Update – Illinois Supreme Court to decide whether claims under the Illinois Biometric Information Privacy Act governed by 1-or-5 year limitations
The Illinois Supreme Court recently granted leave to appeal in a case that will finally decide the hotly disputed question of what statute of limitations period applies to claims under the Illinois Biometric Information Privacy Act (BIPA).
In the case of Tims v. Black Horse Motor Carriers, Inc. – which we previously wrote about in September 2021 – the Illinois Supreme Court granted the defendant’s petition for leave to appeal after the First District found that, depending on the type of alleged violation at issue, an either one or five year limitations period applies to claims under BIPA. In Tims, the plaintiff filed his class action complaint in March 2019, asserting various claims under BIPA section 15. According to the complaint, the plaintiff worked for the defendant from June 2017 until January 2018, and during that period the defendant scanned the fingerprints of all employees, including the plaintiff, for timekeeping purposes. The defendant moved to dismiss on statute of limitations grounds, arguing that because BIPA’s text does not contain its own limitations period, the one year period for privacy actions under Illinois code section 13-201 applied because BIPA’s purpose is privacy protection. In response, the plaintiff argued that the five year catch-all limitations period under Illinois code section 13-205 for all civil actions not otherwise provided for applied. The circuit court agreed with the plaintiff and denied the motion to dismiss.
On interlocutory appeal, the First District agreed in part with both parties. It held that the five year catch-all statute of limitations applies to BIPA sections 15(a), 15(b) and 15(e), which require private entities to develop and adhere to a publicly available written policy and data retention schedule and obtain consent to collect biometric data from an individual before doing so. However, the First District also held that the one year limitations period for privacy claims involving publication applies to BIPA sections 15(c) and 15(d), which prohibit private entities in possession of biometric data from selling, trading, or disclosing biometric data to third parties without first obtaining consent from the affected individuals to do so. The distinction, according to the court, turned on whether the BIPA provision at issue contemplated publication, which is required for application of the shorter limitation period under section 13-201. The court held that BIPA sections 15(c) and (d) involve disclosure of biometrics and thus are governed the one year limitation, whereas sections 15(a), (b), and (e) do not and thus are governed by the five year limitations period.
The defendant’s petition for leave to appeal was granted on January 26, 2022. The Illinois Supreme Court’s consideration of the defendant’s appeal will hopefully resolve the question of which statute of limitations applies to BIPA claims, and the court’s ruling will have a substantial impact on Illinois employers and businesses.
