{"id":2866,"date":"2026-04-03T08:22:57","date_gmt":"2026-04-03T12:22:57","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=2866"},"modified":"2026-04-03T08:22:58","modified_gmt":"2026-04-03T12:22:58","slug":"seventh-circuit-holds-bipa-amendment-applies-retroactively-reversing-three-illinois-federal-court-decisions","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2026\/04\/03\/seventh-circuit-holds-bipa-amendment-applies-retroactively-reversing-three-illinois-federal-court-decisions\/","title":{"rendered":"Seventh Circuit Holds BIPA Amendment Applies Retroactively, Reversing Three Illinois Federal Court Decisions"},"content":{"rendered":"
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By Gerald L. Maatman, Jr., Hayley Ryan, and Tyler Zmick<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/em><\/strong> On April 1, 2026, in Clay et al. v. Union Pacific Railroad Co. et al., Nos. 25-2185 et al., 2026 WL 891902 (7th Cir. Apr. 1, 2026), \u00a0a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed<\/a> three federal district court decisions and held that the August 2, 2024, amendment to Section 20 of the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d) applies retroactively to cases pending at the time of enactment. The Seventh Circuit concluded that the amendment is remedial because it governs damages rather than liability and, therefore, applies retroactively under Illinois law.<\/em><\/p>\n\n\n\n

This decision is a watershed win for BIPA defendants<\/em> in the class action space<\/em>. It significantly curtails potential exposure by confirming that plaintiffs may recover, at most, $5,000 in statutory damages for intentional violations or $1,000 for negligent violations per person, rather than on a per-scan basis that previously threatened astronomical liability. <\/em><\/em><\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

As the Seventh Circuit observed, \u201cBIPA has become a font of high-stakes litigation.\u201d Id<\/em>. at *1.  In response to the Illinois Supreme Court\u2019s decision in Cothron v. White Castle Sys., Inc<\/em>., 216 N.E.3d 918, 926 (Ill. 2023), which held that BIPA claims accrue \u201cwith every scan or transmission\u201d of biometric information, the Illinois General Assembly amended Section 20 of the BIPA in August 2024 to clarify the scope of recoverable damages. The amendment provides, in relevant part, that a private entity that collects or discloses \u201cthe same biometric identifier or biometric information from the same person using the same method of collection\u2026has committed a single violation\u2026for which the aggrieved person is entitled to, at most, one recovery<\/em><\/strong> under this Section.\u201d 740 ILCS 14\/20(b) (emphasis added).<\/p>\n\n\n\n

The consolidated appeals arose from three cases asserting typical BIPA theories. Plaintiff Reginald Clay alleged that Union Pacific violated Section 15(b) by requiring repeated fingerprint scans to access the company\u2019s facilities. Plaintiffs John Gregg and Brandon Willis alleged that their employers used biometric timekeeping systems in violation of Sections 15(a), (b), and (d).<\/p>\n\n\n\n

The Seventh Circuit emphasized the extraordinary financial stakes. Plaintiff Clay alleged approximately 1,500 fingerprint scans \u2013 translating to $7.5 million in potential damages for a single plaintiff if damages were calculated on a per-scan basis.  2026 WL 891902 at *2.  In contrast, the putative class claims in Plaintiff Willis\u2019 case exposed the defendant to billions of dollars in potential liability. Id.  <\/em>The three interlocutory appeals posed the same legal question: whether the 2024 amendment to BIPA Section 20 applies retroactively to limit such exposure.<\/p>\n\n\n\n

The <\/strong>Seventh Circuit<\/strong>\u2019s Decision<\/strong><\/p>\n\n\n\n

The Seventh Circuit answered that question with a definitive \u201cyes.\u201d It held that the amendment to Section 20 applies retroactively to pending cases. Id. <\/em>at *3. <\/p>\n\n\n\n

Applying Illinois retroactivity principles, the Seventh Circuit explained that where the legislature is silent on the temporal reach of the amendment, as here, courts look to Section 4 of the Illinois Statute on Statutes, which, in turn, directs the court to determine whether the amendment is substantive or procedural. Id<\/em>. (citing Perry v. Dep’t of Fin. & Pro. Regul.<\/em>, 106 N.E.3d 1016, 1026-27 (Ill. 2018)). <\/p>\n\n\n\n

The Seventh Circuit concluded that the amendment is remedial and, therefore, procedural, because it governs damages rather than underlying liability. Id<\/em>. at *4.  Central to this determination was the statutory text and structure. The legislature amended Section 20, which addresses liquidated damages, rather than Section 15, which sets forth the substantive requirements governing the collection and disclosure of biometric data.  The Seventh Circuit emphasized that the amendment does not alter \u201cthe rights, duties, and obligations of persons to one another,\u201d which are the defining characteristics of substantive changes. Id<\/em>. (citing Perry<\/em>, 106 N.E.3d at 1034). Instead, the amendment focuses exclusively on the remedies available once a violation has been established.<\/p>\n\n\n\n

The appellees argued that the Illinois Supreme Court\u2019s decision in Cothron<\/em> established that each biometric scan constitutes a separate \u201cviolation,\u201d and that the amendment therefore effected a substantive change by transforming thousands of violations into a single recoverable event, thus \u201cterminating millions of dollars of liability.\u201d Id.<\/em> at *4. The Seventh Circuit rejected this position, reasoning that it both misinterprets the statute and overstates Cothron<\/em>\u2019s holding. Id<\/em>. at *5. The Court clarified that Cothron<\/em> addressed only when claims accrue under Section 15 and did not consider the meaning of \u201cviolation\u201d for purposes of damages under Section 20. Id<\/em>.  According to the Seventh Circuit, that distinction was dispositive. Id<\/em>.<\/p>\n\n\n\n

Ultimately, the Seventh Circuit determined that the amendment does not alter the number of violations or the injuries alleged by plaintiffs but instead limits the damages that may be awarded for those violations.  As the Seventh Circuit explained, the amendment \u201csimply changed the statutory award of damages available to plaintiffs, cabining the discretion of trial court judges when they fashion the remedy.\u201d Id<\/em>. at *6.  Accordingly, the Court held that the amendment is remedial in nature and applies retroactively. Id<\/em>. at *7. It therefore reversed the district court decisions that had concluded otherwise. Id<\/em>.<\/p>\n\n\n\n

Implications for Companies<\/strong><\/p>\n\n\n\n

Clay<\/em> is one of the most consequential BIPA defense rulings in years. It materially reshapes the litigation landscape in several key respects:<\/p>\n\n\n\n