Rogers v. BNSF Railway Company

          IN THE UNITED STATES DISTRICT COURT                        
         FOR THE NORTHERN DISTRICT OF ILLINOIS                       
                   EASTERN DIVISION                                  


RICHARD ROGERS, individually  )                                           
and on behalf of similarly     )                                          
situated individuals,         )                                           
                         )                                           
          Plaintiff,     )                                           
                         )                                           
vs.                      )         Case No. 19 C 3083                
                         )                                           
BNSF RAILWAY COMPANY,         )                                           
                         )                                           
          Defendant.     )                                           


            MEMORANDUM OPINION AND ORDER                             
MATTHEW F. KENNELLY, District Judge:                                      
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.                                                                  
                      Background                                     

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.

 1086:15–
16.                                                                       
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. 812:23–
24.  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 place at the [facilities]."  
Id. 601:6–8.  Burris also stated that BNSF "could have directed [Remprex] to turn off 
biometrics" and that "[BNSF's] position was Remprex was doing something illegal," but 
he admitted that BNSF did not turn off biometrics until March 2020 because of concerns 
related to "COVID-19 and the pending lawsuit."  Id. 579:12–13, 582:17, 611:5.  
Remprex CEO Diebes similarly testified that after BNSF was sued (in April 2019), "the 
process of taking truck drivers' fingerprints without giving them disclosures" continued 
through the rest of 2019, and BNSF "did not direct [Remprex] to obtain consents from 
the drivers."  Id. 1238:11–14, 22–25.                                     
On the last full day of trial, BNSF filed an offer of proof regarding the issue of 
preemption.  The Court accepted the offer of proof but overruled BNSF's apparent 
attempt to inject this issue into the trial, as it had previously ruled that preemption was 
not an issue for the jury.                                                

BNSF also moved under Federal Rule of Civil Procedure 37 to preclude Rogers 
from arguing to the jury that each registration or subsequent scan of a driver's 
fingerprints constituted a separate BIPA violation or that each driver's registration 
constituted three violations because registration involved scanning three different 
fingers.  Prior to trial, the Court had ruled that Rogers's expert could not testify regarding 
the total number of BIPA violations because he did not include this in the Rule 26(a)(2) 
disclosure provided to the defendants during discovery.  At trial the Court concluded 
that Rogers had also failed to appropriately disclose his methodology for determining 
the total number of violations of BIPA, a determinative factor in calculating damages. As 
a result, the Court ruled that Rogers had not satisfied his disclosure obligations under 

Rule 26 and granted BNSF's Rule 37 motion.                                
As indicated earlier, the Court also concluded, prior to trial, that a monetary 
award under BIPA is a liquidated amount that would depend on the jury's findings 
regarding BNSF's intent.  Thus the Court did not submit to the jury the question of the 
amount of money to award.  Instead it asked the jury to determine the number of BIPA 
violations and the question of intent.  The jury found that BNSF had recklessly or 
intentionally violated BIPA 45,600 times.  The Court then entered judgment in favor of 
the plaintiff class in the amount of $228 million—45,600 BIPA violations multiplied by 
$5,000 per violation.                                                     
                       Discussion                                    
Under Federal Rule of Civil Procedure 50(b), judgment as a matter of law is 
proper if "a reasonable jury would not have a legally sufficient evidentiary basis" to 
support a verdict for the nonmovant.  Fed. R. Civ. P. 50(a)(1), (b); see Thorne v. 

Member Select Ins. Co., 

882 F.3d 642, 644

 (7th Cir. 2018).  On a Rule 50(b) motion, a 
court "construes the evidence strictly in favor of the party who prevailed before the jury 
and examines the evidence only to determine whether the jury's verdict could 
reasonably be based on that evidence."  Passananti v. Cook County, 

689 F.3d 655, 659

 
(7th Cir. 2012).  "That includes drawing all reasonable inferences in that party's favor 
and disregarding all evidence favorable to the moving party that the jury is not required 
to believe."  May v. Chrysler Group, LLC, 

716 F.3d 963, 971

 (7th Cir. 2012).  Courts are 
"obligated to review the record to ensure that sufficient evidence exists to support the 
verdict, but [courts] will not otherwise consider the weight of the evidence" or 
"reevaluate the credibility of witnesses."  McNabola v. Chicago Transit Authority, 

10 F.3d 501, 515

 (7th Cir. 1993).  Consequently, a jury verdict will be overturned only if the 
court concludes that "no rational jury could have found for the prevailing 
party."  Stragapede v. City of Evanston, 

865 F.3d 861, 865

 (7th Cir. 2017) (internal 
quotation marks omitted).                                                 
Under Rule 59(a), a new trial is warranted under Rule 59(a) if the verdict was 
"against the manifest weight of the evidence or if the trial was in some way unfair to the 
moving party."  Martinez v. City of Chicago, 

900 F.3d 838, 844

 (7th Cir. 2018).  In 
making this determination, a court "has the power to get a general sense of the weight 
of the evidence, assessing the credibility of the witnesses and the comparative strength 
of the facts put forth at trial."  Whitehead v. Bond, 

