Today, the Illinois Supreme Court issued its much-anticipated decision in Tims v. Black Horse Carriers, which determined whether the one-year or five-year statute of limitation applies to claims filed under the Illinois Biometric Privacy Act. In the landmark decision (found here), the Court veered from the Illinois Appellate Court’s splicing of limitations and claims and decided that the “catch-all” five-year statute of limitation applies to all BIPA claims.
The Tims lawsuit has been pending since March 2019. It is premised on the defendant’s failure to institute a retention schedule available to the public, in violation of Section 15(a) of BIPA, and for obtaining their employees’ biometric data and disclosing it to third parties without first obtaining their written, informed consent, in violation of Sections 15(d) and (b), respectively.
Following the denial of the defendant’s motion to dismiss as untimely, the trial court allowed the defendant to take an interlocutory appeal to settle the issue of which statute of limitation applies to BIPA since the law is silent on the subject. Before the Illinois Appellate Court, the defendant argued that the one-year limitations period for privacy actions outlined in 735 ILCS 5/13-201 should apply. On the other hand, plaintiffs argued that the five-year “catch-all” limitations period contained in 735 ILCS 5/13-205 is more appropriate for actions under BIPA because the legislature did not intend to create a specific or shorter limitation for claims under the statute.
In September 2021, the Illinois Appellate Court complicated matters, agreeing with both parties in part, and decided that the one-year and five-year limitations periods applied to different sections of the Act. See, generally, 2021 IL App (1st) 200563. Specifically, the Appellate Court held that the one-year period under § 13-201 applies to Section 15(c) and 15(d) BIPA claims because those sections involve the “publication” of biometric data, which is a term explicitly used in § 13-201. Conversely, since the Appellate Court found that Sections 15(a), (b), and (e) of BIPA does not involve the publication of an individual’s biometric data, it applied the five-year limitations period from § 13-205 to those sections.
Illinois Supreme Court’s Decision
Having stated at oral argument by Justice Michael Burke that the Illinois Appellate Court’s holding seemed “unworkable,” the Court’s decision to have all BIPA claims fall under a single statute of limitation is no surprise.
For its analysis, the Court started by highlighting that the purpose of a limitations period is “to reduce uncertainty and create finality in the administration of justice” and that “[t]he appellate court’s decision to invoke two different statutes of limitations to different [sections of BIPA] does not align with this purpose.” See, 2023 IL 127801, ¶ 20. In as much, the Court recognized that “[t]wo limitations periods could confuse future litigants about when claims are time-barred, particularly when the same facts could support causes of action under more than one subsection of [BIPA].” Id. Therefore, “applying two different limitations periods or time-bar standards to different subsections of [BIPA] would create an unclear, inconvenient, inconsistent, and potentially unworkable regime as it pertains to the administration of justice for claims under the Act.” Id., ¶ 21.
In arriving at its decision to apply the five-year statute of limitation to all claims under BIPA, the Court first pointed to the statutory construction of the law. There, the Court recognized that the plain language of BIPA is designed to regulate the collection, retention, disclosure, and destruction of biometric identifiers and biometric information. Id., ¶ 29. Therefore, since Sections 15(a), (b), and (e) contain no words that are construed as meaning publication, there was no support that such claims could fall under the limited one-year statute of limitations under § 13-201, thereby agreeing with the Appellate Court’s decision for those claims. Id., ¶ 30. And while the Court recognized that the one-year statute of limitation could be applied to Sections 15(c) and (d), given its publication-esque buzzwords, it referred back to legislative intent and purpose and its unwillingness to split claims like the Appellate Court, holding that “it would be best to apply the five-year catchall limitations period” for BIPA. Id., ¶ 32.
To close out its decision, the Court further pointed to the plain language of § 13-205, which states that “all civil actions not otherwise provided for, shall be commenced within 5 years after the cause of action accrued.” Id., ¶ 34, citing 735 ILCS 5/13-205 (West 2018). The Court further noted, “Illinois courts have routinely applied this five-year catchall limitations period to other statutes lacking a specific limitations period.” Id., ¶ 34. Therefore, the Court reasoned that “because the Act does not have its own limitations period; because subsections are causes of action ‘not otherwise provided for’ [citing the language of § 13-205]; and because we must ensure certainty, predictability, and uniformity as to when the limitations period expires in each subsection,” the five-year statute of limitation under § 13-205 is the appropriate limitation. Id., ¶ 37 (citations omitted).
Today’s decision paints a bleak picture for businesses defending against BIPA lawsuits. In the days and weeks to come, it is expected that many plaintiffs will seek to lift stays and push businesses to litigate or settle their cases. And while today’s decision brings finality to the statute of limitation issue, BIPA largely remains undeveloped. For example, the issue of claim accrual is still pending before the Illinois Supreme Court in Cothron v. White Castle, and a decision is expected later this quarter. Moreover, given the undeveloped nature of the statute, there is no doubt that another issue will arise that needs resolving by the Illinois Supreme Court, which could lead to another round of stays as cases progress.