Trends In Class-Action Litigation

On Oct. 12, 2022, the Illinois Biometric Information Privacy Act (BIPA), a state law that restricts collection of biometric data, made headlines again when a Chicago jury rendered a $228 million judgment against BNSF Railway Co. in the first BIPA class action to go to trial.

The case, Rogers v. BNSF Railway Co., relates to the collection of fingerprints of truck drivers entering a railyard. The award is a significant development because the jury found BNSF liable even though the company had hired a third party to install and manage the automatic gate system that used biometric data for security purposes.

Specifically, the jury found BNSF responsible for compliance with BIPA and recklessly or intentionally violating the law more than 45,000 times -- once for each member of the putative class.

BIPA has received a significant amount of attention since 2015, when Facebook was hit with a class-action lawsuit that alleged the social media giant violated BIPA with facial recognition software in its ‘tag suggestions’ feature.

Facebook ultimately agreed to pay $650 million to resolve the class action in one of the largest BIPA-related settlements on record. BIPA class actions against other social media and tech companies soon followed, as did additional multimillion-dollar settlements, including Google’s agreement to pay $100 million to resolve BIPA class claims, TikTok’s $92 million settlement, and Snapchat’s $35 million settlement.