680 F.3d 919, 928

 (7th Cir. 
2012).  The Seventh Circuit has cautioned, however, that a court should grant a new 
trial "only when the record shows that the jury's verdict resulted in a miscarriage of 
justice or where the verdict, on the record, cries out to be overturned or shocks our 

conscience."  Estate of Burford v. Accounting Practice Sales, Inc., 

851 F.3d 641, 646

 
(7th Cir. 2017).  Similarly, "Rule 59(e) allows a court to alter or amend a judgment only if 
the petitioner can demonstrate a manifest error of law or present newly discovered 
evidence."  Obriecht v. Raemisch, 

517 F.3d 489, 494

 (7th Cir. 2008).      
A.   BNSF's motions                                                       
BNSF moves for judgment as a matter of law or a new trial or amended judgment 
on three grounds:  (1) there was insufficient evidence for a jury to find that BNSF itself 
or an agent of BNSF intentionally or recklessly violated BIPA, (2) federal law preempts 
Rogers's BIPA claim, and (3)(a) damages are discretionary under BIPA, and (b) the 
damages award in this case was violated constitutional due process limitations.  The 

Court addresses each argument in turn.                                    
1.   Sufficiency of the evidence                                     
BNSF contends that based on the evidence presented at trial, no reasonable jury 
could have found that it directly violated BIPA or was vicariously liable for Remprex's 
violations of the statute.  BNSF also argues that even if it did violate BIPA, it was 
unreasonable for the jury to find that it did so intentionally or recklessly.  The Court 
disagrees.                                                                
     a.   Direct violation                                           
There was sufficient evidence for a reasonable jury to find that BNSF itself 
"collect[ed], purchase[d], receive[d] through trade, or otherwise obtain[ed]" Rogers's and 
other class members' biometric information.  740 ILCS 14/15(b).  Although Remprex 
employees were the ones who collected or captured the drivers' fingerprints, a 
reasonable jury could find that BNSF "otherwise obtained" the data.  Three witnesses—

BNSF employee Burris, Remprex employee Ash, and Remprex CEO Diebes—testified 
that BNSF owned the data.  Burris also agreed that BNSF obtained the data because it 
was stored on computer servers that BNSF owned, and Ash similarly testified that 
BNSF owned the servers and kept those servers in BNSF railyards in Illinois.  Ash and 
Diebes also stated that the data was not Remprex's to sell or treat as an asset, and 
even though BNSF did not have direct access to the database itself, it could ask 
Remprex to provide any it at any time and Remprex would be obligated to do so. 
BNSF appears to argue that no reasonable jury could have credited this 
testimony over that of "[t]he BNSF witness familiar with the contracts"—Whitaker—who 
"testified that BNSF did not own the data or servers."  Def. BNSF.'s Reply at 12.  Yet 

even setting aside Burris's testimony on the basis that he "repeatedly stated that these 
questions of ownership are controlled by the contracts between BNSF and Remprex 
and he could not testify as to their meaning," 

id.,

 the jury was free to consider Ash's, 
Diebes's, and Whitaker's testimony "and resolve any inconsistencies in their testimony 
however it [saw] fit"; a Rule 50(b) motion does not call upon a court to "consider the 
weight of evidence" or "reevaluate the credibility of witnesses."  United States v. 
Hodges, 

315 F.3d 794, 799

 (7th Cir. 2003).  The jury therefore could have credited the 
testimony of Ash and Diebes over that of Whitaker and concluded that BNSF (1) owned 
the biometric data, (2) stored that data on servers that it also owned, (3) kept those 
servers on its physical property, and (4) could access the data at any time.  A jury that 
came to those conclusions could reasonably find that BNSF itself "otherwise obtained" 
the biometric data and thus directly violated section 15(b).              
     b.   Vicarious liability                                        

Sufficient evidence also supports the alternative conclusion that BNSF is 
vicariously liable for Remprex's violations of BIPA.  BNSF contends that Remprex was 
an independent contractor rather than an agent, pointing to language in its contract with 
Remprex to that effect.  But "[t]he fact that the contract designated [a party] as an 
independent contractor is not controlling[,]" McConnell v. Freeman United Coal Co., 

198 Ill. App. 3d 322, 327

, 

555 N.E.2d 993, 996

 (1990), and BNSF did not object to the jury 
instruction stating this.  The instructions to the jury further stated that Remprex was an 
agent of BNSF's "[i]f BNSF had the right to control the actions of Remprex with regard 
to collecting, capturing, purchasing, receiving through trade, or otherwise obtaining 
biometric identifiers or biometric information[.]"  Jury Instructions at 15.  As relevant to 

this case, the Illinois Supreme Court has held that "it [is] not unreasonable for the jury to 
conclude that [a defendant]'s conduct was consistent with a principal exercising control 
over its agent by directing it to obtain specific information and providing it with the 
necessary tools to accomplish the task."  Lawlor v. N. Am. Corp. of Ill., 

2012 IL 112530, ¶ 50

, 

983 N.E.2d 414

, 429.                                                
BNSF also cites to testimony by Ash that Remprex could hire, fire, and set pay 
for its employees without direction from BNSF and "g[ot] to use its own manner and 
methods in performing the service."  Tr. Transcript 344:8–10.  Yet Ash later clarified that 
"Remprex does not indicate [the manner and the method for the daily operations] on [its] 
own" but instead does so "in coordination with BNSF[.]"  

