Michael Kanovitz

When BNSF Railway selected Remprex to implement a biometric system at the gates of its Illinois intermodal yards, Remprex was a newly formed company with two employees. BNSF had a legal department. Between April 2014 and January 2020, tens of thousands of truck drivers were registered in the system. At a driver’s first visit, the right thumb, the left thumb, and the left index finger were scanned and stored in a database; on later visits the driver entered an identifying number at a kiosk and pressed a finger to its scanner to be let through. Registration included no written notice of why the prints were taken or how long they would be kept, and no written release, both of which Section 15(b) of Illinois’s Biometric Information Privacy Act, or BIPA, requires before a private company collects or otherwise obtains a person’s biometric identifiers. When one of the drivers, Richard Rogers, sued in 2019, BNSF’s defense was that Remprex, its contractor, had taken the fingerprints.

Michael Kanovitz, co-managing partner of Loevy & Loevy in Chicago, tried the drivers’ case in October 2022 with Jon Loevy and Gianna Gizzi of his firm, alongside the McGuire Law lawyers whom Judge Matthew F. Kennelly had appointed class counsel. “I (along with other Loevy & Loevy attorneys and co-counsel) tried the only BIPA class action to have gone to trial in any jurisdiction,” Kanovitz wrote in a sworn declaration in August 2025. The jury found that BNSF had recklessly or intentionally committed 45,600 violations of the Act, the number of registered drivers BNSF’s own expert had counted. BNSF later settled with the drivers for $75 million, and each class member’s share went out by mail without a claim form.

Kennelly had presided over an earlier class trial that Kanovitz led. In August 2009 a jury in his courtroom found for a class of men strip-searched on entering the Cook County Jail, and in 2010 the county agreed to pay $55.3 million to settle.

Section 15(b) at BNSF’s Gates

Section 15(b) places its notice-and-release duty on any private entity that collects, captures, purchases, receives through trade, or otherwise obtains a person’s biometric identifiers. Section 20 lets a prevailing plaintiff recover liquidated damages for each violation, in a higher amount for a violation that is intentional or reckless than for one that is negligent.

BNSF operates four intermodal facilities in Illinois, where trailers and containers are loaded from trucks onto trains and from trains onto trucks. Rogers drove for a third-party logistics company and routinely brought freight to those yards. He first visited one in 2003. His registration, fingerprint scan included, first appears in the gate system’s database on December 5, 2012, and he was still making the trips in November 2020.

Rogers filed his class action in the Circuit Court of Cook County on April 4, 2019, and BNSF removed it to federal court in Chicago, where it was assigned to Kennelly. In March 2022 Kennelly certified a class of every individual whose fingerprint information had been registered through BNSF’s Auto-Gate System, or AGS, at any of the four Illinois facilities between April 4, 2014 and January 25, 2020. The common question, he held—whether BNSF operated the system and collected biometric information in violation of the Act—would predominate over any individual issues. A Seventh Circuit panel summarily denied BNSF’s petition to appeal the certification. Loevy & Loevy was added to the plaintiffs’ team to take the class’s claims to trial, and the firm, Jon Loevy later swore, “tapped its two most experienced partners,” Loevy and Kanovitz, “to try the case.”

A Hires B to Collect Data

BNSF’s first defense was federal law. The railroad argued that the Interstate Commerce Commission Termination Act, the Federal Railroad Safety Act, and the Federal Aviation Administration Authorization Act, which governs motor carriers, displaced an Illinois privacy statute at rail facilities whose security federal regulations already addressed. Kennelly rejected that argument in October 2019. The Act regulated the handling of information and had nothing to do with regulating rail transportation, he held; its effect on motor carriers’ prices, routes, and services was “too tenuous, remote, or peripheral” to be preempted; and the one security regulation BNSF cited, a general physical-security rule, did not substantially subsume the Act’s subject. He denied summary judgment on preemption in March 2022 and, that June, refused to certify the question for an immediate appeal.

