Post Authored by Haley Jenkins

In the last three years, state and federal courts in Illinois have seen an increase in litigation under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. BIPA represents the Illinois legislature’s intention that sensitive biometric data necessitates special protections. In 2007, the Illinois legislature, alarmed by the risk that the millions of fingerprint records amassed by technology company Pay By Touch would be sold as an asset or otherwise disclosed through its bankruptcy, and recognizing the “very serious need [for] protections for the citizens of Illinois when it [came to their] biometric information,” enacted BIPA in 2008. See Illinois House Transcript, 2008 Reg. Sess. No. 276; see also 740 ILCS 14/5. BIPA’s legislative finding indicated that the legislature’s goal was to protect Illinois residents from the unique threat posed by biometrics:

“Biometrics are unlike other unique identifiers that are used to access finances or other sensitive information. For example, social security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual; therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”

740 ILCS 14/5(c).

But the law has been so far unsettled regarding what statute of limitations applies to BIPA, with many defendants arguing that the appropriate limitations period is one or two years, while plaintiffs assert that a five-year limitations period applies because BIPA has no self-contained limitations period. Absent a specifically applicable statute or rule to the contrary, the “default” limitations period for civil actions in Illinois is five years. 735 ILCS 5/13-205. Courts ruling on motions for class certification have employed five-year limitations periods, but until recently, no courts had ruled on the applicable statute of limitations.

On July 31, 2019, the Honorable Neil H. Cohen issued a ruling in Robertson v. Hostmark Hospitality Group, Inc., et al., Case No. 18-CH-5194 (Cir. Ct. Cook Cnty.), rejecting the defendants’ arguments that a one- or two-year statute of limitations applies to BIPA claims. There, the defendants contended that the one-year limitations period for privacy actions governs BIPA violations. But the Court rejected that argument, holding, “[R]egardless of [plaintiff’s] allegation that his privacy rights were violated; we are dealing with an action for a violation of the BIPA statute and not an action for slander, libel, or for the publication of a matter violating the right to privacy.” The Court went on to state that even if BIPA claims were privacy actions, “the plain and unambiguous language of Section 13-201 is clear that it applies to actions for publication of a matter violating the right of privacy.” Id. (emphasis in original).

Alternatively, the defendants posited, the two-year limitations period for statutory penalties applies to BIPA claims. See 735 ILCS 5/13-202. But the Court disagreed that BIPA is penal in nature simply because it offers plaintiffs the ability to recover actual or liquidated damages. The Court analogized BIPA to the Telephone Consumer Protection Act (“TCPA”), which also allows a plaintiff to recover either their actual damages or a statutory liquidated amount. Quoting the Illinois Supreme Court decision in Standard Mutual Ins. Co. v. Lay, 2013 IL 114617, ¶ 32, the Court held, “Whether this court views [BIPA’s] liquidated damages provisions ‘as a liquidated sum for actual harm, or as an incentive for aggrieved parties to enforce the statute, or both, the [liquidated damages] amount clearly serves more than purely punitive or deterrent goals.’” Id.

Accordingly, the Court determined that the five-year “catch-all” statute of limitations applies to BIPA actions. This issue will undoubtedly continue to be litigated, but the current state of the law represents a victory for Illinois citizens whose rights under BIPA have been violated.

About the Author:

Haley litigates on behalf of Stephan Zouras, LLP clients in both class and individual litigation. A spirited advocate, Haley represents people in a broad spectrum of legal disputes ranging from unpaid wages and employee misclassification, to antitrust, consumer fraud, whistleblower actions, and qui tam cases. Haley joined the Stephan Zouras team as a law clerk in 2015 while attending law school. Haley graduated cum laude from Chicago-Kent College of Law in 2016, where she was a member of the Dean’s List, served as the Vice President of Fundraising for the Student Humanitarian Network, and was a two-time regional champion with the Chicago-Kent Trial Advocacy Team. Haley and her cases have been profiled by numerous media outlets including the Chicago Tribune, Crain’s Chicago, and FundFire.