2021 IL App (1st) 200563
Ill. App. Ct.2021Background:
- Plaintiffs (Tims and Watson) sued Black Horse Carriers under the Illinois Biometric Information Privacy Act (BIPA), alleging the employer scanned and used employee fingerprints for timekeeping and violated various section 15 duties (notice/consent, retention/destruction policy, disclosure, and data security).
- Complaint sought declaratory and injunctive relief, statutory damages per-violation, and fees; BIPA itself contains no statute-of-limitations provision.
- Defendant moved to dismiss under section 2-619 arguing BIPA claims are privacy claims governed by the one-year limitations period in 735 ILCS 5/13-201; plaintiffs argued the five-year catchall (735 ILCS 5/13-205) governs because many BIPA claims lack a publication element.
- The trial court denied dismissal, applied the five-year period, and certified the question to the appellate court under Supreme Court Rule 308; this court accepted interlocutory review.
- The appellate court held that the one-year statute (section 13-201) applies to BIPA claims that involve publication/conveyance (section 15(c) and 15(d)), while the five-year catchall (section 13-205) applies to claims not requiring publication (sections 15(a), 15(b), and 15(e)); the case was remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which statute of limitations governs BIPA claims? | BIPA creates a regulatory, prophylactic privacy regime; no publication element for many BIPA duties, so the five-year catchall (13-205) applies. | BIPA protects privacy and proscribes disclosure; section 13-201 (one-year for publication/privacy) applies to BIPA claims. | Split rule: 13-201 (1 year) governs claims involving publication/conveyance (§15(c),(d)); 13-205 (5 years) governs non-publication claims (§15(a),(b),(e)). |
Key Cases Cited
- Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Ill. 2019) (describing BIPA's private right of action and statutory remedies)
- West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978 (Ill. 2021) (distinguishing privacy torts based on secrecy vs. seclusion and explaining publication)
- Benitez v. KFC Nat’l Mgmt. Co., 305 Ill. App. 3d 1027 (Ill. App. Ct. 1999) (holding section 13-201 applies only to privacy torts that include publication)
- Uldrych v. VHS of Illinois, Inc., 239 Ill. 2d 532 (Ill. 2011) (statute-of-limitations choice governed by legislative intent and plain language)
- Sharpe v. Westmoreland, 2020 IL 124863 (Ill. 2020) (de novo review applies to certified legal questions)