BIPA Section 20 (2024) Damages Amendment Applies Retroactively as a Remedial/Procedural Change

I. Introduction

In Reginald Clay v. Union Pacific Railroad Company (consolidated with Brandon Willis v. Universal Intermodal Services, Inc., et al. and John Gregg v. Central Transport LLC), the Seventh Circuit addressed a question that has become central to Illinois Biometric Information Privacy Act (“BIPA”) litigation: whether the Illinois General Assembly’s 2024 amendment to Section 20—limiting certain repeated biometric collections or transmissions to “a single violation” and thus “at most, one recovery”—applies retroactively to cases already pending when the amendment took effect on August 2, 2024.

The plaintiffs alleged recurring fingerprint/hand-geometry collections through workplace access systems and “biometric time clock” devices, asserting that each scan (and each transmission) could trigger a new statutory-damages event. The defendants argued that the 2024 amendment caps recovery on a per-person basis for repeated collections/disseminations using the same method.

The stakes were substantial: the court highlighted how per-scan damages could produce millions for an individual plaintiff (e.g., Clay’s ~1,500 scans) and potentially billions in a putative class action. The district courts certified the retroactivity issue for interlocutory review under 28 U.S.C. § 1292(b).

II. Summary of the Opinion

The Seventh Circuit (Brennan, C.J.) held that the 2024 amendment to BIPA Section 20 applies retroactively to cases pending at enactment. The court reasoned that, under Illinois retroactivity doctrine, the amendment is remedial—and Illinois treats remedial changes as procedural for retroactivity purposes. Because the legislature did not specify the amendment’s temporal reach, Illinois’ default rules (particularly the savings clause in 5 ILCS 70/4) govern, resulting in application to ongoing proceedings.

The court reversed the district courts’ contrary rulings and remanded, noting that the damages framework could also affect issues like subject-matter jurisdiction.

III. Analysis

A. Precedents Cited

The opinion’s retroactivity holding rests on a structured chain of Illinois and federal retroactivity authorities, as well as prior BIPA accrual decisions that set the stage for the legislature’s intervention.

1. BIPA context and accrual backdrop

  • Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146 (7th Cir. 2020): Cited for BIPA’s commercial and technological context and the statute’s purpose in responding to increased biometric-data use.
  • Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020) (quoting Rosenbach v. Six Flags Ent. Corp., 129 N.E.3d 1197 (Ill. 2019)): Used to frame BIPA as protecting individuals’ “right to privacy in and control over their biometric identifiers and biometric information.”
  • Bridges v. Blackstone, Inc., 66 F.4th 687 (7th Cir. 2023): Cited to underscore BIPA as “a font of high-stakes litigation.”
  • Cothron v. White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021): The Seventh Circuit certified to the Supreme Court of Illinois the key accrual question under BIPA Sections 15(b) and 15(d).
  • Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023): The Illinois Supreme Court held that claims accrue “with every scan or transmission,” while warning of potential “annihilative liability” and explicitly inviting legislative clarification regarding damages assessment.
  • Cothron v. White Castle Sys., Inc., 79 F.4th 894 (7th Cir. 2023): Cited to confirm the certified-answer’s application in the federal case (limitations posture), reinforcing that Cothron’s core holding addressed accrual/timeliness.
  • Svoboda v. Amazon.com Inc., 168 F.4th 956 (7th Cir. 2026): Cited for the proposition that district courts have discretion regarding class-wide damages—supporting the opinion’s characterization of BIPA damages as discretionary and equity-inflected in class actions.

2. Illinois retroactivity framework

  • Commonwealth Edison Co. v. Will Cnty. Collector, 749 N.E.2d 964 (Ill. 2001): Anchor case describing Illinois’ “modified” retroactivity approach and the role of statutory defaults.
  • Landgraf v. USI Film Products, 511 U.S. 244 (1994): The federal baseline; Illinois borrows its structure but, per later Illinois cases, generally does not proceed beyond the first step because Illinois has codified default temporal rules.
  • Perry v. Dept. of Fin. and Prof. Reg., 106 N.E.3d 1016 (Ill. 2018): Central to the opinion. It explains that when an amendment is silent on temporal reach, courts apply 5 ILCS 70/4 and decide whether the change is substantive or procedural; it also recognizes the “special” treatment of remedial changes.
  • Caveny v. Bower, 797 N.E.2d 596 (Ill. 2003): Cited for the presumption that the legislature legislates against the background of Section 4 of the Statute on Statutes.
  • People v. Atkins, 838 N.E.2d 943 (Ill. 2005): Cited for the caution that the substantive/procedural line can be unclear and that “procedural ramifications of a substantive amendment do not make the amendment procedural.”

