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The Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data. 740 ILCS 14/15. Passed in October 2008, BIPA is intended to protect a person’s unique biological traits – the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry. Id. But in the last few years, BIPA – with its statutory penalties of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation – has quickly become the bane of corporate defendants. The situation became even worse after the Illinois Supreme Court’s Rosenbach decision. Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186. In Rosenbach, the Court held that a “violation [of the statute], in itself, is sufficient to support the individual’s or customer’s statutory cause of action.” Id. at ¶33 (emphasis added). In other words, a bare statutory violation confers standing on a BIPA plaintiff. See id.

The Supreme Court’s ruling has, predictably, spurred additional litigation asserting bare violations of the statute. Hundreds of lawsuits have now been filed following the January 2019 decision, with almost all of the lawsuits brought as class actions. The lack of standing had been a key argument for defendants facing BIPA lawsuits. With that argument now foreclosed, corporate defendants are pinning their hopes on a new challenge to the statute: its limitations period.

BIPA itself does not include a statute of limitations. Stauffer v. Innovative Heights Fairview Heights, LLC, No. 3:20-CV-46-MAB, 2020 WL 4815960, at *11 (S.D. Ill. Aug. 19, 2020).[1] When a statute does not delineate its limitations period, the limitations period is five years – unless there is statute of limitations that is “more specifically applicable.” Id. (citing 735 ILCS 5/13-205). Defendants have trained their sights on two specific limitations period, eyeing this latter principle.

Invasion of privacy claims come with a one-year statute of limitations. Id. (citing 735 ILCS 5/13-201). And because BIPA is, fundamentally, a privacy statute, the argument is that BIPA should be subject to a one-year limitations period. See id. (summarizing the argument). Statutes that carry a statutory penalty come with a two-year statute of limitations. Meegan v. NFI Indus., Inc., No. 20-CV-465, 2020 WL 3000281, at *4 (N.D. Ill. June 4, 2020) (citing 735 ILCS 5/13-202). And because almost all BIPA actions claim the statutory damage amount (rather than seeking actual damages), the argument is that BIPA should be subject to a two-year limitations period. See id. (summarizing the argument). Alas, these arguments have not carried the day. Both the federal courts and the Illinois trial courts have concluded that BIPA is subject to the five-year catchall limitations period. See, e.g., Stauffer, 2020 WL 4815960, at *11; Meegan, 2020 WL 3000281, at *4 ; Robertson v. Hostmark Hospitality Group, Inc., 2019 WL 8640568, at *4 (Ill. Cir. Ct. Chan. Div. July 31, 2019).

Clarity may be coming soon. The Appellate Court of Illinois, First District, is poised to decide what limitations period applies to BIPA claims. See Tims v. Black Horse Carriers, Inc., Case No. 1-20-0563 (1st Dist.). Indeed, just last week the U.S. District Court for the Northern District of Illinois granted a motion to stay pending the Tims decision, agreeing that the decision had the potential to clarify the “the unsettled legal question of which statute of limitations applies to BIPA claims.” Vaughan v. Biomat USA, Inc., No. 1:20-CV-4241, 2020 WL 6262359, at *1 (N.D. Ill. Oct. 23, 2020). A one-year limitations period could warrant dismissal of the plaintiff’s claims in Vaughan, see id., and would certainly reverberate throughout the hundreds of currently pending BIPA cases.

No matter the outcome, the Tims decision will likely find its way to the Illinois Supreme Court, since it would be the first appellate case to decide the applicable statute of limitations. After Rosenbach v. Six Flags, corporate defendants will be hoping for a smoother ride.

[1] Disclosure: the author is counsel for Innovative Heights Fairview Heights, LLC in this case.