The Illinois Appellate Court Issues Key Ruling On Statute Of Limitations In BIPA Class Actions

• Published date: 21 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Class Actions, Libel & Defamation
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Gerald Maatman Jr., Thomas E. Ahlering, Alex W. Karasik and Sarah K. Bauman

Seyfarth Synopsis: On September 17, 2021, the Illinois Appellate Court issued its highly-anticipated decision in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), on whether a one-year or five-year statute of limitations period applies to claims under the Biometric Information Privacy Act, 740 ILCS 14/15 ("the BIPA") The Illinois Appellate Court's holding was two-fold ' a one-year limitations period governs actions brought under sections 15(c) and (d) of the BIPA, while claims under sections 15(a), (b), and (e) are subject to the catch-all five-year limitations period.

The ruling in Tims is sure to be appealed to the Illinois Supreme Court. That being said, it has the potential to be a game-changer for BIPA class action litigation, and likely the plaintiffs' bar will aggressively push for the five-year statute of limitations when pursing class-wide relief.

Case Background

In March 2019, Plaintiff ("Plaintiff") filed a class action complaint claiming that Black Horse Carriers, Inc.'s ("Defendant") timekeeping practices, which involved the scanning and storing of employees' fingerprints, violated the BIPA. Id. at ' 5. The first count of the complaint asserted that Defendant violated section 15(a) of the BIPA in failing to institute, maintain, and adhere to a retention schedule for biometric data. Id. at ' 7. The second and third counts alleged that Defendant violated sections 15(b) and (d), respectively, by obtaining their employees' biometric data and disclosing it to third-parties without first obtaining their written, informed consent. Id. Although Plaintiff did not allege claims under sections 15(c) or (e), those provisions prohibit the sale of a person's biometric data for a profit (740 ILCS 14/15(c)), and impose a duty of reasonable care in storing and protecting biometric data from disclosure (id. at 14/15(e)).

In June 2019, Defendant filed a motion to dismiss on the ground that Plaintiff filed the complaint outside of the applicable statute of limitations period. Id. at ' 8. Defendant argued that the one-year limitations period prescribed by 735 ILCS 5/13-201 applied to Plaintiff's claims because the BIPA's main concern is privacy protection. Plaintiff countered that the five-year catch-all limitations period prescribed by 735 ILCS 5/13-205 covered Plaintiff's claims, in that a "publication element" was required for a claim to be covered by section 13-205 ' an element which, according to Plaintiff, the BIPA...