In a highly anticipated decision, the Illinois Supreme Court in Tims v. Blackhorse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023), recently resolved longstanding uncertainty about the statute of limitations under the Illinois Biometric Information Privacy Act (“BIPA”). The Court held all claims arising under BIPA are governed by the five-year “catch-all” statute of limitations period provided by section 13-205 of the Illinois Code of Civil Procedure. See 735 ILCS 5/13-205. In so holding, the Court adopted the most expansive of the two limitations periods at issue. And it rejected Defendant’s—and the broader defense bar’s—contention that Illinois’ one-year limitations period, as applied to certain privacy/defamation actions, should extend to all BIPA actions.
Notably, the Supreme Court reversed, in part, the First District Illinois Appellate Court’s decision that incongruently applied a one-year limitations period to claims arising under Sections 15(c), and 15(d)—but a five-year limitations period for BIPA actions accruing under Sections 15(a), 15(b), and 15(e). Under the Appellate Court’s reasoning, Sections 15(c) and 15(d) included elements of publication analogous to certain common law privacy torts, and, for that reason, required application of Illinois’ one-year statute of limitations for “actions for slander, libel or for publication of matter violating the right of privacy” 735 ILCS 5/13-201. At the same time, the Appellate Court applied the “catch all” five-year statute of limitations period to claims under Sections 15(a), 15(b), and 15(e), reasoning no publication element was involved. 735 ILCS 5/13-205.
Favoring a consistent statutory application, the Supreme Court held the general catch-all period of five-years for “all civil actions not otherwise provided for” applied to not just Section 15(a), 15(b), and 15(e) claims, but also Section 15(c) and 15(d) claims. The Supreme Court explained that applying a different limitations period to claims arising under separate sections would be unworkable and contrary to the legislature’s intent to provide “certainty, predictability, and uniformity.” Tims, 2023 IL 127801 ¶ 37. According to the Supreme Court, a shortened limitations period would cut against BIPA’s intent by unduly shortening the amount of time an aggrieved party would have to bring a claim and by limiting the time a private entity could be held liable for failing to comply with BIPA. See id. at ¶ 39.
Tims presents an additional challenge for BIPA defendants who may now be faced with claims potentially five times greater in scope than if the one-year statute of limitations applied. On the other hand, commentators have noted that a longer statute of limitations period may result in the possibility of insurance coverage going back multiple policy periods. This is especially true where some carriers have begun inserting BIPA exclusions into more recent polices. For this reason, early compliance remains critical to shutting down, or at the very least limiting, the impact of class-wide litigation for alleged BIPA violations.