Id.

 344:18–24.  He also stated 
that BNSF had the authority to decide whether to exempt a driver from registering his 
fingerprints or to turn off the AGS because it—not Remprex—was "calling the shots" 
and "had control of the ongoing decision to keep collecting and capturing" the 

biometrics.  

Id.

 433:12–13, 435:1–3.  The jury reasonably could have credited all of 
Ash's testimony on this topic.  And given that BNSF purchased "the hardware, the 
kiosks, the intermodal gate arms, and the fingerprint scanners" from Remprex, 

id.

 
518:14–16, the evidence supported a finding that Remprex was an agent because 
BNSF "direct[ed] [Remprex] to obtain specific information and provid[ed] [Remprex] with 
the necessary tools to accomplish the task."  Lawlor, 

2012 IL 112530, ¶ 50

, 983 N.E.2d 
at 429.                                                                   
There is no merit to BNSF's argument that even if Remprex were an agent, 
BNSF cannot be liable for Remprex's violations of BIPA because those actions were 
outside the scope of its authority.  BNSF did not object to language in the jury 

instructions stating that "[a]n agent acts within the scope of its authority if it is engaged 
in an activity that has been assigned to it by the principal, or if it does something that 
may reasonably be said to have been contemplated as a part of that activity that 
benefits the principal."  Jury Instructions at 17.  In this case, there was evidence that 
allowed a reasonable jury to find that Remprex was engaged in an activity—collecting 
the drivers' biometric information—that was assigned to it by its contract with BNSF, and 
this activity clearly benefitted BNSF because BNSF had specifically sought out a 
biometric system in the first place.  BNSF provides no legal support for the assertion 
that the relevant "activity" is violating BIPA as opposed to collecting biometric data.  
This would make no sense, because it would permit a principal to escape liability for its 
agent's actions unless it specifically assigned the agent to violate the law.   
The Court concludes that there was sufficient evidence for a reasonable jury to 
find that Remprex was an agent of BNSF and, alternatively, that BNSF is vicariously 

liable for Remprex's collection of biometric data in violation.           
     c.   Intentional or reckless violations                         
BNSF also contends that even if it directly or vicariously violated BIPA, no 
reasonable jury could have found that it did so intentionally or recklessly.  The Court 
disagrees.                                                                
"BNSF acted 'recklessly' if it consciously disregarded or was utterly indifferent to 
the plaintiffs' rights."  Jury Instructions at 13.  BNSF argues that it could not have been 
reckless because there is no evidence that either it or Remprex was aware of BIPA until 
April 2019.  Although "it would not follow that ignorance of [a plaintiff]'s rights was 
reckless," Soderbeck v. Burnett County, 

752 F.2d 285, 291

 (7th Cir. 1985), 

recklessness means "something more than negligence but less than knowledge of the 
law's requirements."  Murray v. New Cingular Wireless Servs., 

523 F.3d 719, 726

 (7th 
Cir. 2008).  As Rogers points out, at least two other courts in this district have 
concluded that because BIPA was enacted in 2008, a defendant's violation of the 
statute years later was enough at the pleading stage to allege recklessness when 
"[g]iving the Plaintiffs the benefit of reasonable inferences."  Marsh v. CLS Plasma Inc., 

503 F. Supp. 3d 677

, 686 (N.D. Ill. 2020); see also Neals v. Par Tech. Corp., 

419 F. Supp. 3d 1088

, 1092–93 (N.D. Ill. 2019).  Because a court must "draw all reasonable 
inferences in [the non-movant]'s favor and disregard all evidence favorable to the 
moving party that the jury is not required to believe" in ruling on a motion for judgment 
as a matter of law, May, 

716 F.3d at 971

, this Court declines to conclude that BNSF 
could not have acted recklessly because it did not know of a law that, at the time of the 
first violations at issue, had been in effect for at least six years.     

Rather, there is far more than "a mere scintilla of evidence" in the record that 
supports the jury's verdict.  

Id.

  When viewed in favor of Rogers, the evidence shows 
that BNSF (1) sought proposals from vendors for an automated gate system, (2) 
required that the system include biometric capabilities, (3) licensed the software and 
purchased the hardware and servers used to capture the data, and (4) owned—or at 
least led Remprex to believe it owned—the biometric data.  Yet BNSF itself stated that 
despite having a legal department, it outsourced compliance with applicable laws to 
Remprex, which was a newly formed, two-person operation at the time BNSF selected it 
to implement the biometric system.                                        
Years later, upon learning in April 2019 that this system of delegating compliance 

to Remprex may have led it to overlook and violate an applicable law, BNSF initiated 
discussions with Remprex about the BIPA's requirements and later sued Remprex.  Yet 
BNSF continued collecting biometrics for nearly a year, until March 2020, and BNSF 
employee Burris stated that the decision to stop was driven by concerns about COVID-
19 and Rogers's suit.  Although BNSF is correct that it was not required to stop 
collecting biometrics immediately upon learning of the lawsuit, the Court cannot say it is 
unreasonable for the jury to infer conscious disregard or utter indifference—after all, at 
that point BNSF knew that collecting biometric data may violate BIPA but chose to 
continue doing so for almost another year.  BNSF's argument that such recklessness 
would only be limited to the post-April 2019 period is unpersuasive.  As Rogers points 
out, "[t]he jury could have reasonably concluded that BNSF's benign explanation for its 
violations in the earlier years" was not credible "because once BNSF did learn, it took 
no steps to solve the problem."  Pls.' Resp. in Opp. to Def.'s Renewed Mot. at 11. 