3. Remedial-changes doctrine

  • Dardeen v. Heartland Manor, Inc., 710 N.E.2d 827 (Ill. 1999): Applied retroactively a repeal of statutory treble damages; invoked for the long-settled notion that, prior to judgment, plaintiffs have no vested right to a particular remedy.
  • People v. Glisson, 782 N.E.2d 251 (Ill. 2002): Quoted for the proposition that “courts can apply retroactively statutory changes to procedural or remedial provisions, whether they are outright repeals or amendments.”
  • People ex rel. Madigan v. J.T. Einoder, Inc., 28 N.E.3d 758 (Ill. 2015): Used to draw a boundary: creating a brand-new remedy or new type of liability is substantive; also cited because it reaffirmed Dardeen’s remedial/procedural principle even under the modern framework.
  • Orlicki v. McCarthy, 122 N.E.2d 513 (Ill. 1954): Historical support collecting cases for the principle that changes affecting the remedy are procedural and may apply retroactively.
  • Midwest Grain Prods. of Ill., Inc. v. Produc-tization, Inc., 228 F.3d 784 (7th Cir. 2000): Seventh Circuit recognition that remedy-only changes are procedural.

4. Erie, prediction, and interpretive posture

  • Webster v. CDI Ind., LLC, 917 F.3d 574 (7th Cir. 2019): Cited for de novo review of the state-law question.
  • Montana v. Wyoming, 563 U.S. 368 (2011) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940)): Cited to emphasize state supreme courts as the final arbiters of state law.
  • Giovannelli v. Walmart Inc., 164 F.4th 1052 (7th Cir. 2026) (citing Smith v. RecordQuest, LLC, 989 F.3d 513 (7th Cir. 2021)): Cited for the “Erie prediction” methodology when no state supreme court decision squarely controls the precise question presented.

5. Constitutional/vested-rights references

  • First of Am. Trust Co. v. Armstead, 664 N.E.2d 36 (Ill. 1996): Cited for the concept of “vested rights” as protected by Illinois due process, even though Illinois no longer uses vested rights as the retroactivity test.
  • Martin v. Goodrich Corp., 268 N.E.3d 170 (Ill. 2025): Cited alongside Armstead to describe due-process-protected interests.
  • People v. Stewart, 215 N.E.3d 752 (Ill. 2022): Mentioned in a footnote for the distinct doctrine that some amendments merely “clarify” the law and thus may apply retroactively on that basis (an issue the court found unnecessary to decide).
  • Thomas v. Guardsmark, LLC, 487 F.3d 531 (7th Cir. 2007): Cited for a behavioral framing of substantive rules as those directing conduct outside the courtroom, which plaintiffs invoked to argue the amendment is substantive.

B. Legal Reasoning

1. Identifying the controlling retroactivity test under Illinois law

The court first determined the governing retroactivity methodology: Illinois follows a modified version of Landgraf v. USI Film Products via Commonwealth Edison Co. v. Will Cnty. Collector, but—critically—Illinois courts typically resolve retroactivity at the “step one” inquiry: whether the legislature expressly specified the amendment’s temporal reach (Perry v. Dept. of Fin. and Prof. Reg.).

Because the 2024 amendment contains no express retroactivity clause, Illinois’ default statutory directive controls: Section 4 of the Statute on Statutes (5 ILCS 70/4), which channels the analysis into the substantive-versus-procedural classification. Pending “proceedings” are to conform “so far as practicable” to the law in force at the time of the proceeding.

2. The pivotal classification: remedial amendments are treated as procedural

Under Perry v. Dept. of Fin. and Prof. Reg., substantive amendments prescribe rights and obligations or determine when a cause of action arises; procedural amendments govern the steps by which rights are judicially enforced.

The court then deployed a key Illinois-specific doctrine: remedial changes (particularly to damages provisions) are treated as procedural and thus apply to pending cases. The court derived this from a line of Illinois Supreme Court decisions including Dardeen v. Heartland Manor, Inc., People v. Glisson, People ex rel. Madigan v. J.T. Einoder, Inc., and reiterated in Perry v. Dept. of Fin. and Prof. Reg..

The court also acknowledged boundaries recognized in People ex rel. Madigan v. J.T. Einoder, Inc.: an amendment that creates a brand-new remedy or new liability can be substantive. That boundary mattered because it framed the key inquiry as whether the BIPA amendment merely adjusts available recovery or instead changes the underlying prohibited conduct or the existence of liability.

3. Why the BIPA Section 20 amendment is remedial (and thus retroactive)

The court emphasized two textual/structural features showing the amendment is about remedies, not conduct:

  1. Placement and statutory architecture: The General Assembly amended Section 20 (damages/recovery), not Section 15 (substantive duties regarding collection, retention, and dissemination), and it left Section 15 unchanged.
  2. Remedy-focused language: The added subsections state that repeated collection/transmission of the same biometric identifier/information by the same method constitutes a single violation “for which the aggrieved person is entitled to, at most, one recovery under this Section.” The court treated “entitled to … one recovery” as quintessential remedial phrasing.

4. Rejecting the “Cothron makes each scan a ‘violation’” framing

Plaintiffs argued the amendment is substantive because it collapses thousands of “violations” into one. The court responded on two levels:

  • Statutory-text rebuttal: Section 15 does not use the word “violation.” The term appears in Section 20, which creates the cause of action and measures damages “for each violation.” Therefore, the meaning of “violation” is anchored to the remedy section the legislature amended.
  • Scope-of-holding rebuttal: Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), answered an accrual/statute-of-limitations question—when claims accrue under Section 15(b) and (d)—not how damages must be aggregated under Section 20. The Seventh Circuit stressed that Cothron did not purport to interpret Section 20’s “each violation” language.

