You Win Some, You Lose Some – Litigation, Mediation & Arbitration

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United States:

You gain something, you lose something

October 13, 2021

Michael Best & Friedrich

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Last week, an Illinois appeals court split the difference, finding that claims under the state’s Biometric Information Privacy Act that include disclosure of proprietary information to third parties have a one-year statute of limitations, while those claims have a five-year statute of limitations.

The law contains five subsections which establish potential claims in connection with the collection, storage, transmission and use of information or data. Two of these subsections – (c) and (d) – involve the disclosure of the regulated information to third parties and are therefore subject to the one-year limitation period for data protection claims. The other three – (a), (b) and (e) – can also be violated if the defendant does not pass the information on to third parties and are therefore subject to the five-year limitation period.

There is likely to be something for everyone in that decision, and defendants are pleased that at least some of the BIPA recognized claims have a shorter statute of limitations. Plaintiffs, meanwhile, will welcome confirmation of a five-year statute of limitations on most claims, and will likely argue that this distinction underpins an argument that legal damages are available for violations of any of the subsections of the law rather than single compensation for all violations.

Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (windows.net)

While all of these obligations concern privacy, at least three of them have absolutely no element of publication or dissemination.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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