Illinois Supreme Court Issues Two Important Rulings Related to the Biometric Information Protection Act (BIPA)

The Illinois Supreme Court recently issued its long-awaited opinion in Tims v. Black Horse Carriers, ruling that a five-year statute of limitations period applies to all claims brought under all the provisions of BIPA. The decision ends the hotly contested issues affecting hundreds of BIPA class actions that have been stayed while the court resolved the issue.

The Illinois Supreme Court “acknowledge[d] that the one-year statute of limitations period could be applied to subsections (c) and (d),” but instead found that it would be best to apply a five-year catchall limitations period to all BIPA actions. The Court felt that this interpretation comports with the legislative purpose of BIPA, namely “securing the public welfare, security, and safety of the public” by regulating biometrics. Furthermore, applying the five-year catchall period will “ensure certainty, predictability, and uniformity as to when the limitations period expires” in each of the five subsections of BIPA.

More recently, the Illinois Supreme Court issued Cothron v. White Castle, Inc., which decided when BIPA claims accrue for purposes of starting the five-year clock under the statute. BIPA defendants argued that a “violation” of the statute occurs the first time an individual’s data is collected – and only once – and so the five-year limitations window starts from the first time a company obtains a biometric identifier or information. Plaintiffs asked the Illinois Supreme Court to find that a violation occurs “each time” biometrics are obtained; for example, each time an employee clocks in/out from working using a “biometric” timeclock. Some plaintiffs’ lawyers have argued that this interpretation permits an award of statutory damages each time an employee uses a clock.

In a split decision, the Court decided that a claim accrues with each violation of the statute, which will expand Illinois companies’ exposure considerably and likely put many out of business.

The insurance coverage questions for these cases just became exponentially more important. LPP is on the cutting edge of BIPA Insurance Coverage Litigation and has secured multiple good results for our clients both via summary judgment rulings and leveraging those decisions for favorable settlements. Insurance coverage for these claims will be vitally important going forward since the courts have enlarged the scope of underlying liability for these violations.

For information regarding our BIPA insurance coverage practice, reach out to Peter Syregelas at psyregelas@lpplawfirm.com.