A plaintiff has her fingerprints forever. But she doesn’t have forever to file a lawsuit for improper retention, deletion, collection, or use of her fingerprints. For years, Illinois courts have been perplexed on what statute of limitations applies to different claims under the Illinois Biometric Information Privacy Act (“BIPA”). That left an unanswered question: how long does a plaintiff have to file a BIPA claim before losing it? The Illinois Supreme Court weighed in last week, siding with the plaintiffs’ bar. In Tims v. Black Horse Carriers, Inc., that Court held that plaintiffs have five years to file any BIPA claim.
The five-year period comes from a catch-all statute of limitations. That limitations period generally applies to claims brought under laws that do not have their own statute of limitations. Many defendants like Tims instead argued that a one-year statute of limitations applies to all BIPA claims. Disagreeing with the lower appellate court, which found a 1-year period applied to some claims, the Court held that only one statute of limitations should apply to all BIPA claims. That led the Court to choose the longer five year period because it could apply to all BIPA claims, not only some of them.
The recent ruling opens up the number of BIPA claims that may get past early motions to dismiss. Multiple cases that are currently on hold pending the Tims decision are likely to move forward in light of this result.
Putting It Into Practice: The number of BIPA cases filed may increase in light of the Illinois Supreme Court’s guidance on the statute of limitations. Other issues, like when a BIPA claim accrues, remain open questions for that court. Companies affected by BIPA should remain vigilant in light of the court’s focus on broadly effecting BIPA’s policy goals.
