On February 2, 2023, the Illinois Supreme Court reversed in part the decision of an Illinois Appellate Court and held that all claims brought pursuant to Section 15 of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS § 14/1, et seq., are subject to a five-year statute of limitations period. Tims v. Black Horse Carriers, Inc., No. 2023 IL 127801.

Background

As we previously reported, in 2019, the trial court considered the applicable statute of limitations period for claims brought under Section 15 of BIPA, as the statute itself does not include an explicit period.  The plaintiff argued that Illinois’ five-year catchall limitation period applied to all BIPA claims, while the defendant argued that Illinois’ one-year limitations period for invasion of privacy claims applied.  The plaintiff prevailed on the issue, with the trial court holding that all BIPA claims are subject to a five-year statute of limitations period.  

The statute of limitations question was then certified for appeal and addressed by an Illinois Appellate Court in 2021.  The Appellate Court reversed the trial court in part, holding that: (1) claims under section 15(c), which restricts private parties from selling, leasing, trading, or profiting from biometric data, and (d), which prohibits the disclosure and dissemination of biometric data absent specific prerequisites, were subject to a one-year statute of limitations period, while (2) claims under sections 15(a), (b), and (e) were subject to Illinois’ five-year catchall statute of limitations period. Section 15(a) governs retention schedules and destruction guidelines for biometric data, section 15(b) prohibits the collecting or obtaining of biometric data without written notice and release, and section 15(e) requires parties to take reasonable care in storing, transmitting, and protecting biometric data.

The Appellate Court’s decision was appealed to the Illinois Supreme Court which, in its February 2nd opinion, disagreed with the Appellate Court and held that claims asserted under sections 15(c) and 15(d) should also be subject to a five-year statute of limitations period, bringing all BIPA claims under the same limitations period.

The Court’s ruling was largely based on the principle that a limitations period should “reduce uncertainty,” and that the Appellate Court’s decision was not in accordance with this principle.  As the Court explained, “Two 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 Section 15.”  Id. at 6. The Court further stated that “statutes should be interpreted with the presumption that the legislature did not intend absurd, inconvenient, or unjust consequences when enacting the statute, [so] we will not apply two different statutes of limitations to the Act.”  Id.

Takeaways

The Illinois Supreme Court’s ruling provides a long-awaited answer to the statute of limitations question, as it is now confirmed that plaintiffs have five years to bring all claims under BIPA.  As a result, employers have lost a key initial defense to BIPA claims and must be vigilant in complying with BIPA going forward given the length of time employees have to bring claims.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Alexandra Oxyer Alexandra Oxyer

Alexandra “Alex” S. Oxyer is an associate in the Labor & Employment Law Department.

Alex concentrates her practice in complex employment litigation and employment law counseling, including advising clients on issues related to hiring and firing, workplace investigations, employment policies, and wage and…

Alexandra “Alex” S. Oxyer is an associate in the Labor & Employment Law Department.

Alex concentrates her practice in complex employment litigation and employment law counseling, including advising clients on issues related to hiring and firing, workplace investigations, employment policies, and wage and hour compliance. She regularly defends companies in all aspects of employment litigation, including claims of discrimination, harassment and retaliation, and breach of restrictive covenants (e.g., noncompetition and nonsolicitation). She has handled such cases before state and federal courts throughout the country, as well as before the U.S. Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Indiana Civil Rights Commission, the American Arbitration Association, and the Department of Labor.

Prior to joining Proskauer, Alex was a cum laude graduate from Indiana University Maurer School of Law. She previously practiced at a national management-side employment law firm, and in addition to her experience in private practice, Alex also worked as in-house counsel for a large public university. As in-house counsel, Alex investigated, managed, and resolved a wide range of disputes in the student affairs and employment areas, including single and multi-plaintiff discrimination, harassment, retaliation, and wage & hour issues.

Photo of Dakota D. Treece Dakota D. Treece

Dakota is an associate in the Labor and Employment Law Department and a member of the Employment Litigation & Arbitration Group. She regularly defends employers in single-plaintiff actions involving discrimination, harassment and retaliation claims under statutes such as Title VII and the Americans…

Dakota is an associate in the Labor and Employment Law Department and a member of the Employment Litigation & Arbitration Group. She regularly defends employers in single-plaintiff actions involving discrimination, harassment and retaliation claims under statutes such as Title VII and the Americans with Disabilities Act, as well as under various Illinois state laws. She has handled such cases before state and federal courts, the U.S. Equal Employment Opportunity Commission, the Illinois Department of Human Rights, and the Illinois Department of Labor. In addition, Dakota conducts employment-related investigations.

Dakota also provides day-to-day counseling to employers to heighten compliance and minimize the risk of litigation.  Her counseling focuses on issues related to hiring and firing, personnel policies and leave and accommodation requests. She also has experience drafting employee handbooks and company policies. Dakota is a frequent contributor to Proskauer’s Law and the Workplace blog.

While in law school, Dakota served as a law clerk at the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), where she worked on a variety of labor relations issues. She also was a member and published author in the DePaul Law Review.