (RFP) for an AGS in or around 2006 and that "[b]iometrics was the requirement within the RFP." Trial Tr. 1084:25-1085:17. Similarly, BNSF employee Chuck Burris did not dispute that BNSF entered into a contract with a third-party company named Nascent in November 2006 to install an AGS at one of BNSF's Illinois facilities. Nascent did not have an AGS that captured biometric information at the time, so it "went out and sourced it" to satisfy the requirements of BNSF's RFP. Id. 1086:1516.
Remprex was founded in 2007 as "an extension of Nascent," id. 475:8-10, and shortly afterwards it entered into a contract with BNSF to provide an AGS at various BNSF facilities. At the time it began doing business with BNSF, Remprex consisted of two employees: Timothy Ash and James Shondel. Ash testified that that he was not an expert in the laws and regulations governing the railroad transportation industry, but he had "been in the railroad servicing industry for [his] whole career," and "[a] substantial part of [his] expertise is the gating process of a railyard." Id. 226:13-227:3. He also stated that Remprex has never had an internal legal department, but it engaged with outside counsel on legal questions.
BNSF's agreement with Remprex required Remprex to operate and maintain the AGS at BNSF's four intermodal facilities in Illinois. The agreement described Remprex as an independent contractor, stated that Remprex "shall complete all Services . . . according to [its] own manner and methods," and obligated Remprex to "keep abreast of current and new laws, rules, regulations, and ordinances that affect operations at the terminal" and "promptly advise [BNSF] of any significant changes or developments therein." Id. 344:3-5, 873:20-24. BNSF licensed the "on-site AGS" software from Nascent and purchased "the hardware, the kiosks, the intermodal gate arms, and the fingerprint scanners" from Remprex. Id. 530:13, 518:14-16. The agreement also obligated Remprex to pay BNSF liquidated damages if a component of the AGS malfunctioned and was not fixed within a certain time period.
Remprex employees were responsible for collecting the truck drivers' biometric information. When drivers who were not registered in the AGS arrived at one of BNSF's facilities, they were directed to a "driver's assistance building" where Remprex employees registered them into the system. Ash testified that the registration process involved scanning "the right thumb, left thumb, and left index finger" of each driver and storing those fingerprints in a database but that it did not include obtaining written consent or informing the drivers "of the specific purpose for which [their fingerprints] were being collected . . . and for how long [those fingerprints] would be kept." Id. 220:23-24, 207:17-24. After the drivers were registered, they entered BNSF facilities on subsequent visits by scanning at least one finger on a kiosk, which then captured and compared those scans to the fingerprint database. Rogers's expert stated that there were approximately 44,139 individuals whose fingerprints were registered at one of BNSF's Illinois facilities between April 4, 2014 and January 25, 2020. BNSF's expert testified that there were approximately 45,600 such individuals.
The jury also heard conflicting testimony regarding BNSF's control over the operations of the AGS. Burris stated that BNSF "never operated or had any oversight of [the AGS] system," and BNSF employee Mike Whitaker testified that Remprex was "independently managing [the AGS] as the experts in their field." Id. 589:21-22, 890:25-891:1. In contrast, Ash testified that "there are nitty-gritty items that [BNSF] specifies for [Remprex]" and that Remprex "[c]oordinate[d], [c]ommunicate[d], [and] sometimes [took] specific direction" from BNSF in deciding "the manner and the method for the daily operations." Id. 344:15-16, 344:18-345:2. Ash also stated that (1) if a driver had asked not to be fingerprinted, it would have "need[ed] to be determined by BNSF[] if that's an option that is allowed," (2) BNSF sometimes decided to turn off the AGS or skip the "biometric validations step," and (3) BNSF was "calling the shots" and "had control of the ongoing decision to keep collecting and capturing" biometrics. Id. 222:17-24, 261:5-10, 433:12-13, 435:1-3.
Various witnesses testified regarding the ownership of the biometric data itself, the servers on which it was stored, and BNSF's ability to access the data. BNSF employee Whitaker did not dispute that BNSF paid for the servers, but he stated that BNSF did not own the biometric data and that "Remprex spec-ed out, maintained, managed, refreshed, [and] kept [the servers] at the end of their useful life." Id. 812:2324. In addition, BNSF's data systems expert explained that there were firewalls between the database and BNSF computers, and BNSF employee Burris stated that BNSF did not have access to the biometric data.
Burris also initially answered "no" when asked if BNSF "collect[ed], capture[d], purchase[d], receive[d] through trade, or otherwise obtain[ed]" the biometrics, but he later agreed that BNSF "owned the biometric data" and "at a minimum, obtained it." Id. 472:3-18, 530:3-5, 539:24-540:5. Similarly, Remprex employee Ash testified that BNSF owned the biometric data and stored it on computer servers that BNSF owned- after purchasing them from Remprex-and kept in server rooms located in its railyards. Ash also testified that BNSF licensed the AGS software and that it was "fair to say that it is . . . BNSF's hardware and software with that qualification," id. 434:7-17, and Remprex CEO Diebes stated that BNSF owned the data. Diebes further explained that Remprex was contractually obligated to provide the data to BNSF upon request and that he could not think of "any circumstances where BNSF wanted access to the data . . . [and] would not get access to that data." Id. 1083:18-21.
Rogers testified at trial about his experience with BNSF. He stated that he had worked as a truck driver for various trucking companies and that he visited BNSF's facilities many times. Rogers also explained that he was asked to register his fingerprints twice, and BNSF's data systems expert testified that Rogers's first registration was on November 5, 2012. Rogers brought this suit in April 2019.
BNSF employee Burris testified that after learning of Rogers's lawsuit, BNSF learned from Remprex that "there had not been . . . consents in...
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