March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Illinois Supreme Court Rules All BIPA Claims Are Subject to Five-Year Time Limit

In a victory for the plaintiffs’ bar, the Illinois Supreme Court has ruled that all claims under Illinois’s Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., are subject to a five-year statute of limitations. For years, litigants and courts have grappled with whether BIPA claims must be brought within one, two, or five years of an alleged BIPA violation. The Court’s long-awaited decision in Tims v. Black Horse Carriers, Inc., 2023 IL 127801 (Ill. Feb. 2, 2023), puts an end to that pervasive uncertainty.

BIPA imposes several duties on companies that collect, store, or use biometric data—e.g., fingerprints, facial geometry scans—from Illinois residents. Specifically, private entities in possession of biometric data must (1) develop a publicly available written policy that includes retention and destruction protocols for such data (§ 15(a)); (2) obtain individuals’ written consent prior to collecting biometric data (§ 15(b)); (3) refrain from profiting off an individual’s biometric data (§ 15(c)); (4) refrain from disclosing biometric data without the subject’s consent (§ 15(d)); and (5) store biometric data according to a reasonable standard of care (§ 15(e)). Prevailing BIPA plaintiffs may recover liquidated damages ranging from $1,000 to $5,000 for each violation (plus attorneys’ fees), and these provisions have incentivized plaintiffs’ lawyers to file thousands of BIPA lawsuits as class actions in state and federal courts.

The Illinois Supreme Court affirmed in part and reversed in part a 2021 decision from the Illinois Appellate Court for the First District, which had held that a one-year statute of limitations period applied to violations of sections 15(c) and 15(d) of BIPA because “publication or disclosure of biometric data is clearly an element” of those claims. 2021 IL App (1st) 200563, ¶ 32. The Illinois Appellate Court in Tims also found that a five-year statute of limitations period applies to sections 15(a), 15(b) and 15(e) because “no element of publication or dissemination” exists in those claims. Id. ¶ 31. Illinois maintains a one-year statute of limitations period for acts which relate to “publication of matter” that violates a privacy right. 735 ILCS 5/13-201. And for statutes that do not contain a statute of limitations, there is a “catchall” limitations period of five-years. 735 ILCS 5/13-205.

Notably, both parties agreed that the appellate court erred in applying two different limitations periods to BIPA and asked the Illinois Supreme Court to apply either the one-year or the five-year period to the entire statute.

The Illinois Supreme Court agreed with the appellate court that sections 15(c) and 15(d) plausibly involve publication, and could fall within the one-year limitations period. But, when considered in conjunction with the intent of the legislature, and the fact that BIPA does not contain any limitations period language, the Court opted for the five-year period for all sections of BIPA. The Illinois Supreme Court concluded that a longer limitations period would further the General Assembly’s policy concerns professed in BIPA’s 2008 legislative findings. These concerns include protecting the safety of the larger public, particularly in light of the fact that the general public is weary of the use of biometrics. But the Illinois Supreme Court said nothing about the flood of BIPA litigation in recent years, or how the longer limitations period would impact the trajectory of BIPA litigation going forward.

Trial courts have stayed numerous BIPA actions pending Tims. The immediate effect of Tims on those stays may hinge on another Illinois Supreme Court BIPA case that remains pending: Cothron v. White Castle System, Inc. The Cothron case presents the related question of when a BIPA violation “accrues” for statute of limitations purposes. Tims could result in plaintiffs asking courts to lift the stays, but many cases have been stayed pending the resolution of Tims and Cothron. At the very least, Tims’ plaintiff-friendly resolution likely ensures that BIPA class actions will continue to be filed in state and federal courts—targeting employers of every size and in every industry. 

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XIII, Number 34

About this Author

Kevin M. Cloutier, Labor and Employment Attorney, Sheppard Mullin Law Firm

Kevin Cloutier is a partner in the Labor and Employment Practice Group and co-chair of the firm's Non-Compete and Trade Secrets Team in the firm's Chicago office. He is also a member of the Firm's Diversity and Inclusion Committee.

Areas of Practice

Mr. Cloutier’s practice focuses on all areas of labor and employment law, with an emphasis on employment-related litigation and proactive counseling of management-side clients. He is an experienced trial lawyer with first-chair trial experience before state and federal trial...

David M. Poell Business Trial Attorney Sheppard Mullin Chicago, IL

David Poell is an associate in the Business Trial Practice Group in the firm’s Chicago office, particularly focusing on the areas of consumer privacy and class action litigation.

Areas of Practice

David represents companies in a variety of class actions, multi-district litigations and other complex commercial litigation matters in state and federal courts. He specializes in defending corporate clients in high-stakes litigation matters involving federal consumer-protection statutes, privacy torts, unfair business practices, false advertising claims and large...

Shawn D. Fabian Labor and Employment Attorney Sheppard Mullin Chicago, IL

Shawn Fabian is a partner in the Labor and Employment Practice Group in the firm's Chicago and New York offices.

Areas of Practice


Shawn represents management-side clients before federal and state courts across the country and before administrative agencies, including the DOL, EEOC, NLRB and various state and municipal human rights commissions and labor agencies. He also regularly represents clients in arbitrations and other avenues of alternative dispute resolution.

Shawn analyzes the enforceability of restrictive...

Mikela T. Sutrina, Labor and Employment Attorney, Sheppard Mullin Law Firm

Mikela Sutrina is an associate in the Labor and Employment Practice Group in the firm's Chicago office.

Areas of Practice

Ms. Sutrina focuses her practice on labor and employment matters. She has defended employers in numerous cases in state and federal court, as well as before federal, state, and local administrative agencies in matters of discrimination, retaliation, wrongful termination, whistle-blower actions, and harassment. Ms. Sutrina has represented employers in both single and multi-plaintiff matters, as well...


Umar Sattar is an associate in the Labor and Employment Practice Group in the firm's Chicago office. 

Areas of Practice

Umar has experience litigating before federal and state courts across the country.  He regularly defends against single-plaintiff and class action wage and hour, discrimination, harassment, retaliation and products liability claims.  He also regularly prosecutes and defends against antitrust, breach of restrictive covenant and misappropriation of trade secret claims.

Umar conducts internal investigations and audits on behalf of...