--- title: Waters No Less Rocky After Landmark BIPA Settlement date: 2024-04-03T11:35:00-04:00 author: "acolucci@kelleydrye.com" canonical_url: "https://www.kelleydrye.com/viewpoints/blogs/labor-days/waters-no-less-rocky-after-landmark-bipa-settlement" section: Blog Posts --- # Waters No Less Rocky After Landmark BIPA Settlement April 3, 2024 ## Waters No Less Rocky After Landmark BIPA Settlement A year and a half has passed since one of the most remarkable jury verdicts in Illinois history. The *Rogers v. BNSF* case was the first Illinois Biometric Information Privacy Act (“BIPA”) case tried to a jury verdict, with the jury finding BNSF liable for thousands of BIPA violations and federal Judge Matthew Kennelly awarding statutory damages of $228,000,000 to the class of plaintiffs. In our [prior publication about the *Rogers* verdict](https://www.kelleydrye.com/viewpoints/blogs/labor-days/bipa-goes-on-trial/#more-3502), we noted that the case was tried before the Illinois Supreme Court decided the *Tims v. Black Horse Carriers* and the *Cothron v. White Castle System Inc.* cases. As we discussed, [the *Tims* and *Cothron* decisions](https://www.kelleydrye.com/viewpoints/blogs/labor-days/bipa-becomes-the-monster-employers-feared/) made BIPA an unwieldly monster for Illinois employees. The Illinois Supreme Court in *Tims*held that a 5 year statute of limitations applies to BIPA claims and, in *Cothron*, the court held that a BIPA violation accrues with each unauthorized use of a biometric device. BIPA allows statutory damages amounts of $1,000 per violation for negligent violations and $5,000 per violation for intentional or reckless violations. Applied to the *Rogers* case in which Judge Kennelly used the $5,000 reckless standard, the statutory damages award under the *Cothron* method would have multiplied considerably from the $228 million. In *Rogers*, the jury held that 45,600 individuals had their biometric information used in violation of the Act, but the number of distinct violations was not calculated. However, in June 2023, Judge Kennelly vacated his $228 million damages award upon further argument of this issue. He held that the jurors should have determined the award, not the court. Judge Kennelly set the case for a second trial on the issue of damages only. On one hand, this was a tremendous victory for BNSF – the $228 million award disappeared. On the other hand, a damages trial subject to the Illinois Supreme Court’s *Cothron* interpretation of BIPA could subject BNSF to an even greater damages award (45,600 individuals multiplied by the number of times each individual used the biometric device, multiplied again by the amount of damages the jury could award for each violation). Considering the legal developments of the *Rogers* case and the *Tims* and *Cothron*decisions in the last year and half, the BIPA landscape still presented risks for both the *Rogers* class action plaintiffs and BNSF. As a result, the parties agreed to a $75 million settlement in lieu of a damages trial. The settlement amount will be divided between the 46,500 class members after attorneys’ fees and costs. Employers nationwide remain hopeful for legislative solutions to BIPA’s draconian damage regime, though none immediately materialized in the wake of *Tims* and *Cothron*. It has been reported, however, that the Illinois General Assembly is considering the way liability accrues under BIPA. If you have any questions about BIPA, please reach out to [Matthew Luzadder](mailto:MLuzadder@KelleyDrye.com). **Tags:** [Labor and Employment](https://www.kelleydrye.com/viewpoints/blogs/labor-days/tags/labor-and-employment) - Share this entry - - - - - [ View entry pdf ](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/pdf-snapshots/waters-no-less-rocky-after-landmark-bipa-settlement-20240523093611.pdf) ### Search Blog ### Subscribe ### Explore Topics - [BIPA](https://www.kelleydrye.com/viewpoints/blogs/labor-days/bipa) ### Related Services - [Employment Litigation](https://www.kelleydrye.com/practices/employment-litigation) - [The Illinois Biometric Information Privacy Act (BIPA)](https://www.kelleydrye.com/trending/the-illinois-biometric-information-privacy-act-bipa)