Duane Morris Privacy Class Action Review – 2024

The Illinois Supreme Court also addressed White Castle ’ s argument that in light of the BIPA ’ s liquidated damages provision, interpreting the statute to mean an entity violates §§ 15(b) and 15(d) every time it collects or discloses biometric data means “a party may recover for ‘ each violation,’ allowing multiple or repeated accruals of claims by one individual could potentially result in punitive and ‘ astronomical’ damage awards that would constitute ‘ annihilative liability’ not contemplated by the legislature and possibly be unconstitutional.” Id. at 41. For example, White Castle estimated that if the plaintiff was successful and allowed to bring her claims on behalf of as many as 9,500 current and former White Castle employees, class-wide damages in her action may exceed $17 billion. Once again, the Illinois Supreme Court rejected White Castle ’ s argument. It reasoned that the statutory language is clear and supported plaintiff ’ s position. Importantly, however, the Supreme Court acknowledged that trial courts could exercise their discretion to reduce the amount of statutory damages that can be recovered at trial. Id. at 42. Accordingly, the Illinois Supreme Court concluded that the plain language of §§15(b) and 15(d) showed that a claim accrues under the BIPA with every scan or transmission of biometric identifiers or biometric information without prior informed consent. While the Illinois Supreme Court ’ s ruling in Cothron has motivated the plaintiffs’ bar to continue to file class action lawsuits under the BIPA, it was far from the only BIPA case to change the landscape of privacy litigation over the past year. In one of the most highly anticipated class action rulings in years, in Tims, et al. v. Black Horse Carriers, Inc. , No. 127801 (Ill. Feb. 2, 2023), the Illinois Supreme Court held that a five-year statute of limitations applies to claims under the BIPA. In March 2019, the plaintiff filed a class action complaint alleging that the defendant violated the BIPA through its timekeeping practices that involved the scanning and storing of employees’ fingerprints. The plaintiff asserted claims under three sub-sections of the law, including: (1) § 15(a) of the BIPA, for failing to institute, maintain, and adhere to a retention schedule for biometric data; (2) § 15(b) of the BIPA, which states that no private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information without notice and consent; and (3) § 15(d) of the BIPA, which involves the unlawful disclosure or dissemination of biometric data without first obtaining consent. Of note, § 15(c) of the BIPA prohibits the sale of a person’s biometric data for a profit, and § 15(e) of the BIPA imposes a duty of reasonable care in storing and protecting biometric data from disclosure. On September 17, 2021, the Illinois Appellate Court held in Tims that a one-year limitations period pursuant to § 13-201 of the Illinois Code of Civil Procedure governs actions under §§ 15(c) and (d) of the BIPA, while a five-year statute of limitations pursuant to § 13-205 applies to §§ 15(a), (b), and (e). The Illinois Appellate Court explained that the BIPA imposes various duties that are separate and distinct from one another. While each of the duties set forth under §§ 15(a)-(e) “concern privacy,” the Appellate Court reasoned that a private entity could violate §§15(a), (b), or (e) “without having to allege or prove that the defendant . . . published or disclosed any biometric data.” Tims v. Black Horse Carriers, Inc. , 2021 IL App (1st) 200563, ¶ 31 (1st Dist. Sept. 17, 2021) . However, the “publication or disclosure of biometric data is clearly an element of an action under” §§ 15(c) and (d). Id. ¶ 32. Accordingly, the Illinois Appellate Court applied the state’s one-year statute of limitations for right of privacy claims for §§ 15(c) and (d), and applied the five-year “catch all” statute of limitations for §§ 15(a), (b), and (e). The Illinois Supreme Court in Tims affirmed in part and reversed in part the Illinois Appellate Court’s decision. First, the Illinois Supreme Court notably opined that it, “agree[d] with the parties that the [A]ppellate [C]ourt erred in applying two different statutes of limitations to the Act.” Tims, 2023 IL 127801, at ¶ 16. It explained that one of the purposes of a limitations period is to reduce uncertainty and create finality and predictability in the administration of justice. Id. ¶ 20. The Illinois Supreme Court thus held that, “applying two different limitations periods or time bar standards to different subsections of § 15 of the Act would create an unclear, inconvenient, inconsistent, and potentially unworkable regime as it pertains to the administration of justice for claims under the Act.” Id. ¶ 21.

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