About

7th Circuit Rules 2024 BIPA Damages Amendment Applies Retroactively to Pending Cases

Published
Score
14

Why it matters

On April 1, 2026, the U.S. Court of Appeals for the Seventh Circuit unanimously held that Illinois' August 2024 amendment to the Biometric Information Privacy Act applies retroactively to all pending cases. In Clay v. Union Pacific Railroad Co. (consolidated with Willis and Gregg), the court classified the amendment as procedural rather than substantive, allowing it to govern cases filed before its effective date. The amendment fundamentally restructures BIPA damages by capping recovery at $1,000 per violation for negligent violations and $5,000 for intentional ones—eliminating the "per-scan" theory that previously allowed plaintiffs to multiply damages across each biometric collection or transmission event.

The ruling reverses three district court decisions that had rejected retroactive application. Chief Judge Michael Brennan's opinion applied Illinois retroactivity doctrine, which presumes procedural changes apply to pending cases unless the legislature specifies otherwise. The court rejected due process challenges, reasoning that the damages cap does not alter BIPA's core liability standards—notice, consent, and data handling requirements remain unchanged under Section 15. The amendment was enacted in direct response to the Illinois Supreme Court's 2023 Cothron decision, which held that claims accrue separately for each scan or transmission, creating exposure to billion-dollar liabilities for employers using biometric systems.

Attorneys handling BIPA litigation in the Seventh Circuit—covering Illinois, Indiana, and Wisconsin—must immediately reassess pending cases under the new damages framework. The ruling reshapes class certification strategies and amount-in-controversy calculations for federal jurisdiction. However, the decision binds only federal courts; state courts in Illinois may reach different conclusions on retroactivity. The core BIPA duties requiring notice and consent remain enforceable, preserving some exposure for defendants, but the elimination of per-scan multipliers substantially reduces settlement leverage for plaintiffs' counsel.

mail Subscribe to Privacy email updates

Primary sources. No fluff. Straight to your inbox.

Also on LawSnap