In a notable interpretive move, the court read Cothron’s discussion of potentially ruinous damages as supporting the conclusion that Section 20 needed legislative clarification—and that the clarification is remedial. The court further reasoned that Cothron’s observations about permissive “may” language suggest damages are discretionary, which makes it harder to argue plaintiffs had any fixed entitlement to per-scan statutory sums.

5. Addressing plaintiffs’ additional objections

  • “Remedial-as-procedural is tied to the old vested-rights framework”: The court acknowledged Illinois’ doctrinal shift away from a vested-rights test in Commonwealth Edison Co. v. Will Cnty. Collector, but concluded the remedial/procedural principle remains intact, citing People v. Glisson and Perry v. Dept. of Fin. and Prof. Reg. (which did not depend on Dardeen). The court also treated People ex rel. Madigan v. J.T. Einoder, Inc. as reaffirming Dardeen’s remedial principle even under the modern framework.
  • “The amendment changes incentives and therefore is substantive”: Relying on Thomas v. Guardsmark, LLC, plaintiffs argued that changing damages changes behavior outside court. The Seventh Circuit replied that this would incorrectly convert most damages-regime amendments into “substantive” changes, contrary to Illinois Supreme Court precedent treating damages adjustments as procedural/remedial.
  • Constitutional concerns (due process / vested rights): The court held there was no constitutional barrier because Illinois law has long recognized no vested right in a particular remedy prior to judgment (Dardeen v. Heartland Manor, Inc.), and because the amendment decreases rather than increases monetary exposure. The court also emphasized that, given Cothron’s reading of “may,” BIPA damages appear discretionary, further weakening any due-process claim of an entitlement to a higher award.

C. Impact

1. Immediate effect on pending BIPA litigation

The holding applies the Section 20 amendment to cases pending as of August 2, 2024, sharply reducing potential statutory damages in many recurring-scan scenarios. For claims alleging repeated collections/transmissions of the same biometric data from the same person using the same collection method, plaintiffs are limited to “at most, one recovery” for Section 15(b) and similarly for Section 15(d).

2. Recalibration of class-action exposure and settlement leverage

By constraining per-scan aggregation into per-person-per-method recovery, the decision undercuts the “annihilative liability” narrative that drove enormous settlement pressure post-Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023). Defendants in pending class cases gain strong grounds to revisit damages modeling and to challenge certification arguments premised on massive aggregated statutory amounts.

3. Procedural ripple effects: subject-matter jurisdiction

The panel’s remand note about subject-matter jurisdiction is significant: lower damages may affect the amount in controversy (in CAFA or traditional diversity contexts) and may invite renewed scrutiny of removal and federal jurisdiction positions, especially in cases that relied on high per-scan damages to clear thresholds.

4. Future interpretive disputes that remain open

  • The decision resolves retroactivity for the 2024 Section 20 amendment, but leaves room for litigation over the amendment’s scope—e.g., what counts as the “same method of collection,” and how to treat changes in vendors, devices, software, templates, or data flows.
  • The court did not decide whether the amendment “clarified” rather than changed the law (cf. People v. Stewart), leaving that alternative retroactivity theory undeveloped.
  • Because the amendment speaks to Section 15(b) and 15(d), claims pleaded under other provisions (e.g., Section 15(a)) may still present distinct damages and accrual questions.

IV. Complex Concepts Simplified

  • Retroactivity: Whether a new law applies to events or cases that arose before the law was enacted. Here, the question was whether the 2024 BIPA damages limitation applies to lawsuits already filed.
  • Substantive vs. procedural (Illinois retroactivity): Substantive changes alter the underlying rights/duties (what conduct is unlawful or when a claim arises). Procedural changes affect how rights are enforced in court. Illinois generally applies procedural changes to pending cases.
  • Remedial change: A change to the available remedy—often damages—without changing the underlying prohibited conduct. Illinois treats many remedial changes as procedural for retroactivity purposes.
  • Erie prediction: When a federal court applying state law must predict how the state’s highest court would rule if it has not already decided the precise issue.
  • Claim accrual vs. damages measurement: Accrual answers “when does the clock start for filing suit?” Damages measurement answers “how much can you recover if you win?” The court treated Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), as mainly about accrual, not how to count “violations” for damages.

V. Conclusion

The Seventh Circuit’s consolidated decision establishes an important operational rule for BIPA litigation in federal courts applying Illinois law: the 2024 amendment to Section 20 limiting repeated biometric collections/transmissions (by the same method and involving the same person) to “at most, one recovery” is a remedial change treated as procedural under Illinois retroactivity doctrine, and therefore applies to cases pending at enactment.

Practically, the ruling reduces the prospect of per-scan statutory-damages multiplication in ongoing cases, reshapes class-action exposure, and signals that Illinois’ remedial/procedural retroactivity principles remain a powerful tool for determining the temporal reach of damages-related amendments—even in a high-stakes statutory-privacy regime like BIPA.