For these reasons, the Court denies BNSF's motion for judgment as a matter of 
law as it relates to sufficiency of the evidence presented at trial.      
2.   Preemption                                                      
BNSF argues that it is entitled to judgment as a matter of law because three 
federal statutes—the Federal Aviation Authorization Act (FAAAA), the Federal Railroad 
Safety Act (FRSA), and the Interstate Commerce Commission Termination Act 
(ICCTA)—preempt Rogers's BIPA claim.  The Court overruled the preemption defense 
when it ruled on summary judgment, and to the extent that BNSF reasserts those 
arguments, the Court overrules them for the reasons it stated in that ruling.  See 
Summary Judgment Decision, 

2022 WL 787955

, at *2–6.                       

BNSF also relies on an offer of proof that it filed on the last day of trial, long after 
the Court ruled on the point on summary judgment, and also well after the Court granted 
Rogers's motion in limine to exclude from the trial evidence or testimony regarding 
preemption, which BNSF itself agreed was not a jury issue.  BNSF now argues that the 
Court should allow BNSF to present this evidence in a new trial because its preemption 
arguments are "fact-bound," but it conceded during both the motion in limine hearing 
and the offer of proof colloquy that preemption is not an issue for the jury to decide.  
And it made no effort to present any of the evidence in its offer of proof in response to 
the motion in limine or at any time before the last day of trial.  When the Court asked 
why the jury would hear evidence on an issue that it does not decide, counsel for BNSF 
could offer no justification or reasoning.  For all of these reasons, although BNSF 
unquestionably preserved preemption for appellate review by way of its submissions in 
connection with summary judgment, the Court considers forfeited any additional factual 

material found in the offer of proof that BNSF did not submit at summary judgment. 
3.   Damages                                                         
BNSF also contends that the amount of damages is a question for the jury to 
decide.  The Court agrees.                                                
Section 20 of BIPA states:                                           
Any person aggrieved by a violation of this Act shall have a right of action 
in a State circuit court or as a supplemental claim in federal district court 
against an offending party.  A prevailing party may recover for each 
violation:                                                           

(1) against a private entity that negligently violates a provision of this Act, 
liquidated damages of $1,000 or actual damages, whichever is greater; 

(2) against a private entity that intentionally or recklessly violates a provision of
this Act, liquidated damages of $5,000 or actual damages, whichever is greater; 

(3) reasonable attorneys' fees and costs, including expert witness fees and other 
litigation expenses; and                                             

(4) other relief, including an injunction, as the State or federal court may deem
appropriate.                                                         

740 ILCS 14/20.  BNSF argues that damages—and the amount of any award of  
damages—are discretionary under BIPA because Section 20 provides that "[a] 
prevailing party may recover [damages, fees and costs, and other relief] for each 
violation."  

Id.

 (emphasis added).  In contrast, the same section also states that "[a]ny 
person aggrieved by a violation of [BIPA] shall have a right of action," 

id.

 (emphasis 
added), and "[l]egislative use of the word 'may' is generally regarded as indicating a 
permissive or directory reading, whereas use of the word 'shall' is generally considered 
to express a mandatory reading."  People v. Reed, 

177 Ill. 2d 389, 803

, 

686 N.E.2d 584, 586

 (Ill. 1997); see also Commonwealth  Edison Co. v. Illinois Commerce Comm'n, 
2014 IL App 132011, ¶ 41 n.2, 

16 N.E.3d 801, 813

 ("When the legislature has used both 

may and shall in the same paragraph of a statute, a court infers that the legislature 
acknowledged the difference and intended each word to carry its ordinary meaning.") 
(internal citation and quotation marks omitted).  Based on this reasoning, BNSF asserts 
that courts or juries may award any amount up to $1,000 for a negligent violation of 
BIPA and any amount up to $5,000 for an intentional or reckless violation.  
The statute does not include the words "up to" or any other language suggesting 
that the Illinois legislature intended damages to be a range.  Rather, it states that a 
prevailing party may recover the greater of actual damages or "liquidated damages of" 
$1,000 or $5,000.  740 ILCS 14/20(1), (2) (emphasis added).  This Court has previously 
noted that "the term 'liquidated damages' has an established meaning in the law" and 

"[i]t means a fixed amount."  Tr. of Proceedings, Sept. 6, 2022, 14:1–3 (dkt. no. 229); 
see also Karimi v. 401 N. Wabash Venture, LLC, 2011 IL App 102670, ¶16, 

