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On April 1, 2026, the Seventh Circuit issued its precedential opinion concerning three consolidated interlocutory appeals in Reginald Clay v. Union Pacific Railroad Co., Nos. 25-2185, 25-2761, 25-2762, holding that the 2024 legislative amendment to Section 20 of the Illinois Biometric Information Privacy Act (“BIPA”) applies retroactively to all cases pending at the time of enactment. The amendment clarified that multiple biometric collections from the same person using the same method constitute only a single violation for damages purposes, eliminating the annihilative, “per-scan” statutory damage theories espoused by some members of the plaintiffs' bar.
BIPA regulates the collection, retention, and disclosure of biometric identifiers and information, with the statute authorizing private actions and providing for statutory damages “for each violation” of $1,000 per negligent violation or $5,000 per intentional or reckless violation. In Cothron v. White Castle System, Inc., the Illinois Supreme Court held that a separate statutory violation accrues each time biometric identifier/information is collected or transmitted without compliant consent, even if the same biometric identifier/information is repeatedly collected from the same person. The Cothron court acknowledged that this reading could lead to “potentially excessive” or “annihilative” damages, and, in an uncommon action, suggested that the Illinois Legislature address the issue.
In response, the General Assembly amended Section 20 in 2024, providing that where biometric identifiers or information are collected from the same person using the same method, a private entity has committed only a single violation for purposes of damages under Sections 15(b) and 15(d) of BIPA. The BIPA Amendment took effect on August 2, 2024; however, it did not contain an express retroactivity clause, creating a hotly litigated issue in numerous pending BIPA cases where plaintiffs sought to “stack” damages, for example, for each time an individual used the alleged biometric technology over the course of the five year statute of limitations, trying to create astounding potential liability in the hundreds of millions or billions of dollars, despite the fact that no actual harm occurred.
The plaintiffs in the consolidated cases, Reginald Clay, John Gregg, and Brandon Willis, each alleged that their respective employers violated BIPA by collecting their biometric identifiers/information without informed consent. Plaintiff Clay, for example, claimed that Union Pacific Railroad collected his fingerprint scans approximately 1,500 times, potentially entitling him to $7.5 million in statutory damages if the amendment were to not apply retroactively. Plaintiff Willis seeks to represent a class in excess of 2,800, which could have resulted in a claim for billions of dollars in damages.
The Seventh Circuit consolidated the three interlocutory appeals and addressed the single legal issue of whether the 2024 amendment to Section 20 of BIPA applies retroactively to cases that were already pending when it was enacted. Noting that the “financial stakes of this case are high,” the Seventh Circuit answered that question in the affirmative.
The Court, applying long-standing Illinois law, determined that Section 20 does not alter the elements of a BIPA claim, the prohibited conduct, or available causes of action. Instead, the amendment merely clarifies how damages are calculated when the same biometric identifier or information is collected repeatedly from the same person. Because the amendment affects the remedy rather than the right, the Court determined that the amendment is clarifying under Illinois law.
The plaintiffs raised several unsuccessful arguments against the retroactive application of the amendment to Section 20. First, they argued that remedial changes should not be construed as "procedural" amendments. They based this argument on the fact that older cases connected the rule to the "vested rights" framework of retroactivity, which the Supreme Court of Illinois has since rejected. Specifically, they disputed reliance on the case of Dardeen v. Heartland Manor, Inc., which applied a remedial statute retroactively. In Dardeen, the Supreme Court of Illinois held that an amendment repealing a treble damages provision should be applied retroactively because a plaintiff has no vested right to a particular method of procedure or remedy prior to judgment.
The plaintiffs also argued that the amendment should be considered substantive because it "alters the scope of liability and the legal consequences of past conduct." They contended that the amendment removed the financial incentive for companies to comply with BIPA by continuously flouting it. The Court rejected this argument, noting that it was leading “in the wrong direction.”
Finally, the plaintiffs raised concerns about potential state constitutional issues. They noted that the retroactivity analysis is not the end of the matter, as the "temporal reach" of the statute must be given effect unless it would be "constitutionally prohibited" to do so. However, the Court found that the amendment to Section 20 of BIPA raised no constitutional concerns, as it decreased rather than increased the monetary penalties imposed on private entities, and thus did not deprive defendants of any vested rights.
The Seventh Circuit reversed and remanded each of the three consolidated appeals, holding that the amendment applies retroactively and “impacts only the statutory damages available to plaintiffs,” without changing “BIPA's substantive standards of liability.”
This decision marks a major win for Illinois companies, caping statutory damages at one recovery per person per method of collection under Sections 15(b) and (d). While BIPA claims remain viable, the risk of “annihilative” liability from repeated scans has been eliminated.
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