The second defense was Remprex. BNSF’s position was that Remprex operated and owned the gate system, that BNSF itself had no access to the biometric database, and that the railroad could not be held liable for the conduct of an independent contractor it had hired and bound by contract to follow the law. At summary judgment Kennelly found that evidence of BNSF employees’ involvement in registering drivers, and of BNSF’s control over Remprex, would allow a jury to find that BNSF had violated the Act itself. BNSF then moved before trial to exclude any evidence or argument that it could be liable for the acts of third parties. By that point it appeared undisputed, Kennelly wrote, that Remprex had obtained the drivers’ information without following Section 15(b)’s notice and consent requirements. The dispute was over BNSF’s responsibility for it.

Kanovitz’s firm briefed and argued the parties’ pretrial motions for the class, and Kennelly heard argument and ruled on many of them at a final pretrial conference on September 6, 2022. He decided BNSF’s first motion in limine in a written opinion on September 26, eight days before trial, and denied it. Illinois presumes that a statute leaves the common law in place unless the legislature clearly and plainly says otherwise, and he found nothing in the Act that displaced the ordinary rule that a principal answers for its agents. The Act’s definition of a private entity includes corporations, and a corporation “can only act through its officers, agents or servants.” The text of Section 15(b) also reached past collection: had the legislature meant to cover only the party that gathered the data, the clause would have stopped at the word “collect.” The phrase “otherwise obtain,” Kennelly wrote, was “broad enough to encompass the situation alleged in this case: A hires B to collect data that A has determined it needs.”

Calling the Shots at the Auto-Gate

Trial opened on October 4, 2022, and ran five days. Rogers attended all of it, and a second driver, Michael Stewart, testified before the jury. The jury heard from witnesses for both companies, and Rogers’s lawyers argued that BNSF had acted recklessly with respect to its vendor’s conduct.

Remy Diebes, Remprex’s chief executive, testified that BNSF had circulated a request for proposals for an automated gate system in or around 2006 and that “[b]iometrics was the requirement within the RFP.” BNSF contracted with a company called Nascent in November 2006 to install the system at one of its Illinois facilities; Nascent had no gate system that captured biometric information at the time, so it “went out and sourced it” to meet BNSF’s requirements. Remprex was founded in 2007 as an extension of Nascent. BNSF licensed the on-site software from Nascent and bought “the hardware, the kiosks, the intermodal gate arms, and the fingerprint scanners” from Remprex. Timothy Ash, one of Remprex’s two original employees, testified that BNSF owned the biometric data and kept it on servers BNSF owned, bought from Remprex, and housed in server rooms in its railyards. Diebes testified that Remprex was obligated by contract to provide the data on request and that he could not think of any circumstance in which BNSF would have wanted the data and not gotten it.

Ash described a working relationship in which Remprex coordinated and communicated with BNSF and sometimes took specific direction from it on daily operations. If a driver asked not to be fingerprinted, that was for BNSF to decide, and BNSF at times chose to turn the gate system off or skip the biometric check. BNSF had that authority, Ash testified, because it was “calling the shots.”

BNSF’s witnesses gave a different account. Mike Whitaker, a BNSF employee, testified that Remprex was “independently managing [the AGS] as the experts in their field.” Chuck Burris, also of BNSF, testified that BNSF “never operated or had any oversight of [the AGS] system.” The contract described Remprex as an independent contractor that would complete its services in “[its] own manner and methods” and required it to “keep abreast of current and new laws, rules, regulations, and ordinances that affect operations at the terminal.” BNSF’s lawyers told the jury that the vendor had collected the data and that the contract required the vendor to comply with laws such as BIPA.

Burris first answered no when asked whether BNSF had collected, captured, purchased, received through trade, or otherwise obtained the biometrics, then agreed that BNSF “owned the biometric data.” After Rogers sued in April 2019, he testified, BNSF learned from Remprex that there had been no consents in place at the facilities. BNSF “could have directed [Remprex] to turn off biometrics,” Burris said, and “[BNSF’s] position was Remprex was doing something illegal.” BNSF did not turn biometrics off until March 2020, which Burris attributed to concerns about “COVID-19 and the pending lawsuit.” Diebes testified that even after the lawsuit the fingerprinting of drivers without disclosures went on uninterrupted, and that BNSF did not begin seeking consent.

Kennelly instructed the jury that Remprex was BNSF’s agent if BNSF had the right to control Remprex’s actions in collecting, capturing, purchasing, receiving through trade, or otherwise obtaining biometric identifiers or biometric information.

