BNSF and a class of truck drivers have reached a settlement in a case regarding the digital fingerprinting of the drivers in Illinois that threatened to cost the railroad $228 million.

The two sides in the litigation in U.S. District Court for the Northern District of Illinois reached an agreement on a settlement Friday. Judge Matthew Kennelly entered the order Monday that cleared a path for that settlement to be formally approved by the end of October. The monetary size of the settlement was not disclosed.

BNSF, a subsidiary of Berkshire Hathaway (NYSE: BRK.B), lost a trial in the case in October 2022. The named defendant in the case was a truck driver named Richard Rogers, whose employer was identified in court documents as a “third party logistics company,” though elsewhere in documents he is described as working for “various trucking companies.” He was said to have visited BNSF’s four Illinois facilities “many times.”

Rogers’ lawsuit eventually turned into a class action involving enough drivers that the damages it faced after losing the trial were $228 million, reached by scanning 44,139 individuals over a six-year period and a potential penalty of $5,000 per infraction under the Illinois Biometric Information Privacy Act (BIPA).

The number of scans reported in the program was not equal to the number of violations. The jury found that BNSF had “recklessly or intentionally” violated BIPA 45,600 times. The violations took place between April 2014 and January 2020, according to the lawsuit.

Kennelly’s ruling on the question of damages was that BIPA’s penalty provisions can be interpreted in several different ways. A jury should have been required to sort out the damages, the judge ruled, rather than a tight formula being used. 

The heart of the dispute was that while BNSF was entitled to record biometric information from the drivers who visited its intermodal facilities in Illinois, it didn’t acquire consent from them, as required by BIPA.

“Although defendant collected, captured and stored biometric identifiers and biometric information, it failed to provide any written disclosures describing the purpose and duration of such use and failed to obtain informed written consent from … drivers prior to collecting, capturing and storing such information,” an amended complaint from Rogers and other class defendants said in summing up their case against BNSF.

After the verdict against BNSF was handed down last year, the company appealed the financial penalty on the grounds that the size of the award should have been determined by a jury rather than a formula under BIPA. Judge Kennelly agreed, but before a jury could decide the matter, the two sides reached the settlement.

During the trial, a BNSF employee testified that after Rogers had filed his suit in April 2019, the railroad had learned from its contractor on the project that “there had not been consents in place at the facilities.”

That employee, Chuck Burris, testified that BNSF “could have directed Remprex (the contractor) to turn off biometrics” and that the company knew the continued collection of biometrics data without consent may have been illegal under BIPIA. But Burris also testified that the biometrics continued to be gathered until March 2020, and that concerns related to COVID, as well as the Rogers lawsuit that at that point was almost a year old, led to that decision. 

The CEO of Remprex, Remy Diebes, testified that even after the lawsuit, “the process of taking truck drivers’ fingerprints without giving them disclosures” was not interrupted and that BNSF did not begin seeking consent as it continued the program.

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