Damages-Limiting Amendment to BIPA Applies Retroactively

BIPA regulates the collection and transmission of biometric identifiers such as fingerprints, facial scans, hand geometry, and voiceprints. BIPA contains hefty liquidated-damages provisions, up to $5,000 per violation. In 2023, the Illinois Supreme Court held that a new claim accrues under BIPA each time an individual’s biometric information is scanned or transmitted in violation of BIPA. Cothron v. White Castle Sys., Inc., 2023 IL 128004, ¶ 40. As noted by White Castle and its amici at the time, the prospect of adding $5,000 to a running tab each time an employee scanned a fingerprint to clock in for a shift could lead to “annihilative liability” for companies on the wrong side of a BIPA suit. Id. 

The Illinois General Assembly responded by enacting Public Act 103-0769, effective August 2, 2024, which clarified that statutory damages must be assessed on a per-person and per-method basis, not a per-scan or per-transmission basis. However, the absence of an express retroactivity clause left open the question of whether the amendment applied to litigation filed before the effective date of the amendment — were the defendants still on the hook for $5,000 per scan?

To answer this question, the Seventh Circuit consolidated three interlocutory appeals. See generally Clay v. Union Pac. R.R. Co., – F.4th –, No. 25-2185, 2026 WL 891902, at *2 (7th Cir. Apr. 1, 2026). Each plaintiff alleged that his or her employer collected fingerprints or hand geometry to access the employer’s facilities or interact with a biometric time clock. The Seventh Circuit recognized the financial stakes — one of the plaintiffs alleged that his fingerprint scans had been collected 1,500 times such that he alone was entitled to $7.5 million; the putative class action put billions in controversy. Because the Seventh Circuit was interpreting an unanswered question of state law, it had to predict how Illinois courts would rule on the question of retroactivity. 

Illinois law looks first to what the statute’s text says about retroactivity. If the statute is silent, the default rule requires consideration of whether an amendment is procedural or substantive — generally, procedural modifications apply retroactively, whereas substantive changes are prospective. 

The Seventh Circuit found that Illinois courts treat changes to remedial provisions involving statutory or punitive damages as procedural modifications, not substantive. It also found that the recent BIPA amendment was a remedial provision for two reasons: (1) the General Assembly amended the private cause of action provision in BIPA section 20 instead of the liability-defining provisions of section 15, and (2) the plain language of the amendment, including that an “aggrieved person is entitled to, at most, one recovery,” demonstrated a remedial focus. Because the amendment was a remedial change, the Seventh Circuit held that it applied retroactively to cases pending when it was enacted.

This holding significantly clarifies the financial stakes of many pending BIPA cases predating the amendment. As a result, efforts to resolve those cases may now proceed without the specter of astronomical verdicts lurking in the background. Moreover, the decision may have significant implications for both pending and future cases, as the Seventh Circuit emphasized that the amended statute provides the court with discretion to not award statutory damages. 

Despite this welcome relief from the Seventh Circuit, BIPA remains strictly enforced, and the collection of biometric identifiers in any context therefore continues to be an important compliance priority, even if noncompliance may no longer be potentially ruinous.