BIPA Claim Accrual Update

By Alexander J. Brinson and Mitchel D. Torrence

Introduction

Clausen Miller’s Technology & Cyber Group provides the following update to keep you informed on recent important cases adjudicating Illinois’ Biometric Information Privacy Act (“BIPA”). BIPA regulates the collection, use, safeguarding, handling, storage, retention, and destruction of individuals’ biometric information, such as fingerprints.

Illinois law generally provides that a “cause of action ‘accrues’ when facts exist that authorize the bringing of a cause of action.” A question has arisen as to whether a claim under the Act accrues when a person’s biometric data is first collected or if a claim accrues each time biometric data is stored in violation of the Act. Recent decisions under the Act are beginning to shed light on the question.

Facts

An Illinois appellate court concluded that claims brought under Sections 15(a), (b), and (e) of BIPA are subject to a five-year statute of limitations, while BIPA claims brought under Sections 15(c) and (d) are subject to a one-year statute of limitations. Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563. A petition for leave to appeal to the Illinois Supreme Court was allowed following the Tims decision; however, the Illinois Supreme Court has not yet issued an opinion. Three recent decisions analyze when a claim under the Act accrues for purposes of the applicable statute of limitations.

Analysis

In Watson v. Legacy Healthcare Fin. Servs., LLC, 2021 IL App (1st) 210279, a certified nursing assistant was required by his employer to scan his fingerprint and/or handprint in order to clock-in and clock-out of work each day. The trial court granted defendants’ motion to dismiss, holding that the “plaintiff’s claim accrued with the initial scan on December 27, 2012” and was time-barred by the five-year statute of limitations. The appellate court reversed, finding 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. Almost every substantive section of the Act supports this finding.”

In Cothron v. White Castle Sys., 20 F.4th 1156 (7th Cir. 2021), the Seventh Circuit analyzed a claim brought by the manager of a White Castle restaurant alleging that she was required to scan her fingerprint to access the restaurant’s computer system. White Castle moved for judgment on the pleadings, arguing that a claim accrued the first time the manager scanned her fingerprint into the system after BIPA took effect in 2008, and her suit was therefore untimely under even the longest possible statute of limitations. Upon interlocutory appeal, the Seventh Circuit stated that, “[w]hether a claim accrues only once or repeatedly is an important and recurring question of Illinois law implicating state accrual principles as applied to this novel state statute. It requires authoritative guidance that only the state’s highest court can provide.” Thus, the Seventh Circuit stayed proceedings while the matter is under consideration by the Illinois Supreme Court.

Most recently, in Rogers v. BNSF Ry. Co., 2022 U.S. Dist. LEXIS 45578 (N.D. Ill. 2022), a truck driver alleged that he is required to scan his fingerprint to gain entry into defendant BNSF’s railyards. BNSF moved for summary judgment on plaintiff’s claims, arguing in part that the claims are untimely under a five-year statute of limitations running from when plaintiff first scanned his fingerprint into the system. The district court denied BNSF’s motion, holding “[t]he clock for [plaintiff’s] BIPA claims reset upon each violation, meaning his claim in the present case is timely, as BNSF is claimed to have continued to scan his fingerprints dozens of times within the five years preceding this suit.”

Learning Point: The case law surrounding BIPA is continuing to progress. BIPA cases concerning accrual present the theme that a new claim accrues each time biometric data is collected in violation of the Act. Courts thus far have consistently rejected the first-in-time or “one-and-done” theory of accrual. Although we await guidance from the Illinois Supreme Court in Tims, defendants still have substantial grounds to seek dismissal and resolution of BIPA claims, including arguments related to accrual. Clausen Miller’s Technology & Cyber Group has the resources and expertise to defend these cases and counsel clients on BIPA-related issues.