October 25, 2021

Volume XI, Number 298

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October 25, 2021

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Illinois Appellate Court Addresses Statute of Limitations Period for BIPA Claims

On September 17, 2021, an Illinois Appellate Court addressed the appropriate statute of limitations period for claims brought pursuant to the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”), 740 ILCS § 14/1, et seq., holding that (1) claims asserted under sections 15(c) and (d) of the Act are subject to a one-year statute of limitations period, while (2) claims brought under sections 15(a), (b), and (e) are subject to a five-year statute of limitations period.  Tims v. Black Horse Carriers, Inc., No. 1-20-0563.

Background

In September 2019, the trial court in Tims considered the applicable statute of limitations period for BIPA claims.  Since BIPA does not contain an express statute of limitations period, the plaintiff argued that Illinois’ five-year catchall limitation period applied.  The defendant, however, argued that Illinois’ one-year limitations period for invasion of privacy claims applied. The trial court sided with the Plaintiff, and held that BIPA claims are subject to a five-year statute of limitations period.  The court then certified the statute of limitations question for appeal.

Appellate Court Decision

In answering the lower court’s certified question, the three-judge state appellate panel held that because Illinois’ one-year statute of limitations applies to “publication of matter violating the right of privacy,” that limitations period only applies to BIPA claims brought under section 15(c), which restricts private parties from selling, leasing, trading, or profiting from biometric data, and section 15(d), which prohibits the disclosure and dissemination of biometric data absent specific prerequisites.  Under these sections, according to the panel, publication or disclosure of biometric data is “clearly an element of an action.”  Tims, at 9.

However, the panel held that Illinois’ five-year catchall statute of limitations period applies to sections 15(a), (b), and (e) of BIPA because those sections “have absolutely no element of publication or dissemination.”  Id.  Section 15(a) governs retention schedules and destruction guidelines for biometric data, section 15(b) prohibits the collecting or obtaining of biometric data without written notice and release, and section 15(e) requires parties to take reasonable care in storing, transmitting, and protecting biometric data.  740 ILCS §§ 14/15(a), (b), (e).

The panel found that the language in Illinois’ one-year statute of limitations could not apply to sections 15(a), (b), or (e) because a plaintiff could bring an action under those sections without having to allege or prove that the defendant published or disclosed any biometric data to any person or entity beyond itself.  As the panel put it, an action under those sections is “not an action for publication of matter violating the right of privacy.”  Tims, at 9.

Conclusion

The Tims decision is a significant development in BIPA-related litigation, as plaintiffs now have five years to bring certain claims under the statute. We will continue to monitor developments relating to this decision.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 263
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About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
Edward C. Young, Proskauer Rose, Harassment Lawyer, Labor Rights Attorney
Associate

Edward C. Young is an associate in the Labor & Employment Law Department. He represents companies nationwide in a broad range of employment issues, including discrimination, retaliation and harassment claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Family Medical Leave Act, as well as other federal and state employment statutes and various common law torts. In addition, Eddie represents employers in trade secret matters and challenges to the independent contractor status of workers.

...

312-962-3595
Dakota D. Treece Labor Lawyer Proskauer Rose :aw Firm
Associate

Dakota Treece is an associate in the Labor Department and a member of the Employment Litigation and Arbitration Group. She completed her law degree at the DePaul University College of Law. 

+1.312.962.3506
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