Reckless or Intentional, 45,600 Times

On October 12, after deliberating for about an hour, the jury returned its verdict for the class, finding that BNSF had recklessly or intentionally committed 45,600 violations of the Act. BNSF’s expert had testified that about 45,600 individuals were registered during the class period; Rogers’s expert had put the number at 44,139. At a press conference afterward, Rogers said, “I’m really happy with the verdict today… all I ever wanted was justice for the over 45,000 truck drivers and myself.” The fingerprinting at the gates, he said, “was something that I never felt comfortable with.” Lena Kent, speaking for BNSF, said the railroad disagreed with the verdict and saw in it “a misunderstanding of key issues.”

After trial BNSF asked Kennelly to rule that the evidence could not support the verdict. Kanovitz, Loevy, and Gizzi, with the McGuire Law lawyers, answered for the class, and in June 2023 Kennelly rejected BNSF’s challenges to the sufficiency of the evidence. A jury that credited the testimony about BNSF’s ownership of the data and the servers, he held, could reasonably find that BNSF itself had “otherwise obtained” the biometric data and violated Section 15(b) directly. The evidence also supported a finding that Remprex acted as BNSF’s agent, collecting the information BNSF directed it to collect, with tools BNSF provided, in work that benefited BNSF. There was, he wrote, “far more than ‘a mere scintilla of evidence’ in the record that supports the jury’s verdict.”

On recklessness, BNSF argued that there was no evidence that either it or Remprex had been aware of the Act until April 2019. Recklessness, Kennelly wrote, means “something more than negligence but less than knowledge of the law’s requirements,” and he declined to hold that BNSF could not have acted recklessly because it did not know of a law that had been in effect for years when the first violations at issue occurred. Viewed in Rogers’s favor, the evidence showed 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.”

After Rogers sued, BNSF opened discussions with Remprex about the Act’s requirements and later sued Remprex, but it kept collecting fingerprints until March 2020. Kennelly acknowledged that BNSF was not required to stop the moment it learned of the lawsuit. The jury could still infer conscious disregard or utter indifference, he held, because “at that point BNSF knew that collecting biometric data may violate BIPA but chose to continue doing so for almost another year.” BNSF argued that any recklessness was confined to the months after April 2019. Kennelly found the argument unpersuasive, pointing to Rogers’s answer that the jury could reasonably have found BNSF’s benign explanation for the earlier years not credible “because once BNSF did learn, it took no steps to solve the problem.”

A $75 Million Fund, Paid by Check

The parties had mediated seven times with three neutrals: retired judge James Holderman in March 2020, retired judge James Epstein in April 2021 and June 2022, and Kennelly himself, who held a settlement conference days before trial and three more after the verdict. After the last of those, on September 8, 2023, BNSF and the drivers settled. The written agreement, filed on February 26, 2024, created a $75 million fund. It also resolved a companion case in the Circuit Court of Cook County, where Stewart had joined Rogers as a plaintiff, and it took in everyone whose fingerprint information had been registered at the four Illinois facilities from April 4, 2014 through March 5, 2024.

Kennelly granted preliminary approval on March 5, 2024, and direct notice went out on March 26. No class member objected, and six asked to be excluded. On June 18, 2024, Kennelly granted final approval, finding the settlement fair, reasonable, adequate, and in the best interests of the class members, and finding that it had been negotiated at arm’s length and reached only after multiple mediations and settlement conferences overseen by neutrals, including the court. His final judgment named Kanovitz and Jon Loevy, with the four McGuire Law lawyers, as class counsel.

For a class of about 46,500, the fund came to $1,612.90 per person before deductions, and the parties estimated the net payment at about $1,000 a driver. Each class member was entitled to an equal share of the net fund without filing a claim. The settlement administrator mailed checks to class members’ last known addresses, asked anyone who had moved since 2014 to confirm an address, and paid without automatic tax withholding to those who supplied tax information by December 13, 2024. A second round of checks, for class members who had cashed the first, was scheduled for mailing on February 26, 2025. BNSF stated, as part of the settlement, that it was no longer using the biometric system.

