In a significant shift in law, the Illinois Supreme Court recently held that all claims under the Biometric Information Privacy Act (BIPA) are subject to a five-year statute of limitations. This reverses prior case law that required certain BIPA claims to be asserted within one year of the alleged violations. This change in law substantially increases potential liability for employers and businesses operating in Illinois.
On February 2, 2023, in Tims v. Black Horse Carriers, Inc., the Illinois Supreme Court rejected the intermediate appellate court's ruling that a one-year statute of limitations applies to claims brought under some sections of BIPA, whereas a five-year statute of limitations applies to claims brought under other sections. The court held that the five-year period applies to all BIPA claims.
BIPA does not have its own statute of limitations. As a result, in Tims, the defendant Black Horse contended that the one-year statute of limitations set forth at 735 ILCS 5/13-201 was the proper limitations period because it applies to "[a]ctions for slander, libel or for publication of a matter violating the right to privacy." In contrast, the plaintiffs contended that the five-year catch-all statute of limitations set forth at 735 ILCS 5/13-205 applied. The appellate court, in a Solomonic ruling that left neither side happy, held that both limitations periods applied: the one-year limitations period applied to claims under those sections of BIPA that involved "publication" of biometric data (BIPA sections 15(c) and 15(d)), and the five-year limitations period applied to claims under the remaining sections of BIPA that did not involve publication (BIPA sections 15(a), 15(d) and 15(e)). Read Katten's full post.
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