Illinois Appellate Court Specifies BIPA Accrual of Statute of Limitations

On December 15, 2021, the First District of the Illinois Appellate Court decided a heavily litigated issue under the Illinois Biometric Information Privacy Act (BIPA): When does the statute of limitations to file suit under BIPA start to run? In more technical terms, when does a claim accrue under BIPA? In the first appellate court decision addressing this issue, Watson v. Legacy Healthcare Financial Services, LLC, the court held that BIPA claims accrue each time an entity captured biometrics in violation of BIPA.

The plaintiff in Watson brought a putative class action lawsuit under BIPA in the Circuit Court of Cook County, Illinois, alleging that the defendant did not comply with BIPA’s multiple procedural requirements in deploying a so-called biometric timeclock that scanned employees’ fingerprints or handprints. The trial court held that the statute of limitations for plaintiff’s BIPA claims was five years — a conclusion mostly consistent with a subsequent appellate court decision on this issue. It also concluded that plaintiff’s claims accrued with the first alleged biometric scan. Since plaintiff’s initial scan occurred more than five years before he filed suit, the court held his suit was time-barred.

The First District Appellate Court accepted appeal of this decision. In arguing for reversal, plaintiff maintained that the statute of limitations accrued with each capture of his biometric information obtained without the requisite notice or consent, rather than the claim accruing (and thus the statute of limitations starting to run) at the initial alleged biometric scan only. The Watson court noted that BIPA does not set forth an accrual date for statute of limitations purposes. Nonetheless, the court sided with plaintiff and concluded 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,” and rejected defendants’ argument that the accrual date occurred with the first alleged unlawful collection.

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