From a Corporate Firm to Contingency Cases

Kanovitz studied English at Brandeis University, graduating cum laude in 1990, and graduated cum laude from Cornell Law School in 1994. He was admitted to the bar in Kentucky that year and began his career at a corporate law firm, which he left to take cases on contingency. He was admitted in Illinois in 2001. He is a co-author of a constitutional-law treatise, published by LexisNexis, that is used to train law-enforcement officers across the country.

Young v. County of Cook: Group Strip Searches at the Jail’s Intake

In 2006 three people who had been held at the Cook County Jail, Kim Young, Ronald Johnson, and William Jones, sued Cook County and its sheriff over the searches the jail performed on new detainees at intake. Kanovitz entered his appearance for Young and Johnson and was the detainees’ lead lawyer. The case went to Kennelly, who in April 2007 certified two classes: every man strip-searched on admission on or after January 30, 2004, and every person charged with a misdemeanor or lesser offense, other than a drug or weapons charge, who had been searched the same way.

Strip searches at the jail’s receiving center were performed without regard to the seriousness of the charge against the person being searched. Kim Young was strip-searched at intake while she waited for $200 to be delivered for her bond. Women entering the jail ordinarily were not strip-searched at the receiving center, and when women were searched, guards used the squat-and-cough method throughout the class period. Men were searched with the bend-and-spread method until about February 2006 and with squat-and-cough after that.

Until privacy screens went up in the intake hallway in or around February 2007, men were searched in groups. William Jones, jailed in 2005 on a misdemeanor traffic charge, said he was searched with fifty other men, lined up shoulder to shoulder and made to bend over and spread their buttocks while a guard walked up and down the line. Jones later recalled: “They told us, ‘You have three seconds to put your underwear on.’” Johnson said he was searched in a hallway with 100 other men, so crowded that the naked men were touching.

Kanovitz put before the court sworn declarations from over 500 randomly selected men who had been searched during the class period. In nearly ninety percent of them, the declarants said the searches were so crowded that detainees made physical contact with one another, and over 400 said guards had used insults or abusive language, including insults about body odor, anatomy, sexual orientation, and race. Kanovitz described groups of as many as 100 men lined up body-to-body against a hallway wall.

Sheriff Tom Dart defended the searches as necessary for jail security. The defendants offered a chart of instances, 832 of them by their count, in which people charged with misdemeanors between early 2004 and late 2006 had been found during the search process to have contraband, money in the overwhelming majority of cases. The defendants’ own expert, Norman Carlson, knew of no other jail that had conducted group strip searches without privacy dividers in the previous twenty years. In February 2009 Kennelly granted summary judgment to the plaintiffs on two sets of claims. Strip-searching detainees held on misdemeanor or lesser charges not involving drugs or weapons, without individualized reasonable suspicion, violated the Fourth Amendment as a matter of law. The group searches of men before the screens went up were unreasonable on the undisputed facts: the men had been “herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.” Those searches also violated the Equal Protection Clause, Kennelly held, because the jail had searched men in a way it did not search women. When the defendants sought reconsideration on the strength of the contraband chart, Kennelly explained that he had examined whether misdemeanor detainees, as a category, posed a risk warranting the same search as a person held on a violent felony charge. “That is where defendants’ evidence fell short and still falls short.”

The remaining claims, over the manner of the searches from February 2007 through March 2009, were tried to a jury in August 2009 on liability. The trial ran nearly two weeks. Twenty men testified that guards had used derogatory language or made sex noises while they were bent over. On August 13 the jury found for the plaintiffs on each claim, including that the searches discriminated against men and were unreasonable. “They described just disgusting and cruel ways that these strip-searches were done,” Kanovitz said after the verdict.

Cook County’s $55.3 Million and Its Insurers

In November 2010 the Cook County Board voted 14–1 to settle for $55.3 million, and Kanovitz signed the agreement for the named plaintiffs. The county admitted no wrongdoing. “The jail’s administrators knew exactly what was going on, for years,” Kanovitz said. “And they allowed this to happen.” He said the searches were meant to put detainees “in their place.” The settlement, he said, “puts an end to the cruel and shameful hazing that the Sheriff’s Department allowed in that jail every night.”

