One and Done: Seventh Circuit Holds BIPA Amendments Apply Retroactively to Preclude Per-Scan Damages

Quick Hits

• The Seventh Circuit held that the BIPA clarifying amendments, which limit plaintiffs to “at most, one recovery” per person per method of collection, apply retroactively to pending cases.
• The court found “the Illinois law of retroactivity is well established, allowing us to predict how the Supreme Court of Illinois would rule with a high degree of confidence.”
• Because the amendment addresses only the statutory damages available to plaintiffs—not BIPA’s substantive standards of liability—it constitutes a remedial, procedural change under Illinois law.
• The court emphasized that “Illinois law has affirmed this general principle for many decades.”

Background

In 2023, in Cothron v. White Castle System, Inc., the Supreme Court of Illinois held that a new BIPA claim accrues “with every scan or transmission” of biometric information. Recognizing that this per-scan accrual theory might produce “annihilative liability” for businesses, the court invited the legislature to “review these policy concerns and make clear its intent regarding the assessment of damages under the Act.”

In response, the Illinois General Assembly amended Section 20 of BIPA, effective August 2, 2024. The amendment provides that a private entity that collects biometric information “in more than one instance … from the same person using the same method of collection” has committed “a single violation” for which “the aggrieved person is entitled to, at most, one recovery under this Section.”

The Court’s Analysis

The Seventh Circuit consolidated three interlocutory appeals presenting the common question of whether the Section 20 amendment applies retroactively. The financial stakes were substantial—one plaintiff alone stood to recover $7.5 million based on approximately 1,500 fingerprint scans, and a putative class action raised the specter of billions of dollars in damages.

Applying the Landgraf framework as modified by the Supreme Court of Illinois, the court concluded that the amendment “applies retroactively to cases pending at the time it was enacted” because “it impacts only the statutory damages available to plaintiffs––it does not change BIPA’s substantive standards of liability.”

The court identified two textual features demonstrating the amendment is a remedial provision:

• First, “the legislature located it in Section 20, not Section 15. It did not change Section 15 at all, even though that was the portion of BIPA interpreted in Cothron and the one setting substantive standards for liability under the Act. Instead, it amended the portion of the statute governing liquidated damages.”
• Second, “the plain language of the amendment focuses on remedies. It indicates that an ‘aggrieved person is entitled to, at most, one recovery under this Section.’” (Emphasis in the original.)

“In tandem, these points highlight that the amendment did not alter when ‘a cause of action … has arisen,’ nor did it change ‘the rights, duties, and obligations of persons to one another’—the hallmarks of substantive changes.” The court concluded that the amendment “simply cabined the recovery available against defendants who violate the Act” and that “[t]he best reading of BIPA Section 20 is that it covers only remedies.”

Practical Impact

Clay is a landmark ruling for employers defending BIPA claims in federal court. By confirming that the 2024 amendments apply to pending litigation, the decision dramatically reduces damages exposure in cases that were filed before the amendments took effect. Employers facing per-scan damages theories in pending BIPA cases may want to evaluate whether this ruling provides a basis for dispositive motions or significantly enhanced settlement posture.

Ogletree Deakins’ Chicago office and Cybersecurity and Privacy Practice Group will continue to monitor developments in BIPA litigation and will post updates on the Class Action, Cybersecurity and Privacy, and Illinois blogs as additional information becomes available.

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