In 2024, the Illinois General Assembly amended the Illinois Biometric Information Privacy Act (“BIPA”) to clarify that an individual cannot seek recovery for multiple alleged violations of BIPA when those violations concern the same person, defendant entity, and method of collection.
On April 1, 2026, the Seventh Circuit issued its decision in Clay v. Union Pacific Railroad Co., see generally Clay v. Union Pac. R.R. Co., 2026 WL 891902 (7th Cir. Apr. 1, 2026), which dealt with three consolidated appeals addressing the same question: Does the 2024 amendment of BIPA apply retroactively to cases pending at the time when the amendment went into effect? See 740 ILCS 14/20. Writing for a unanimous panel, Chief Judge Brennan reversed the district courts and held that the amendment applies retroactively.
The court began by examining the Supreme Court of Illinois’ 2023 decision in Cothron v. White Castle System, Inc., which held that, for statute of limitations purposes, a BIPA claim accrues each time an entity collects a biometric identifier, even if from the same person. See generally Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), as modified on denial of reh’g (Jul. 18, 2023). The defendant in that case argued that such a rule would raise the specter of “annihilative liability” and estimated its potential exposure for class-wide statutory damages could exceed $17 billion. Recognizing the policy implications, the Supreme Court of Illinois invited the General Assembly to “review these policy concerns and make clear its intent regarding the assessment of damages under the Act.” Clay, 2026 WL 891902, at *2. Thereafter, the General Assembly amended Section 20 to provide that repeated collections or disclosures of the same biometric information from the same person using the same method constitute “a single violation,” and an aggrieved person could file an action to seek “at most, one recovery.” Id. The General Assembly did not include explicit retroactivity language applying this rule to ongoing cases filed before the amendment went into effect.
In Clay, the Seventh Circuit applied Illinois’ retroactivity framework for new or amended laws and concluded that the amendment was a remedial—and therefore procedural—change applicable to ongoing cases. The court noted that Illinois courts have long treated remedial changes—including changes to statutory damages provisions—as procedural. See id. at *3. The court also identified two textual features confirming the amendment’s remedial nature: First, the legislature placed it in Section 20, BIPA’s damages provision, rather than in Section 15, the provision establishing substantive compliance obligations; and second, the amendment’s plain text focuses on limiting a plaintiff’s “recovery,” not on altering BIPA’s proscribed conduct. See id. at *3.
The court also pushed back on the plaintiffs’ argument that Cothron effectively established that each biometric scan constitutes a separate “violation,” such that collapsing thousands of violations into one would be a substantive change. The court clarified that Cothron addressed when claims accrue under Section 15 for statute-of-limitations purposes, not the meaning of “violation” in Section 20’s damages framework. See id. at *5.
Finally, the Seventh Circuit rejected the plaintiffs’ remaining arguments that (1) the remedial-equals-procedural principle was invalidated when Illinois abandoned the “vested rights” theory of retroactivity, (2) reduction in potential damages is necessarily “substantive” because it affects out-of-courtroom behavior, and (3) there is a constitutional impediment to retroactive application. On the last point, the court noted that Illinois plaintiffs have “no vested right to a particular remedy” and that the amendment only potentially decreases a speculative monetary recovery (since BIPA’s statutory damages are discretionary) rather than imposing new obligations on defendants. See id. at *5-6.
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