Illinois Appellate Court Specifies BIPA Accrual of Statute of Limitations
On December 15, 2021, the First District of the Illinois Appellate Court decided a heavily litigated issue under the Illinois Biometric Information Privacy Act (BIPA): When does the statute of limitations to file suit under BIPA start to run? In more technical terms, when does a claim accrue under BIPA? In the first appellate court decision addressing this issue, Watson v. Legacy Healthcare Financial Services, LLC, the court held that BIPA claims accrue each time an entity captured biometrics in violation of BIPA.
The plaintiff in Watson brought a putative class action lawsuit under BIPA in the Circuit Court of Cook County, Illinois, alleging that the defendant did not comply with BIPA’s multiple procedural requirements in deploying a so-called biometric timeclock that scanned employees’ fingerprints or handprints. The trial court held that the statute of limitations for plaintiff’s BIPA claims was five years — a conclusion mostly consistent with a subsequent appellate court decision on this issue. It also concluded that plaintiff’s claims accrued with the first alleged biometric scan. Since plaintiff’s initial scan occurred more than five years before he filed suit, the court held his suit was time-barred.
The Frist District Appellate Court accepted appeal of this decision. In arguing for reversal, plaintiff maintained that the statute of limitations accrued with each capture of his biometric information obtained without the requisite notice or consent, rather than the claim accruing (and thus the statute of limitations starting to run) at the initial alleged biometric scan only. The Watson court noted that BIPA does not set forth an accrual date for statute of limitations purposes. Nonetheless, the court sided with plaintiff and concluded that, “the plain language of the statute establishes that it applies to each and every capture and use of plaintiff’s fingerprint or hand scan,” and rejected defendants’ argument that the accrual date occurred with the first alleged unlawful collection.
Analysis
The upshot of this decision — that a BIPA claim runs each time an entity unlawfully captures, collects or otherwise violates BIPA — is that it is far more likely that a plaintiff’s BIPA lawsuit will be timely, and thus far more difficult to dismiss a BIPA lawsuit on statute-of-limitations grounds.
However, the Watson court made two additional points that should provide some comfort to employers, manufacturers or other entities confronting BIPA litigation.
First, the court made clear that it was not deciding whether each unlawful scan was a “new and separate violation” or a “continuing violation,” meaning that it was not deciding that each scan gives rise to damages under BIPA. Indeed, the court expressly stated that, “Questions relating to damages are not before us.”
Second, the court observed that under BIPA, “damages are discretionary not mandatory,” citing Section 20 of BIPA, which provides that a prevailing party “may” recover damages and other relief for each violation. Thus, the court seems to suggest that even a party that prevails in a BIPA case could receive less than the liquidated damages of $1,000 or $5,000 per violation, or perhaps even no damages at all if a plaintiff cannot prove negligent, reckless or intentional conduct.
At this point, the defendants could seek a discretionary appeal to the Illinois Supreme Court. Additionally, the federal Seventh Circuit Court of Appeals is poised to address this accrual issue as well, in Cothron v. White Castle System, Inc., and that court noted it could certify this issue to the Illinois Supreme Court. Barring further action from the Illinois Supreme Court, this decision should further embolden the plaintiff’s bar to continue to avalanche the courts with BIPA class action lawsuits.