952 N.E.2d 1278, 1290

 ("The nature of a liquidated damages provision is such that the set amount 
may at times exceed actual damages, and other times actual damages may exceed the 
set amount."), Int'l Capital Corp. v. Mayer, 

347 Ill. App. 3d 116, 124

, 

806 N.E.2d 1166, 1172

 (2004) ("Moreover, 'liquidated damages' means 'an amount contractually 
stipulated as a reasonable estimation of actual damages to be recovered by one party if 
the other party breaches.') (quoting Black's Law Dictionary 395 (7th ed. 1999)).  The 
Court therefore concluded prior to trial that the use of "may" in Section 20 permitted a 
prevailing party to recover the greater of either actual damages or a fixed amount of 
$1,000 or $5,000, depending on the level of intent (if any) found by the jury.  
Although Illinois courts have not squarely addressed the issue, BNSF is correct 
that this Court should decide this question based on how it believes the Illinois Supreme 

Court is likely to rule.  Federal courts "apply the relevant decisions of the Illinois 
Supreme Court" in determining issues of state law, "and if a question of law has not yet 
been decided by that court, we are to make a 'prediction of how the Supreme Court of 
Illinois would rule' on it[.]"  Straits Financial LLC v. Ten Sleep Cattle Co., 

900 F.3d 359, 369

 (7th Cir. 2018) (quoting Cmty. Bank of Trenton v. Schnuck Markets, Inc., 

887 F.3d 803

, 811–12 (7th Cir. 2018)).  In making these "Erie Guesses," federal courts "are to 
take into account trends in a state's intermediate appellate decisions, but the focus is 
always a prediction about the state's highest court."  Cmty. Bank of Trenton, 

887 F.3d at 811

.  "[W]here direct expression by an authorized state tribunal is lacking, it is the duty 
of the federal court, in dealing with matters of either common law or statute, to have 

regard for any persuasive data that is available, such as compelling inferences or logical 
implications from other related adjudications and considered pronouncements."  
Hartzler v. Chesapeake & Ohio Ry. Co., 

433 F.2d 104, 107

 (7th Cir. 1970)  
Four months after the trial in this case, the Illinois Supreme Court cited to the use 
of "may" in section 20 and a decision by the Illinois Appellate Court in concluding that 
"[i]t also appears that the General Assembly chose to make damages discretionary 
rather than mandatory under [BIPA]."  Cothron v. White Castle Sys., Inc., 

2023 IL 128004

, ¶ 42.  The Illinois Appellate Court decision that Cothron referenced, Watson v. 
Legacy Healthcare Fin. Servs., 2021 IL App 210279, included a footnote stating that 
"[a]lthough we do not address the issue of damages . . . we observe that damages are 
discretionary not mandatory.  [Section 20 of BIPA] introduces a list of possible damages 
with the statement that this list constitutes what a 'prevailing party may recover.'"  Id. ¶ 
66 n.5, 

198 N.E.3d 571

, 582 (emphasis in original)                        

Rogers points out that these statements are dicta because the question of 
whether damages are discretionary under BIPA was not before the court in either case.  
But "[d]icta from a state supreme court is good evidence of how the court would decide 
an issue it has not yet directly encountered . . . . [and] offers the clearest insight into 
how the court would rule[.]"  Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., 

934 F.3d 553, 562

 (7th Cir. 2019); see also Hartzler, 

433 F.2d at 107

 ("[T]he obligation to accept 
[state court] interpretation extends not merely to definitive decisions, but to considered 
dicta as well.").  In Allen v. Transamerica Insurance Co., 

128 F.3d 462

 (7th Cir. 1997), 
the Seventh Circuit affirmed a district court's conclusion that dicta in an Illinois Supreme 
Court opinion was controlling because "[a]s a court sitting in diversity, we have a duty to 

attempt to predict the actions of the Illinois Supreme Court."  

Id.

 at 466–67.  Even 
though the district court was "critical of [the] position" and found the result to be 
"ludicrous," it nevertheless followed the dicta because that statement indicated how the 
Illinois Supreme Court would rule on the issue.  

Id. at 466

.  In this case, although the 
Cothron dicta does not address the statute's use of the term "liquidated damages of" a 
particular amount, it similarly suggests how the Illinois Supreme Court is likely to rule if it 
were to address this question in the future.                              
In response, Rogers argues that the Cothron dicta is limited to the specific 
context discussed in that case.  The Illinois Supreme Court held in Cothron that "a 
separate claim accrues under [BIPA] each time a private entity scans or transmits an 
individual's biometric identifier or information in violation of section 15(b) or 15(d)."  The 
court referenced discretionary damages in rejecting the argument that "allowing multiple 
or repeated accruals of claims by one individual could potentially result in punitive and 

'astronomical' damage awards that would constitute 'annihilative liability' not 
contemplated by the legislature and possibly be unconstitutional."  Cothron, 

2023 IL 128004

, ¶ 1, 40.  At oral argument on the post-trial motions, counsel for Rogers 
contended that rather than making damages under BIPA entirely discretionary, the 
Cothron dicta was referring to a court's ability to reduce damages awards that reached 
"astronomical" heights because of multiple or repeated accruals.  Because this Court 
limited recovery in this case to a single violation for each class member, Rogers asserts 
that this is not a situation in which damages are discretionary.          
Yet Rogers's reading of the statute would mean that a court or jury would 
determine the amount of damages for each violation if a plaintiff—or class of plaintiffs—

had enough separately-accruing claims to give rise "annihilative liability" for the 
defendant, but those same plaintiffs could recover a liquidated sum of either $1,000 or 
$5,000 if each had only one claim.  This sort of a distinction is not supported by the text 
of the statute:  section 20 is clear that "[a] prevailing party may recover for each 
violation[]" without any limiting or qualifying language.  740 ILCS 14/20 (emphasis 
added).  In arriving at its holding regarding multiple accruals, the court in Cothron also 
pointed out that "where statutory language is clear, it must be given effect."  

