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Illinois high court rules against company in BIPA case


In a victory for plaintiffs, the Illinois Supreme Court unanimously ruled Thursday that claims under the Illinois Biometric Information Privacy Act are governed by a five-year, rather than a one-year, statute of limitations.

Defense attorneys say, however, the ruling is likely to have little practical impact, in that case settlements have generally already assumed a five-year statute of limitations.

The state supreme court, meanwhile, is yet to rule on another crucial case over BIPA.

BIPA requires businesses that store biometric information to inform the subject in writing that the data is being collected or stored and the purpose and duration for which it is being collected. It also requires that businesses receive the subject’s written consent.

The law has led to numerous lawsuits filed against companies under BIPA, both in Illinois and elsewhere around the country.  Illinois remains the only state that permits a private right of action in biometric cases. The law enables plaintiffs to be awarded $1,000 for each negligent violation, or $5,000 for each intentional or reckless violation.

In the case in which the state high court ruled, Tims vs. Black Horse Carriers Inc., a state appeals court had held in a September 2021 ruling that a one-year limitation period applies to privacy claims and a five-year period applies to other civil actions under BIPA. 

In its ruling, four state high court judges said the five-year limitations period applies overall because the act does not contain a limitations period.

“Illinois courts have routinely applied this five-year catchall limitations period to other statutes lacking a specific limitations period,” the ruling said, citing other cases that have issued similar rulings.

“Applying the same reasoning in the aforementioned cases to the case on review, we find that, because the Act does not have its own limitations period; because the subsections are cause of action ‘not otherwise provided for’; and because we must ensure certainty, predictability, and uniformity as to when the limitations period expires in each subsection, the Act is subject to the default found” in Illinois’ Code of Civil Procedure.

The ruling said also the General Assembly’s policy concerns are accomplished by applying a longer limitations period.

The plaintiff attorney in the Black Horse case, James B. Zouras, of Stephan Zouras LLP in Chicago, issued a statement that said in part, “Today’s decision allows countless victims of biometric privacy abuse to have their day in court.”

He said, “With this ruling, we now look forward to presenting these claims at trial to a jury.” 

Black Horse’s attorney did not respond to a request for comment.    

Commenting on the ruling, Danielle M. Kays, senior counsel with Seyfarth Shaw LLP in Chicago said, “There’s not a lot of practical impact, but just confirmation of the statute of limitations.”

Jason M. Rosenthal, a principal with Much Shelist PC in Chicago, agreed. “I don’t think it will have material impact on” the current landscape of cases based on settlements that have been made in these cases, which have assumed a five-year statute of limitations.

Mr. Rosenthal said while the ruling did not go in companies’ favor, there might be a silver lining to the case, in that in recent years insurers have tightened the BIPA-related exclusions in their commercial general liability policies, but setting a five-year statute of limitations “increases the likelihood they may have CGL policies that have more favorable language.”

Companies are still awaiting an anticipated ruling by the Illinois Supreme Court in Latrina Cothron v. White Castle System Inc., on whether BIPA violations accrue each time an illegal biometric scan is performed.

Both attorneys said the latest ruling does not provide clues as to how the court is likely to rule in the Cothran case. Depending on how the court rules, that decision could increase by multiples the damages companies may face, and even result in potential bankruptcies, Mr. Rosenthal said.