Last week, the Seventh Circuit gave a significant victory to defendants facing claims under the Illinois Biometric Privacy Act (“BIPA”), holding that a 2024 amendment limiting damages available to a prevailing plaintiff applies retroactively to cases pending at the time of the amendment. The court’s decision in Clay v. Union Pac. R.R. Co., 2026 WL 891902 (7th Cir. April 1, 2026), reins in what otherwise could have been potentially crippling damages awards for the unlawful collection of biometric data. In addition to limiting the damages available under BIPA by applying the amendment retroactively, the Seventh Circuit’s analysis reinforces defense arguments that liquidated damages under BIPA are discretionary.
BIPA grants a private right of action to a person whose biometric information is collected without providing informed written consent. As the use of biometric data has grown, BIPA has spawned thousands of putative class action cases over the past decade. Plaintiffs in these cases have sought between $1,000 and $5,000 for each “violation” of BIPA and aggregated those claims across numerous putative class members. In Cothron v. White Castle System, Inc., 2023 IL 128004, the Illinois Supreme Court ruled that BIPA claims accrue anew with every collection of biometric data without consent, even if the same biometric information was collected by the same defendant in the same way. The Court recognized that this ruling could create “annihilative liability” for companies facing BIPA claims, prompting the Court to invite the Illinois legislature to clarify whether such astronomical awards were consistent with legislative intent. The Illinois General Assembly later accepted the Court’s invitation, amending Section 20 of BIPA to clarify that multiple collections of biometric information from the same person by the same method constitute, at most, one violation for purposes of computing damages.
In Clay, the parties disputed whether the 2024 BIPA amendment applied to pending cases. After the district court concluded that the amendment only applied prospectively, the Seventh Circuit consolidated three cases for interlocutory review in order to resolve the issue.
Applying Illinois retroactivity precedent, the Seventh Circuit ruled that the 2024 BIPA amendment was “procedural” as opposed to “substantive” because the amendment merely altered the parties’ remedies as opposed to changing substantive rights. Because the amendment was procedural, it applied retroactively. The Seventh Circuit’s analysis relied heavily on dicta from Cothron, which suggested that damages under BIPA are likely discretionary because Section 20 specifies what liquidated damages a prevailing plaintiff “may” recover. The Seventh Circuit reasoned that, because BIPA’s damages are discretionary, plaintiffs had no guarantee of any specific recovery in the first place. Accordingly, the 2024 amendment to BIPA did not interfere with substantive rights, which allowed the amendment to be applied in pending cases filed before the 2024 amendment.
Clay is not necessarily the final word on the retroactivity of the 2024 BIPA amendment. As the final arbiter of state law, the Illinois Supreme Court could come to a different conclusion; however, the Court would have to reject the Seventh Circuit’s reasoning in Clay, which is well-supported. For now, at least, companies facing BIPA claims can breathe a sigh of relief.
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