Rogers v. BNSF Railway Company

Plaintiff’s counsel have determined that you may be a member of a class action lawsuit. The notice explains that the Court has “certified” a class action lawsuit that may affect you. You have legal rights and options that you may exercise before the Court holds a trial. The lawsuit is to decide whether the claims being made against BNSF, on your behalf, are correct. Judge Matthew F. Kennelly of the United States District Court for the Northern District of Illinois is overseeing this class action. The lawsuit is called Rogers v. BNSF Railway Company, Case No. 1:19-cv-03083.

This class action alleges BNSF captured, collect, received through trade, or otherwise obtained the biometrics of individuals who visited its Illinois facilities without receiving informed written consent from those individuals. Plaintiff, a truck driver, claims that BNSF required him to submit his fingerprint biometrics in order to gain access to BNSF’s facilities in Illinois while he was delivering or picking up loads of freight. Plaintiff alleges that this practice of obtaining biometrics without informed written consent violated the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/et seq., and that Certified Class Members are entitled to recover statutory damages in the amount of $1,000 per negligent violation, in addition to other nonmonetary relief. BNSF denies these allegations.

In a class action, one or more “Plaintiffs,” also called “class representatives” (in this case, Richard Rogers) sue on behalf of themselves and other people with similar claims. All the people with similar claims are together called the “class” or “class members.” The company they sued (in this case, BNSF Railway Company) is called the “Defendant.” One court resolves the issues for all class members, except for those who exclude themselves from the class. A class action allows the claims of all class members to be more efficiently resolved than in separate lawsuits and provides a remedy for class members whose individual damages are not large enough to justify their own separate lawsuits.

The Court decided that the claims in this case can be a class action and move toward a trial because this case meets the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal courts. Specifically, the Court found that (a) there are more than enough people with similar claims, (b) there are legal questions and facts that are common to each of them, (c) the Plaintiff’s claims are typical of the claims of the rest of the class, (d) Plaintiff and the lawyers representing the class will fairly and adequately represent the class’ interests, (e) common legal questions and facts will predominate over questions that affect only individuals, and (f) this class action will be more efficient than having many individual lawsuits. More information about why the Court is allowing this lawsuit to be a class action is in the Court’s order certifying the class; the order of the appellate court affirms this order. Both documents are available here.

In this lawsuit, Plaintiff has alleged that, when visiting BNSF’s railyards in Illinois, he was required to submit his fingerprint biometrics in order to gain entrance to those facilities and drop off or pick up loads of freight. Plaintiff alleges that BNSF did not inform him or gain his informed written consent prior to capturing, collecting, receiving through trade, or otherwise obtaining his fingerprint biometrics. Plaintiff alleges that this practice of obtaining biometrics without informed written consent violated a law called the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/et seq., and that Certified Class Members are entitled to recover statutory damages in the amount of $1,000 per negligent violation, in addition to other nonmonetary relief. More information on Plaintiff’s allegations is available on the Documents page of this website.

BNSF denies all of Plaintiff’s allegations of wrongdoing and denies that it violated BIPA in any way. BNSF further disputes that this action satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and contends that this action should not proceed on behalf of a class. In addition, BNSF disputes that certain Class Members’ claims can properly proceed in court and contends that such claims are barred by the statute of limitations for BIPA claims. More information on BNSF’s responses to Plaintiff’s allegations is available on the Documents page of this website.

No. The Court has not determined whether BNSF violated BIPA. Nor has the Court determined what, if any, money or other relief is available to the class. By establishing the class and issuing the notice, the Court is not determining that the Plaintiff will win or lose this case. Plaintiff must prove his claims at an upcoming trial.

No money or other benefits are available at this time. The Court has not yet decided whether BNSF did anything wrong. Further, the two sides have not settled the case. There is no guarantee that money or benefits will ever be obtained. If they are, you will be notified about how you may receive such benefits.

Judge Kennelly has decided that the class includes:

All 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.

If you received the notice via the U.S. Mail, Plaintiff’s counsel have determined that you are a member of the class. If you did not receive such a notice and are not sure whether you are included, you can get free help by calling, writing, or emailing the lawyers for the class whose contact information is provided in FAQ 14.