The settlement classes took in men strip-searched as new detainees, and men and women held on misdemeanor or lesser charges not involving drugs or weapons who had been searched the same way, from January 30, 2004 through March 30, 2009: as many as 250,000 people, most of them men. By March 19, 2009, the last of the electronic scanners that replaced most strip searches of incoming detainees had gone online. Detainees could claim awards of about $500 to about $1,000; the agreement estimated $1,000 for men held on qualifying misdemeanor charges, $700 for other men, and $500 for women, subject to proportional reduction. By late December 2010 notices had gone out to more than 200,000 people. “The response has been fantastic,” Kanovitz said; in a single day, he said, the claims administrator had received “something like 40 thousand pieces of mail.” Kennelly approved the class settlement in March 2011.

Some of the county’s insurers had refused to pay, Kanovitz said in December 2010, and he was suing them. The settlement also assigned to the class the county’s claims and rights to payment under several of its insurance policies. In 2012, contending that the county’s insurers had defrauded it to avoid paying $20 million in coverage owed for the settlement, the plaintiffs sued the insurers in state court under the Illinois False Claims Act and on common-law claims including breach of contract, fraud, and tortious interference. The Illinois Attorney General declined to intervene. The insurers filed six separate motions to dismiss and, when discovery closed, four motions for summary judgment. The case was tried over four days in March 2016, and in May 2017 the insurers agreed to pay $52 million, $32.5 million of it to the Young class. Class counsel told Kennelly they had turned down a $20 million offer along the way. In a September 2017 opinion, Kennelly wrote that plaintiffs’ counsel had “effectively built the case from scratch” and that, although Loevy & Loevy believed the class would be better served by going to trial, the firm had “risked walking away with nothing after having invested four years in this litigation.” On the quality of the firm’s work, he wrote, “the result speaks for itself.”

Simmons v. Motorola Solutions: FaceSearch and Booking Photos

In February 2020, Johnny Flores, Ariel Gomez, and Derrick Lewis sued Motorola Solutions and Vigilant Solutions in federal court in Chicago; Irene Simmons and Rodell Sanders later took their places as the named plaintiffs. The plaintiffs alleged that the companies’ FaceSearch product applied facial recognition to a gallery of booking photographs the companies had assembled and made available to law-enforcement customers, and that the companies had collected the biometric data of the people in those images without complying with the Act’s written-notice and release provisions. The companies raised the Act’s Section 25(e) exemption for government contractors, the First Amendment, the dormant Commerce Clause, and the Supremacy Clause. The plaintiffs’ lawyers reviewed more than 50,000 pages of documents, analyzed the companies’ databases, and deposed a corporate representative and two individual witnesses.

Kanovitz, Jon Loevy, and Thomas M. Hanson of Loevy & Loevy represented the plaintiffs, and Kanovitz litigated the case with his colleagues for over five years. With the companies’ fully briefed motion for summary judgment awaiting a decision from Judge John J. Tharp Jr., the parties jointly asked Tharp to hold his ruling, and he did. The preparation for mediation, Kanovitz wrote, included “intensive evaluation of class size, damages, and insurance.” On March 11, 2024, with authorized representatives and insurance carriers present, the parties mediated before Sidney I. Schenkier, a retired judge working with JAMS, in a session that, Kanovitz later wrote, “lasted almost twelve hours and long into the night”; they met with Schenkier again that October. The plaintiffs filed a state-court action in Cook County to resolve all claims, and the parties settled for $47.5 million in cash, with no reversion to the defendants, divided equally among class members with approved claims.

The companies’ records held names and dates of birth for most of the people in the booking-photo gallery. The settlement administrator mailed more than 158,000 notice postcards, nearly 117,000 of which were delivered, and ran digital notices besides. No class member asked to be excluded, and none filed an objection.

In a declaration signed on August 12, 2025, supporting final approval, Kanovitz set out his reasons for recommending the settlement. The defendants’ motion for summary judgment was pending, and no class had yet been certified. Even if the plaintiffs defeated the motion, won certification, and won a judgment at trial, he wrote, “Defendants would have likely appealed, and with a not insubstantial risk of prevailing on their legal defenses. Thus, recovery for the Settlement Class via continued litigation, if any, would be years away if the case was not settled.” The Circuit Court of Cook County granted final approval on September 15, 2025, and payments, estimated at about $200 to $550 for each valid claim, were scheduled to go out on February 6, 2026.