By Danielle Kays and James Nasiri
Seyfarth Synopsis: On September 22, 2022, the Illinois Supreme Court heard oral arguments in an Illinois Biometric Information Privacy Act (“BIPA”) case entitled Tims v. Black Horse Carriers, Inc. Following an Illinois appellate court’s decision that a one-year limitations period applies to certain sections of the Act while a five-year period applies to other sections, the sole issue on appeal for the Supreme Court is to identify the proper statute of limitations for claims under the BIPA. Though the Court did not offer any strong indications as to how it will rule on this contentious question, Illinois employers should closely monitor this decision in light of its inevitable effect on BIPA litigation moving forward.
Background on Tims v. Black Horse Carriers
This case originated in March 2019, when plaintiffs Jerome Tims and Isaac Watson filed a class action lawsuit against their employer, logistics company Black Horse Carriers, Inc. Plaintiffs alleged that the company unlawfully collected, possessed, and disclosed their fingerprints in violation of BIPA when the employees clocked in and out of work using a finger scanning timeclock. The company moved to dismiss the plaintiffs’ claims as untimely, arguing that, because the BIPA does not contain its own statute of limitations, the court should apply the one-year limitations period for privacy actions set forth in § 5/13-201. The plaintiffs countered that the five-year “catch-all” limitations period contained in § 5/13-205 was more appropriate for actions under the BIPA.
In a somewhat unique ruling on interlocutory appeal, the Illinois First District Appellate Court effectively “split the baby” by holding that both the one-year and five-year limitations periods applied to different sections of the Act. Specifically, the Appellate Court reasoned that the one-year period from § 201 applies to BIPA Sections 15(c) and 15(d) because these sections involve “publication” of biometric data, which is a term explicitly used in § 201. Conversely, since the Appellate Court found that Sections 15(a), (b), and (e) of the BIPA do not involve publication of an individual’s biometric data, it applied the five-year limitations period from § 205 to these sections. The defendant subsequently appealed this decision to the Illinois Supreme Court.
Highlights from Oral Argument
Black Horse Carriers’ argument primarily centered on statutory interpretation. Namely, the company focused on the plain language of § 201, which states that “[a]ctions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year . . . .” By citing the dictionary definition of “for,” the company contended that a plain reading of the phrase “for publication” means “in relation to or concerning” publication. Because the Supreme Court in West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 183 N.E.3d 47 (Ill. 2021) found that the term “publication” suggests a disclosure to either the masses or to just one individual, like a single BIPA defendant, every section of the BIPA therefore involves some degree of publication.
In response, plaintiffs argued that “publication” is not an essential element of a BIPA claim, citing both the Act’s plain language and case law. As to BIPA’s statutory language, plaintiffs contended that “publication” necessarily requires that some information be made public, in contrast to “dissemination” or “disclosure” of biometric data from an employer to a third party, which can occur without such data being publicized. As an example, plaintiffs argued that a thief stealing items from someone’s personal safe would not be deemed a “publication” because nothing was made public.
The Justices asked only a few clarifying questions during oral argument. In one instance, Justice Overstreet asked plaintiffs to respond to the company’s brief noting that Illinois’ Second District Appellate Court had previously applied the one-year limitations period to the Illinois Right of Publicity Act, and that same analysis should apply to BIPA. Plaintiffs responded that the Right of Publicity Act concerns data breaches that necessarily involve publication, but on rebuttal, the company countered that the law actually concerns name, image, and likeness standards which are more akin to the governing of biometric data. Justice Michael Burke also chimed in during plaintiffs’ argument, noting that the Appellate Court’s holding simply seemed “unworkable” in light of the parties’ contrasting positions on the appropriate interpretation of the BIPA. Finally, Justice Michael Burke interestingly noted that this case is unique because neither party argued that the Appellate Court correctly interpreted the BIPA’s statute of limitations.
Given the flood of BIPA class action lawsuits filed against Illinois businesses after the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Ent. Corp., 129 N.E.3d 1197 (Ill. 2019), employers should pay special attention to the decision in Tims. The Illinois Supreme Court Justices did not suggest that they would rule in a certain way during oral arguments, but one takeaway was evident: the Supreme Court may not uphold the Appellate Court’s decision in its entirety. Nevertheless, while a decision in Black Horse’s favor would not fully curtail this recent wave of BIPA filings, it would certainly help limit the number of plaintiffs eligible to sue under the BIPA, as well as the potential amount of damages owed to these plaintiffs.
With respect to the expected timing of this decision, the Supreme Court’s FAQ page provides that parties should expect a decision “a few months” after oral arguments. More specifically, a 2017 analysis by the Illinois Supreme Court Review found that the average time between oral argument and decision at the Illinois Supreme Court was 137.8 days (about 4 1/2 months). Therefore, a decision in Tims likely will not be issued until early next year. Finally, it is also important to note that the Illinois Supreme Court is still considering the related question of when a claim accrues under the BIPA, as part of a case entitled Cothron v. White Castle Systems. For an excellent synopsis of Cothron, see our prior blog on the matter HERE.