2021 IL 128004

, ¶ 40.  That same canon of statutory interpretation applies to Section 20, and 
the use of "may" and "each violation" indicates to this Court that to the extent that 
damages are discretionary, the discretion does not depend on the number of violations.  
The Court therefore sees no basis, in making an "Erie Guess," to disregard the Illinois 
Supreme Court's statement that "the General Assembly chose to make damages 
discretionary rather than mandatory under the Act."  Cothron, 

2021 IL 128004

, ¶ 42.   

Because the Court concludes damages under BIPA section 20 are discretionary, 
the Court agrees with BNSF that a damages award after a finding of liability is a 
question for the jury.  Although the Illinois Supreme Court discussed the court's 
discretion because class actions are a creature of equity in Illinois courts, it is a settled 
issue in federal court that "class action plaintiffs may obtain a jury trial on any legal 
issues they present."  Ortiz v. Fibreboard Corp., 

527 U.S. 815

, 845–46 (1999) (internal 
citation and quotation marks omitted).  The Seventh Amendment states that "[i]n suits at 
common law, where the value in controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved," U.S. Const., Amdt. 7, and it "applies not only to 
common-law causes of action, but also to 'actions brought to enforce statutory rights 

that are analogous to common-law causes of action ordinarily decided in English law 
courts in the late 18th century, as opposed to those customarily heard by courts of 
equity or admiralty.'"  Feltner v. Columbia Pictures Television, Inc., 

523 U.S. 340, 348

 
(1998) (quoting Granfinanciera, S.A. v. Nordberg, 

492 U.S. 33, 42

 (1989)).  As relevant 
to this case, the Seventh Circuit has concluded that a BIPA violation is "an invasion of 
[the plaintiff]'s private domain, much like an act of trespass would be."  Bryant v. 
Compass Grp. USA, Inc., 

958 F.3d 617, 624

 (7th Cir. 2020); see also Fox v. Dakkota 
Integrated Sys., LLC, 

980 F.3d 1146, 1153

 (7th Cir. 2020) (noting that the Ninth Circuit 
had "analogized the privacy injury from a BIPA violation to the privacy injury that has 
long been recognized as actionable at common law in a tort claim for invasion of 
privacy.").  The Court thus concludes that BNSF is entitled to have a jury determine the 
appropriate amount of damages.                                            
For the reasons above, the Court partially grants BNSF's motion for a new trial, 

vacates the award of damages, and orders a new trial limited to the question of 
damages.1                                                                 
B.   Rogers's motion                                                      
For his part, Rogers moves the Court to amend the judgment and order a partial 
new trial regarding the number of BIPA violations.  He also contends that the Court 
should amend the judgment to include prejudgment interest.  The Court denies the 
motion on both grounds.                                                   
1.   Number of BIPA violations                                       
In returning a verdict for Rogers, the jury found that BNSF violated BIPA 45,600 
times.  Rogers contends that this number is erroneous.  He says that he should have 

been able to argue that:  (1) BNSF committed three violations of BIPA—rather than a 
single violation—when it scanned three different fingers in the process of registering 
each class member, and (2) BNSF committed an additional violation each time it re-
scanned those class members' fingerprints during their subsequent visits to BNSF 
facilities.  As a result, Rogers asks the Court to amend the judgment to reflect that 
BNSF committed 136,800 BIPA violations (45,600 times three) and order a partial new 
trial on the total number of additional violations.                       


1 Because of this ruling, the Court need not address BNSF's arguments regarding the 
constitutionality of the damages award.                                   
On the last day of trial, BNSF moved under Rule 37 to preclude Rogers from 
presenting argument or evidence regarding the total number of fingerprint scans 
because it had not previously disclosed that information.  Federal Rule of Civil 
Procedure 26 requires parties to disclose "a computation of each category of damages" 

and "make available for inspection . . . the documents or other evidentiary material, 
unless privileged or protected from disclosure, on which each computation is based[.]"  
Fed. R. Civ. P. 26(a)(1)(A)(iii).  If a party "fails to provide information or identify a 
witness as required by Rule 26(a) or (e)," Rule 37 prohibits the party from "us[ing] that 
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless 
the failure was substantially justified or is harmless."  Fed. R. Civ. P. 37(c)(1).   
The Court had ruled in a pretrial hearing on the parties' motion in limine that 
Rogers's expert could not testify regarding the total number of BIPA violations because 
he did not do so in the Rule 26(a)(2) disclosure provided to the defendants during 
discovery.  That ruling did not, however, preclude Rogers from proving the number of 

