Illinois Court Splits Time on BIPA Statute of Limitations

An Illinois state appellate court recently issued a ruling that could reduce defendants’ litigation exposure on certain types of Biometric Information Privacy Act (“BIPA”) claims.  On September 17, the panel clarified in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), that the statutes of limitation applicable to BIPA claims vary depending on the nature of the claim.  Claims for failing to provide a written retention policy, give notice, or obtain consent prior to collecting an individual’s biometric information may be brought within five years.  But claims for violating BIPA’s selling, disclosing, or disseminating information provisions must be brought within one year.

At issue was whether Illinois’ one-year limitation period for “[a]ctions for slander, libel or for publication of matter violating the right of privacy,” or whether the more generous five-year limitation period reserved for “all other civil actions,” applied to claims brought under BIPA.

The court determined that the one-year limitation period applied to privacy actions that contained a “publication” element.  As applied to BIPA, this one-year limitations period would cover claims under Section 15(c), which forbids a private party to “sell, lease, trade, or otherwise profit from” biometric data, and Section 15(d), which generally prohibits disclosing or otherwise disseminating biometric data absent specified prerequisites, such as consent or a court order.  In contrast, the court concluded that violations of Section 15(a)’s retention policy, Section 15(b)’s informed consent, and Section 15(e)’s data safeguarding requirements “have absolutely no element of publication or dissemination,” so plaintiffs have five years to bring such claims.  The court noted that applying different limitation periods to different BIPA claims was reasonable because “each duty is separate and distinct,” such that a company could violate one duty while complying with others.

Covington has previously discussed other developments in BIPA litigation, which has proliferated in recent years.

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