Earlier this year,
McGuireWoods reported that, in 2021, Illinois courts are expected to decide several open issues
related to the state’s Biometric Information Privacy Act (BIPA). Those
opinions have recently begun to be issued, providing answers regarding
BIPA’s statute of limitations and certain preemption arguments.
Tims v. Black Horse Carriers, Inc.
On Sept. 17, 2021, the Illinois Appellate Court for the First Judicial
District issued an opinion in Tims v. Black Horse Carriers, Inc.
regarding BIPA’s statute of limitations. Despite BIPA’s silence on the
applicable statute of limitations, the court found that BIPA’s statute of
limitations varies by section. Specifically, the court found that claims
under section 15(c) and (d) of BIPA are subject to a one-year limitation
period, while claims under section 15(a), (b) and (e) are subject to a
five-year limitation period.
The court reasoned that the one-year limitation period, found in section
13-201 of Illinois’ Code of Civil Procedure (the Code) and which governs
“publication of matter violating the right of privacy[,]” applies to BIPA
sections (c) and (d) because these sections both clearly include an element
of publication or disclosure of biometric data. In particular, it is a
section 15(c) violation for a private entity to “sell, lease, trade or
otherwise profit from” biometric identifiers or information it possesses.
Likewise, it is a section 15(d) violation for a private entity to
“disclose, redisclose, or otherwise disseminate” biometric identifiers or
information absent certain exceptions outlined in section 15(d)(1) through
Conversely, the court held that violations under BIPA sections 15(a), (b)
or (e) involve “absolutely no element of publication or dissemination.”
Actions under these sections charge private entities with failing to
develop BIPA-required written policies governing retention and destruction
of biometric data (15(a)); obtaining biometric data without providing
notice and receiving a written release (15(b)); or failing to take
reasonable care in storing, transmitting and protecting biometric data
(15(e)). The court found that these sections are more appropriately subject
to the Code’s five-year limitation period for “all civil actions not
otherwise provided for.”
The court’s opinion also mentioned that BIPA allows aggrieved parties to
recover for “each violation” and that plaintiffs therefore could collect
multiple recoveries if they prove violations of multiple duties under BIPA.
Plaintiffs may attempt to leverage this language and suggest that
“per-scan” damages are recoverable (as discussed below). However,
importantly, the court’s ruling was narrowly limited to the certified
question regarding the applicable statute of limitations.
Fernandez, et al. v. Kerry, Inc.
On Sept. 20, 2021, a mere six days after hearing oral argument, the United
States Court of Appeals for the Seventh Circuit affirmed a district court
decision to dismiss lead plaintiff Maximo Fernandez’s class action BIPA
case. The Seventh Circuit agreed with the district court that Fernandez’s
suit was preempted by §301 of the Labor Management Relations Act (LMRA), 29
U.S.C. §185, because resolution of the case depended on interpretation of
the collective-bargaining agreements between the defendant, Kerry, Inc.,
and the plaintiffs’ union. The court relied on its prior opinion in Miller v. Southwest Airlines Co., which held that portions of the
Railway Labor Act akin to §301 prohibit workers from directly bargaining
with their employers about clocking in and out. The court found that the
LMRA did not call for a different result, and that any question about
whether the union consented to biometric collection was a proper subject
for arbitration if called for under the collective bargaining agreement and
requested by the union.
Cothron v. White Castle System, Inc.
On the same day as the Seventh Circuit heard the Fernandez
arguments, it also heard oral arguments in Cothron v. White Castle System, Inc., a case set to decide whether
each scan of an employee’s biometric information is a separate violation of
BIPA sections 15(b) and (d). As White Castle’s counsel pointed out during
oral argument, a decision in the plaintiff’s favor in this matter would
result in an explosion of BIPA damages that could, in many cases, bankrupt
While the Seventh Circuit was quick to decide Fernandez, as of the
time of this publication, a decision has yet to be issued for Cothron. The court’s questioning at oral argument also suggested
that it may certify the damages question presented in Cothron to
the Supreme Court of Illinois rather than decide the issue itself. The
panel highlighted that federal courts handle many BIPA cases only because
of Class Action Fairness Act removal and suggested that this has hindered
Illinois appellate courts from interpreting BIPA.
However, in 2019, the Illinois Supreme Court did weigh in on BIPA in Rosenbach v. Six Flags Entertainment Corp. and unanimously
concluded that an employee need not have suffered an actual injury to seek
liquidated damages under BIPA. Given Rosenbach, many
Illinois employers are hoping the Seventh Circuit elects to decide the
impactful issues in Cothron itself.
McDonald v. Symphony Bronzeville Park LLC
Most recently, on Sept. 23, 2021, the Illinois Supreme Court heard oral
arguments regarding whether BIPA statutory damages claims brought by
employees against their employers are preempted by the Illinois’ Workers’
Compensation Act (WCA). During argument, the court questioned whether the
defense’s interpretation would be contrary to BIPA’s language and defeat
the purpose of the statue. The court also questioned whether employer BIPA
violations are intentional acts such that they would be excluded from WCA
coverage. However, the court also extensively questioned McDonald’s
position. The court questioned why an employee’s injury for loss of a
privacy right in the workplace should be treated any differently from an
unintentional physical or emotional injury suffered in the workplace, both
of which would be covered by the WCA. The court also questioned whether
McDonald was arguing that all BIPA claims are excluded from the WCA despite
the lack of language in either statute expressly making such an exclusion.
The argument provides some hope for employers that the Illinois Supreme
Court will find the preemption defense valid at least in part.
The BIPA rulings to date have been a mixed bag for employers. For unionized
workplaces, Fernandez is yet another strong preemption decision
for BIPA claims pending in federal court. However, the appellate court
ruling in Tims continues to apply a five-year limitations period
for the more prevalent section 15(a) and 15(b) claims. Employers would be
wise to watch for the forthcoming decisions in Cothron and McDonald, as well as other pending BIPA Illinois state
court appeals which will impact BIPA claims and defenses.
For more information on BIPA requirements for employers, please see
prior publication or contact the authors, other members of the McGuireWoods labor and
employment team, or your McGuireWoods contact.