total BIPA violations with other evidence aside from his expert's testimony.  When asked 
by the Court about the number of violations during the colloquy at trial, Rogers's counsel 
stated that they intended to argue that BNSF committed 1,171,608 BIPA violations.  
Counsel conceded that they had not previously disclosed this number or their 
calculation and that they did not disclose until the pretrial conference that they believed 
BNSF had violated BIPA three times for each class member.  Counsel argued that both 
of these failures to disclose were justified or harmless because (1) BNSF had moved to 
bar Rogers's expert from testifying about the total number of scans, and (2) one 
sentence in that expert's report stated that many drivers have three or more fingerprints 
in the database.  The Court overruled both arguments and granted BNSF's Rule 37 
exclusion request, ruling that there was no notice of the calculation or number of total 
violations and that the single mention of three fingerprint scans for some class members 
in Rogers's expert report was insufficient under Rule 26.                 

Rogers now contends that Rule 26 did not obligate him to disclose a calculation 
of the total number of BIPA violations—including the assumption that each class 
member suffered at least three violations—because it was a "factual issue that may 
ultimately relate to the determination of damages" rather than a computation of a 
monetary sum.  Pls.' Rule 59 Mot. to Amend J. at 10.  Yet because Rogers chose to 
seek liquidated damages rather than actual damages, the computation of damages in 
this case involves simply multiplying the total number of violations by either $1,000 or 
$5,000.  As a result, the Court agrees with BNSF that "the total number of statutory 
violations is the computation of damages," Def. BNSF's Opp. to Pls.' Rule 59 Mot. at 3 
(emphasis in original), because it would be impossible to determine the damages 

Rogers seeks without knowing how many BIPA violations he contends occurred. 
Rogers also reasserts that BNSF's Rule 37 exclusion request was untimely, 
contending that Brandt v. Vulcan, Inc., 

30 F.3d 752

 (7th Cir. 1994), supports his position 
because BNSF had long known that Rogers was seeking damages on the "per scan" 
theory.  In Brandt, the Seventh Circuit that a district court did not abuse its discretion in 
finding a Rule 37 motion untimely when the plaintiff "filed no subsequent motions to 
compel" despite "his obvious suspicion that [the defendant]'s responses were 
incomplete or false" and "let the matter rest" when his requests for updated discovery 
responses "produced no additional information."  

Id.

 at 756–57.  As BNSF points out, 
however, it filed a motion in limine upon learning that Rogers planned to offer testimony 
about the total number of BIPA violations from an expert who had not previously offered 
an opinion on that point.  As previously mentioned, the Court agreed with BNSF and 
precluded testimony on this topic from Rogers's expert at the final pretrial conference.  

In addition, the Court noted at trial that "it's been clear . . . from at least the time that the 
motions in limine were filed that [BNSF] has been complaining as loudly as it possibly 
could about being blindsided on the damages question."  Tr. Transcript 1312:20–23.  
BNSF is thus not situated similarly to the plaintiff in Brandt.  Given that notice of a legal 
theory is not equivalent to notice of "the evidence that [Rogers was] going to use and 
the number that [he was] going to come up with based on that legal theory," Trial Tr. 
1254:6–8, the Court sees no basis to find BNSF's Rule 37 exclusion request untimely.   
Lastly, Rogers contends that his failure to disclose was both justified and 
harmless.  "The determination of whether a Rule 26(a) violation is justified or harmless 
is entrusted to the broad discretion of the district court."  Mid–America Tablewares, Inc. 

v. Mogi Trading Co., 

100 F.3d 1353, 1363

 (7th Cir. 1996).  Relevant factors to consider 
include "(1) the prejudice or surprise to the party against whom the evidence is offered; 
(2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; 
and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier 
date."  David v. Caterpillar, Inc., 

324 F.3d 851, 857

 (7th Cir. 2003).  Even assuming that 
there would have been minimal disruption to the trial, Rogers's failure to timely disclose 
the number of total violations or violations per class member was unfairly prejudicial to 
BNSF.  When asked by the Court if "anybody said in any kind of a courtroom discussion 
or a filing . . . that it was likely that the [number of BIPA violations] to be argued to the 
jury is over a million[,]" Rogers's counsel conceded that they had not.  Tr. Transcript 
1253:15–21.  Counsel instead repeated the argument that BNSF knew of Rogers's "per 
scan" theory.  It is difficult to conclude, however, that BNSF would not be surprised or 
prejudiced when the case "goes from being a case of 44,000 . . . times a thousand or 

times 5,000, which, to be clear, is a very, very significant number to begin with, to being 
something that's literally 25 times greater than that."  

Id.

