Duane Morris Privacy Class Action Review – 2024

Having decided that a singular uniform statute of limitations should apply, the Illinois Supreme Court next analyzed whether the statute of limitations should be five years or one year. Analyzing the plain language of the BIPA statute, the Illinois Supreme Court held that all five subsections of § 15 of the Act prescribe rules to regulate the collection, retention, disclosure, and destruction of biometric identifiers and biometric information. Id. ¶ 29. In regard to the Illinois Appellate Court’s holding that §§ 15(a), 15(b), and 15(e) of the Act contained no words that could be defined as involving “publication,” the Illinois Supreme Court held that the Illinois Appellate Court correctly found that subsections (a), (b), and (e) are subject to the five-year “catchall” limitations period codified in § 13-205 of the Code. Id. ¶ 30. Turning to subsections (c) and (d), the Illinois Supreme Court acknowledged that the one-year statute of limitations could be applied. Id. ¶ 32. However, the Illinois Supreme Court held that, “when we consider not just the plain language of § 15 but also the intent of the legislature, the purposes to be achieved by the statute, and the fact that there is no limitations period in the Act, we find that it would be best to apply the five-year catchall limitations period codified in § 13-205.” Id. ¶ 30. The Illinois Supreme Court explained that this outcome would further its goal of ensuring certainty and predictability in the administration of limitations periods that apply to causes of actions under the BIPA. Id. ¶ 32. In support of its conclusion, the Illinois Supreme Court held that Illinois courts have routinely applied this five-year catchall limitations period to other statutes lacking a specific limitations period, such as the BIPA. Id. ¶ 34. Finally, the Illinois Supreme Court examined the Illinois General Assembly’s goals in enacting the BIPA statute. The Illinois Supreme Court opined that in light of the extensive consideration the General Assembly gave to the fears of and risks to the public surrounding the disclosure of highly sensitive biometric information, “it would thwart legislative intent to (1) shorten the amount of time an aggrieved party would have to seek redress for a private entity’s noncompliance with the Act and (2) shorten the amount of time a private entity would be held liable for noncompliance with the Act.” Id. ¶ 39. The opinion also noted that defamation torts such as libel and slander are subject to a short limitations period because aggrieved individuals are expected to quickly become apprised of the injury and act promptly when their reputation has been publicly compromised, while it would be uncertain as to whether an individual would ever become aware of their biometric being improperly disclosed or misappropriated. Id. The Illinois Supreme Court concluded its opinion by holding that the five-year limitations period contained in § 13-205 of the Code controls claims under the BIPA. Therefore, the Illinois Supreme Court affirmed in part and reversed in part the judgment of the Appellate Court, and remanded the case for further proceedings. Looking ahead to 2024, to the extent the plaintiffs’ bar had any hesitation about the scope of the BIPA, these two Illinois Supreme Court rulings removed all doubts, and affirmed the floodgates are wide open. 2. First Illinois BIPA Class Action Jury Verdict In Rogers, et al. v. BNSF Railway Co ., Case No. 19-CV-03083 (N.D. Ill. Oct. 12, 2022), the first federal court jury trial in a case brought under the BIPA, the plaintiffs secured a verdict in favor of the class of 45,600 workers against the defendant BNSF. After a week-long trial in the U.S. District Court for the Northern District of Illinois in Chicago, the jury found that BNSF recklessly or intentionally violated the law 45,600 times, based on the defense expert’s estimated number of drivers who had their fingerprints collected. The court thereafter entered a judgment against BNSF for $228 million. The plaintiff, a truck driver, filed a class action lawsuit alleging that BNSF unlawfully required drivers entering the company’s facilities to provide their biometric information through a fingerprint scanner. He claimed that BNSF collected the drivers’ fingerprints without first obtaining informed written consent and therefore violated § 15(b) of the BIPA. BNSF argued that it did not operate the biometric equipment and instead sought to shift blame to a third-party vendor who operated the biometric equipment that collected drivers’ fingerprints. The case proceeded before a jury in federal court in Chicago. The proceeding was

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