2021 IL App (1st) 210279
Ill. App. Ct.2021Background
- Watson, a certified nursing assistant, was required to scan his entire hand (fingerprint/handprint) to clock in/out while working at facilities owned/operated by Legacy, Lincoln Park, and South Loop between 2012–2019.
- He sued (filed March 15, 2019) under the Biometric Information Privacy Act (BIPA), alleging defendants failed to (1) publish a retention/destruction policy, (2) provide written notice of collection, (3) state purpose/retention period, and (4) obtain written consent as required by 740 ILCS 14/15.
- Defendants moved to dismiss under section 2-619, arguing BIPA claims accrued on the first collection and therefore were time-barred by the five-year statute of limitations for claims against Legacy and Lincoln Park (first scans predated five years before suit); they also asserted preemption defenses (Workers’ Comp and LMRA).
- The trial court dismissed Legacy and Lincoln Park (holding accrual at first scan) but later vacated dismissal as to South Loop on reconsideration; Rule 304(a) certification permitted this interlocutory appeal by Watson.
- The appellate court reversed dismissal of Legacy and Lincoln Park, holding BIPA’s language, purpose, and legislative history support treating each collection/use (or at least not limiting accrual to the first capture) as actionable for accrual/SOL purposes; damages issues and preemption were left for later proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date for a BIPA claim (when statute of limitations begins) | Accrual occurs with each unlawful capture/use (e.g., last or repeated scans); therefore claims within 5 years survive | Accrual occurs at the first collection/capture, so claims based on later use are time-barred | Reversed trial court: BIPA’s text, purpose, and history show obligations apply to each capture/use; accrual is not limited to the first collection (claims survive dismissal) |
| Dismissal under 735 ILCS 5/2-619 based on statute-of-limitations | Deny dismissal because multiple collections/uses within SOL provide actionable violations | Grant dismissal because earlier, first capture started the limitations period beyond five years | Court reversed the 2-619 dismissal as to Legacy and Lincoln Park; questions about discrete vs. continuing violations and damages reserved for later proceedings |
| Preemption by LMRA / Workers’ Compensation Act | BIPA claims not preempted; trial court found no preemption | Defendants argued LMRA (and Workers’ Comp) preempted the claims | Appellate court declined to decide LMRA preemption on appeal (no cross-appeal by defendants); trial court had found no preemption but that ruling is not addressed here |
| Newly discovered evidence re: Lincoln Park’s formation (affecting accrual) | Lincoln Park did not exist until July 23, 2015, so its first collection was within 5 years | Evidence was not newly discovered; initial collection date controls | Appellate court did not resolve the newly discovered-evidence issue because it reversed the dismissal on statutory interpretation grounds |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (procedural standard for 2-619 motions)
- Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 (2-619 admissions and affirmative matters)
- Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (BIPA violation alone gives rise to statutory cause of action)
- Feltmeier v. Feltmeier, 207 Ill. 2d 263 (accrual principles where harm accrues at last actionable act; discussed and distinguished)
- Cothron v. White Castle System, Inc., 477 F. Supp. 3d 723 (N.D. Ill. 2020) (district court denying dismissal under similar accrual argument)
- Hernandez v. Lifeline Ambulance, LLC, 2020 IL 124610 (de novo review standard on 2-619 appeal)