The Illinois Supreme Court today released its groundbreaking decision involving statute of limitations in the notorious Biometric Information Privacy Act (“BIPA”). I have written extensively on the onslaught of complaints on this issue pending in both federal and state courts.
In Tims v. Black Horse, the Illinois Supreme Court reversed the First District Appellate Court and found that the five-year statute of limitations period in section 13-205 of the Illinois Code of Civil Procedure applies to sections 15(a), 15(b), and 15(e) of BIPA, and the one-year statute of limitations period in section 13-201 of the Illinois Code of Civil Procedure applies to claims arising under sections 15(c) and 15(d) of BIPA.
Below are the relevant statutes, bold corresponds with the five-year statute of limitations period, while italics indicates the one-year statute of limitations period applies.
Biometric Information Privacy Act – 740 ILCS 14/15
740 ILCS 14/15 (in relevant part)
Illinois Code of Civil Procedure – 735 ILCS 5/13-201 and 735 ILCS 5/13-205
735 ILCS 5/13-201and
735 ILCS 5/13-205
This case originated in the Circuit Court of Cook County, where Black Horse originally moved to dismiss the cause action, arguing that it was untimely and that the one-year statute of limitations applied. The trial court denied this motion and found that it was in fact the five-year statute of limitations period that applies to BIPA. After its motion to reconsider was denied, Black Horse moved to appeal the action and the First District Appellate Court heard the case.
The Appellate Court found that different portions of BIPA had different period of statutes of limitations periods. It found that the provisions which involve “publication” (namely sections 15(c) and (d) of BIPA) as outlined in section 13-205 of the Code of Civil Procedure, the one-year statute of limitations period applies. The Court however found that the other sections of BIPS which did not involve publication (namely sections 15(a), (b), and (e) of BIPA) applied the five-year statute of limitations period.
Black Horse then petitioned for leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court agreed to hear the certified question.
BLACK HORSE’S ARGUMENT
On appeal to the Supreme Court, Black Horse continues to argue that BIPA is only subject to the one-year statute of limitations period. Black Horse maintains that the Biometric Information Privacy Act should be governed by the subsection of the Illinois Code of Civil Procedure entitled “Defamation – Privacy.” It further argues that there should not be two different statute of limitations periods, and that the Privacy one-year statute of limitations should be applied toward the whole Act.
While Tims acknowledges that BIPA generally applies as a privacy statute, yet it argues that the five-year statutes apply due to the “publication” element in section 13-201. Given that BIPA generally is not intended to regulate publication, but rather protecting biometric information generally, it is actually the 13-205 provision that should apply in its entirety. Tims agrees with Black Horse that two different statutes of limitations should not apply to different portions of the statute.
SUPREME COURT’S HOLDING
The Supreme Court ruled that there should only be one statute of limitation to apply to BIPA in its entirety. Referring to Sundance Homes, Inc. v. County of Dupage, 195 Ill. 2d 257, 266 (2001) (holding that plaintiff’s claim was barred by the five-year statute of limitations under section 13-205 of the Code of Civil Procedure); In re Marriage of Goesel, 2017 IL 122046 (holding that funds already paid to an attorney in a divorce are not “available funds” as defined in the statute). In Sundance, the court reasoned that applying different statutes of limitations to different portions of the Act in question would “create an unclear, inconvenient, inconsistent, and potentially unworkable regime” in administering the law.
The Supreme Court notes that sections 15(a), 15(b), and 15(e) do not contain any words that would be included in the definition of “publication,” which is included in the language from the Civil Procedure. The Supreme Court further notes that there is language in section 15(c) and 15(d) that “an argument can be made that [words in BIPA] could be defined as involving publication.” ¶ 31 The Court reasons “we acknowledge that the one-year statute of limitations period could be applied . . . we find that it would be best to apply the five-year catchall limitations period codified in section 13-205.” ¶ 32
In short, the five-year statute of limitations period is referred to as the “catchall” provision, that applies to civil cases in which the statute does not define the statute of limitations period. The Illinois Supreme Court rejects the notion that the “Definition – Privacy” section applies because of the ambiguous term “publication.” While it is true, as the decision notes that the intent of the legislature was generally to protect consumers from their biometric information being used without their consent, it is hard to believe the purpose of the law was to expand liability so significantly. Regardless, the five-year statute of limitations now applies across the board when it comes to BIPA.