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Rogers v. BNSF Railway Co.

United States District Court, N.D. Illinois, Eastern Division

October 31, 2019

RICHARD ROGERS, individually and on behalf of similarly situated individuals, Plaintiff,



         Richard Rogers has sued BNSF Railway Company on behalf of a putative class for violations of the Illinois Biometric Information Privacy Act (BIPA). In his amended complaint, Rogers alleges that he is a truck driver who at times visits BNSF railyards to pick up and drop off loads. At some BNSF facilities, Rogers alleges, he is required to scan a biometric identifier-such as a fingerprint or hand scan-into identity verification devices, including BNSF's RailPASS mobile application and kiosks. According to Rogers, BNSF collects and stores this information and has done so without providing him and others similarly situated with written disclosures regarding the purpose and duration of its use of the information; without making available its retention or destruction policies; and without obtaining informed written consent from him and others similarly situated-all of which, he alleges, the BIPA requires.

         The BIPA requires a private entity that possesses biometric identifiers or information to develop and make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying the information when the initial purpose for collecting it has been satisfied or within three years of a person's last interaction with the entity, whichever is sooner. 740 ILCS 14/15(a). In addition, the BIPA prohibits a private entity from collecting or obtaining a person's biometric identifier or information unless it first informs the person or her legally authorized representative in writing that the information is being collected or stored, as well as the purpose and length of term of the collection, storage, and use, and receives a written release executed by the person or her legally authorized representative. Id. § 15(b)(1)-(3). The statute also restricts disclosure and dissemination of biometric information and regulates its storage. Id. § 15(c)-(e). The BIPA provides a right of action to a person aggrieved by a violation of the statute and permits a prevailing party to recover actual damages or liquidated damages of $1, 000 for a negligent violation or $5, 000 for an intention or reckless violation. Id. § 20.

         BNSF has moved to dismiss Rogers's amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. It contends that Rogers's BIPA claim is preempted by one or more of three federal statutes and that Rogers has failed to adequately allege a negligent or reckless violation of the BIPA.

         In considering a motion to dismiss under Rule 12(b)(6), the Court takes the complaint's factual allegations as true and draws reasonable inferences in the plaintiff's favor. See, e.g., United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016). Dismissal is appropriate only if the complaint does not allege enough facts to state a claim for relief that is plausible on its face. See, e.g., O'Boyle v. Real Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).

         The Court notes that preemption is an affirmative defense. Dismissal under Rule 12(b)(6) based on an affirmative defense is proper only if it is clear from the complaint and matters of which the court may take judicial notice that the claims are barred as a matter of law, see, e.g., Parungao v. Cmty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017), that is, only if the complaint "admits all the ingredients of an impenetrable defense." Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).

         1. Preemption

         A state statute must give way if it conflicts with or frustrates federal law. U.S. Const., art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993); Union Pac. R. Co. v. Chi. Transit Auth., 647 F.3d 675, 678 (7th Cir. 2011). But "[i]n the interest of avoiding unintended encroachment on the authority of the States . . ., a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre-emption will not lie unless it is the clear and manifest purpose of Congress." Easterwood, 507 U.S. at 663-64 (internal quotation marks omitted). A court considers the text and structure of the federal statute to find evidence of preemptive purpose. Id. at 664. "If the statute contains an express preemption clause, the task of statutory construction must in the first instance focus on the plaining wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent." Id.; see also Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013).

         BNSF argues that three federal statutes preempt Rogers's BIPA claim: the Federal Railroad Safety Act (FRSA), the Interstate Commerce Commission Termination Act (ICCTA), and the Federal Aviation Administration Authorization Act (FAAAA). The Court will address each, starting with the ICCTA.

         a. ICCTA

         In the ICCTA, Congress "expressly conferred on the [Surface Transportation] Board exclusive jurisdiction over the regulation of railroad transportation." Chi. Transit Auth., 647 F.3d at 678 (internal quotation marks omitted). The operative provision of the statute reads as follows:

         The jurisdiction of the Board over-

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carries; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or ...

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