 1259:11–14.   
Rogers also asserts that BNSF had notice that it was seeking damages on a "per 
scan" basis because it moved in limine to exclude Rogers's expert from testifying about 
the total number of violations.  But as the Court noted at trial, there is a significant 
difference between "is a legal theory viable" and "the evidence that [Rogers was] going 
to use and the number that [he was] going to come up with based on that legal theory[.]"  
Trial Tr. 1254:4–8.  Even if BNSF was aware that Rogers planned to argue this theory, 
learning of Rogers's total number of claimed violations and methodology for calculating 
that figure during closing arguments would have left BNSF with no effective opportunity 

to respond or cure the prejudice.  Furthermore, the Court notes that Rogers's counsel 
conceded that, by the time of trial, they had planned to advance a "per scan" theory for 
"a couple of years," but did not "ha[ve] a responsive answer" when the Court asked why 
there had been no appropriate Rule 26(a) disclosure (or amended disclosure).  

Id.

 
1255:13–17.  Consequently, there is no basis for a finding that Rogers's failure to 
disclose was either justified or harmless.                                
For these reasons, the Court denies Rogers's motion to amend the judgment and 
order a partial new trial relating to the number of BIPA violations.2     
2.   Prejudgment interest                                            
Rogers also moves to amend the judgment to include prejudgment interest.  
Even though the Court has ordered a new trial on damages, the Court addresses this 

point to guide the parties in preparation for that trial.  Under Illinois law, "[i]n actions at 
law, prejudgment interest is recoverable only under the Interest Act or if the parties' 
agreement provides for it."  Prignano v. Prignano, 

405 Ill. App. 3d 801, 821

, 

934 N.E.2d 89, 109

 (2010) (citing Tri-G, Inc. v. Burke, Bosselman & Weaver, 

222 Ill. 2d 218, 255

, 

856 N.E.2d 389, 410

 (2006)).  The Illinois Interest Act states:           
Creditors shall be allowed to receive at the rate of five (5) per centum per 
annum for all moneys after they become due on any bond, bill, promissory 
note, or other instrument of writing; on money lent or advanced for the use 
of another; on money due on the settlement of account from the day of 
liquidating accounts between the parties and ascertaining the balance; on 
money received to the use of another and retained without the owner's 
knowledge; and on money withheld by an unreasonable and vexatious    
delay of payment.                                                    

815 ILCS 205/2.                                                           
Rogers cites to two cases in which Illinois courts have awarded prejudgment 
interest on statutory damages and argues that the Court should do the same in this 
case.  Yet as BNSF points out, the courts in both of those cases affirmed the award of 
prejudgment interest because the defendants' actions in delaying payment were 
vexatious and unreasonable.  See Millers Mut. Ins. Ass'n. of Illinois v. House, 

286 Ill. App. 3d 378, 387

, 

675 N.E.2d 1037, 1044

 (1997) ("[The defendant]'s delay in paying 

2 To the extent that Rogers contends the Court should triple the damages because the 
undisputed evidence at trial shows that BNSF collected at least three scans, the Court's 
ruling on BNSF's Rule 37 motion precluded him from seeking damages on this basis. 
[the amounts] due [to the plaintiff] was vexatious and unreasonable.") (emphasis 
added); Boyd v. United Farm Mut. Reins. Co., 

231 Ill. App. 3d 992, 999

, 

596 N.E.2d 1344, 1349

 (1992) (jury did not err in finding that an insurance company's refusal to pay 
or negotiate with the plaintiffs was vexatious and unreasonable when the company "was 

adamant as to the amount [it owed to the plaintiff] and refused to arbitrate upon 
plaintiffs' request even though [the plaintiff's adjuster]'s adjustment suggested that 
losses were far greater than defendant was willing to acknowledge.").     
Rogers's counsel asserted at oral argument that BNSF's actions were vexatious 
and unreasonable based on the jury's finding that BNSF violated BIPA intentionally or 
recklessly.  The Interest Act, however, specifically refers to "money withheld by an 
unreasonable and vexatious delay of payment."  815 ILCS 205/2.  There is no indication 
in the record suggesting that BNSF unreasonably delayed in making payments owed to 
Rogers or any other class member.  To the extent that Rogers contends that BNSF's 
defense of this lawsuit is the relevant delay, "an honest dispute as to the existence of a 

legal obligation will not result in unreasonable and vexatious delays which would permit 
recovery of prejudgment interest."  Boyd, 

231 Ill. App. 3d at 1000

, 

596 N.E.2d at 1349

.  
Because there were genuine issues of material fact, and because this was the first BIPA 
case to go to trial, BNSF's disputes regarding its legal obligations were honest rather 
than vexatious or unreasonable.                                           
Consequently, the Court concludes that Rogers would not be entitled to 
prejudgment interest even had the Court upheld the damages award.         
                       Conclusion                                    
For the foregoing reasons, the Court grants BNSF's motion for a new trial in part.  
The jury's finding of liability and its determination regarding reckless/intentional violation 
of BIPA stands, but the Court vacates the award damages and orders a new trial limited 
to that issue.  The Court otherwise denies BNSF's motion for judgment as a matter of 
law or to amend or alter the judgment [dkt. no. 235] and also denies Rogers's motion to 
amend the judgment [dkt. no. 236].  The case is set for a telephonic status hearing on 
July 7, 2023 at 9:05 a.m. to set a trial date and discuss the possibility of settlement. 
The following call-in number will be used:  888-684-8852, access code 746-1053. 

                                          United States District Judg 
Date:  June 30, 2023 

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