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Where do BIPA claims stand after the Illinois Supreme Court’s decision on the law’s statute of limitations?

Dremain Moore Elizabeth Casale James Shreve David Duffy February 13, 2023

In a February 2, 2023 decision, the Illinois Supreme Court announced that the five-year statute of limitations set out in Section 13-205 applies to claims brought under the Illinois Biometric Information Privacy Act (“BIPA”) because the Act itself does not have a specific limitations period. 

This decision settles ambiguity as to which limitations period applies. The majority of trial courts held that the five-year “catch-all” period prescribed under 13-205 for statutes which do not specify a limitations period should apply. However, colorable arguments for alternative limitations periods have been made since BIPA litigation proliferated. Defendants have argued that either the one-year limitations period pertaining to privacy claims under Section 13-201 or the two-year limitations period pertaining to personal injuries under Section 13-202 should apply.

Plaintiff Jorome Tims filed a class action suit alleging that his former employer violated various provisions of BIPA by requiring employees to scan their fingerprints into a biometric-scanning enabled timeclock system. Defendant Black Horse moved to dismiss the complaint as time-barred, pushing the alternative limitations periods raised by other defendants in similar BIPA claims. The trial court denied that motion, holding that a five-year statute of limitations applied. Black Horse appealed. The First District Appellate Court’s previous decision in Tims found that the one-year limitations period applied to violations of BIPA sections 15(c) and 15(d) while the five-year period applied to violations of sections 15(a), 15(b), and 15(e). The Illinois Supreme Court adopted the five-year limitations period recognizing that a single limitation period would “reduce uncertainty and create finality and predictability in the administration of justice.” The Court indicated that, while certain BIPA provisions could fall under the one-year privacy period, the judiciary’s role is also to interpret the legislative intent behind enacting BIPA while providing clarity on the limitations period.

This decision will have immediate short-term consequences. Multiple cases, previously stayed pending the outcome of the Court’s decision in Tims (including another appeal pending in the Third District (Marion v. Ring Container Techs., LLC, App. No. 3-20-0184)), will resume, spurring additional activity in the BIPA space.

Thompson Coburn attorneys are closely monitoring these developments. For information on the employer impact of the decision, see this related article from our Labor & Employment practice: Illinois Supreme Court holds that a five-year statute of limitations will apply to all BIPA Claims.

Dremain Moore, Libby Casale, Jim Shreve, and David Duffy are attorneys in Thompson Coburn’s Business Litigation practice.