Earlier today, the Illinois Supreme Court issued a decision in Tims v. Black Horse Carriers, Inc., 2023 IL 127801, in which the court held that a five-year statute of limitations applies to all claims arising under the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA). There are five primary sections under BIPA. Section 15(a) pertains to the establishment and maintenance of and adherence to a retention schedule and guidelines for destroying collected biometric information. Section 15(b) pertains to notice and written consent before collecting or storing biometric information. Section 15(c) pertains to selling or otherwise profiting from collected biometric information. Section 15(d) pertains to the disclosure or dissemination of biometric information without consent. Section 15(e) pertains to the proper storage and transmittal of collected biometric information.
In Tims, the plaintiff filed a class action lawsuit against his former employer, Black Horse, alleging that it violated BIPA in relation to its practices regarding the collection and use of the plaintiff’s fingerprint. Specifically, the plaintiff alleged that Black Horse (1) failed to institute, maintain and adhere to a publicly available biometric information retention and destruction policy under section 15(a); (2) failed to provide notice and to obtain his consent when collecting his biometrics under section 15(b); and (3) disclosed or otherwise disseminated his biometric information to third parties without consent under section 15(d).
Because the BIPA itself does not contain a statute of limitations, trial courts have been analyzing whether BIPA is governed by the one-year statute of limitations under 735 ILCS 5/13-201 (providing “actions for slander, libel, or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued”) or the five-year statute of limitations under 735 ILCS 5/13-205 (providing “actions on unwritten contracts, express or implied … and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued”).
In Tims, the First District Appellate Court previously held that a one-year statute of limitations applies to claims under sections 15(c) and 15(d) of BIPA, but that the five-year statute of limitations applies to claims under sections 15(a), 15(b) and 15(e). In so doing, the court reasoned that the one-year statute of limitations codified in 735 ILCS 5/13-201 applies to section 15(c) and 15(d) claims because publication was an element of such claims, but the five-year statute of limitations under 735 ILCS 5/13-205 applies to sections 15(a), 15(b) and 15(e) because publication was not an element of such claims.
In reversing and remanding, the Illinois Supreme Court explained that it must consider more than the plain language of the statute and, instead, look to “purposes to be achieved” and to furthering the “goal of ensuring certainty and predictability in the administration of the limitations periods that apply to causes of actions under the Act.” Determining that only one statute of limitations should apply to BIPA and that the subsections under BIPA are “not otherwise provided for,” the court determined that “the Act is subject to the default five-year limitations period found in section 13-205 of the Code.”
Now, it remains to be determined when the five-year statute of limitations accrues. That issue is pending before the Illinois Supreme Court in Cothron v. White Castle System, Inc., No. 128004, which was argued in May 2022.