No, you do not have to do anything at all to stay in the class action, and staying in the class action is the only way to receive any potential money or other benefits from this case. If you do nothing, then you will automatically stay in the class action as a Class Member, and you will automatically be notified if you are entitled to receive any money or benefits from this case.

Keep in mind that if you stay in the class, regardless of whether the Plaintiff wins or loses at trial, you will not be able to sue, or continue to sue, BNSF about the same issues that are the subject of this class action. You will also be legally bound by all orders the Court issues and judgments the Court makes in this class action, whether favorable or unfavorable to the class.

If you exclude yourself from the class—which means to remove yourself from the class and is sometimes called “opting out” of the class—you won’t get any money or benefits from this lawsuit even if the Plaintiff obtains them as a result of the trial between BNSF and Plaintiff. However, you may then be able to sue or continue to sue (at your own expense) BNSF regarding the claims at issue in this class action. If you exclude yourself, you will not be legally bound by the Court’s judgments in this class action.

If you start your own lawsuit against BNSF after you exclude yourself, you’ll have to hire and pay your own lawyer for the lawsuit, and you’ll have to prove your claims. If you do exclude yourself so you can start or continue your own lawsuit against BNSF, you should talk to your lawyer soon because your claims may soon be barred by a statute of limitations.

To ask to be excluded, you must send an “Exclusion Request” in the form of either a letter sent by U.S. Mail or an email stating that you want to be excluded from the BNSF BIPA class action. Your Exclusion Request must include your complete name, address, email, telephone number, and signature. Exclusion Requests must be signed to be valid. If you choose to mail your Exclusion Request, send it to: BNSF BIPA Class Action Lawsuit, P.O. Box 5803, Portland, OR 97228-5803. If you choose to email your Exclusion Request, email it to: optout@BNSFBIPAClassAction.com. Exclusion Requests that are not postmarked or emailed by August 29, 2022, will not be recognized.

Yes, if you are a member of the class defined above and do not exclude yourself, then you automatically have a lawyer representing you at no out-of-pocket cost to you. The Court has appointed lawyers that the Court has decided are qualified to represent you and all Class Members. These lawyers are called “class counsel” and are experienced in handling class actions and complex cases. The lawyers who have been appointed as class counsel are:

Myles McGuire
Evan M. Meyers
David L.Gerbie
Brendan Duffner
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
 mmcguire@mcgpc.com
 emeyers@mcgpc.com
 dgerbie@mcgpc.com
 bduffner@mcgpc.com
 1-312-893-7002

More information about class counsel is available at www.mcgpc.com.

You do not need to hire your own lawyer because class counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer. For example, you can ask them to appear in court for you in this case if you want someone other than class counsel to speak for you.

If class counsel recover money or benefits for the class, they may ask the Court for fees and expenses. You won’t have to pay these fees and expenses out of your own pocket. Rather, if the Court grants class counsel’s request, the fees and expenses would be either deducted from any money obtained for the class or paid separately by BNSF.

The Court has scheduled a trial to decide who is right in this case. The trial will begin on October 4, 2022, if the case isn’t resolved by a settlement or otherwise. Information about the date and location of the trial will be posted on this website.

If a trial goes forward, class counsel will have to prove the Plaintiff’s claims at a trial. During the trial, a jury will hear all the evidence to help them reach a decision about whether the Plaintiff or BNSF is right about the claims in the lawsuit. There is no guarantee that the Plaintiff will win or that they will get any money for the class.

You do not need to attend the trial. Class counsel will present the case for the Plaintiff and the Class Members, and BNSF will present the defenses. The results of the trial will be posted on this website.

If the Plaintiff obtains money or benefits as a result of the trial or a settlement, you will be notified about how to obtain the money or benefits. We do not know how long this will take.

Visit the Documents page of this website to find the Court’s Order certifying the class, the Second Amended Complaint filed by the Plaintiff, and BNSF’s Answer to the Second Amended Complaint, among other documents. You may also speak to class counsel, whose contact information is listed below, free of charge.

Please do not contact the Court with questions about this case. The Court will not provide Class Members with legal advice or information about this case.

Please contact class counsel (listed below) if you have any questions about this case.

Myles McGuire
Evan M. Meyers
David L.Gerbie
Brendan Duffner
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
 mmcguire@mcgpc.com
 emeyers@mcgpc.com
 dgerbie@mcgpc.com
 bduffner@mcgpc.com
 1-312-893-7002