BIPA Section 20 (2024) Damages Amendment Is Retroactive: Per-Person (Not Per-Scan) Recovery as a Remedial, Procedural Change

I. Introduction

In a consolidated set of interlocutory appeals—Reginald Clay v. Union Pacific Railroad Company, Brandon Willis v. Universal Intermodal Services, Inc., et al., and John Gregg v. Central Transport LLC—the Seventh Circuit confronted a question with outsized financial consequences for Illinois Biometric Information Privacy Act (BIPA) litigation: whether Illinois’s 2024 amendment to BIPA’s remedies provision, Section 20, applies retroactively to cases already pending when the amendment became law.

The dispute arose against the backdrop of Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), where the Supreme Court of Illinois held that claims under BIPA Section 15(b) and 15(d) accrue “with every scan or transmission.” That accrual rule, coupled with Section 20’s “for each violation” liquidated damages language, prompted concerns about “annihilative liability.” Responding directly to those concerns, the Illinois General Assembly amended Section 20 (effective August 2, 2024) to clarify that repeated collections or disseminations of the same biometric data from the same person using the same method constitute a “single violation” for which the person is entitled to, “at most, one recovery.”

The central issue was thus temporal: did this damages-limiting clarification govern only future cases (prospective application), or also constrain damages in already-filed suits (retroactive application)?

II. Summary of the Opinion

Chief Judge Brennan, writing for the panel, held that the 2024 amendment to BIPA Section 20 applies retroactively to cases pending at enactment. The court reasoned that Illinois retroactivity doctrine treats “remedial” amendments as “procedural,” and procedural changes apply to pending proceedings under Section 4 of the Illinois Statute on Statutes, 5 ILCS 70/4.

Because the amendment was placed in Section 20 (remedies) rather than Section 15 (substantive duties) and repeatedly speaks in terms of entitlement to “recovery,” the Seventh Circuit concluded it alters only the available remedy (how much may be recovered), not the underlying conduct that is unlawful or when claims accrue. The district courts’ contrary rulings were reversed, and the cases were remanded.

III. Analysis

A. Precedents Cited

1. BIPA’s purpose and baseline interpretive context

  • Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146 (7th Cir. 2020) — Cited for BIPA’s enactment purpose: responding to increased commercial use of biometric data, framing the statute as privacy-protective and commercially consequential.
  • 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)) — Reinforced BIPA’s articulation of an individual’s “right to privacy in and control over” biometric identifiers and information. This contextualizes why statutory damages matter: BIPA is structured to incentivize compliance even absent traditional pecuniary harm.
  • Bridges v. Blackstone, Inc., 66 F.4th 687 (7th Cir. 2023) — Noted as a marker of BIPA’s high-stakes litigation environment.

2. The “per scan” accrual rule—and the legislature’s response

  • Cothron v. White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021) — The Seventh Circuit certified to the Supreme Court of Illinois how claims accrue under BIPA Sections 15(b) and (d), spotlighting the potential scale of liability if each scan/transmission creates a new claim.
  • Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023) — The Supreme Court of Illinois held claims accrue “with every scan or transmission,” acknowledged concern about “annihilative liability,” and invited legislative clarification on damages assessment. This decision is the opinion’s legislative catalyst, but the Seventh Circuit emphasized it interpreted Section 15 accrual, not Section 20’s meaning of “violation.”
  • Cothron v. White Castle Sys., Inc., 79 F.4th 894 (7th Cir. 2023) — After the Illinois Supreme Court answered the certified question, the Seventh Circuit applied that answer in affirming timeliness, underscoring that Cothron was fundamentally a limitations/accrual case.

3. Erie and the obligation to predict state law

  • Webster v. CDI Ind., LLC, 917 F.3d 574 (7th Cir. 2019) — Provided the de novo standard for reviewing the certified state-law question.
  • Montana v. Wyoming, 563 U.S. 368 (2011) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940)) — Reaffirmed that a state’s highest court is the final arbiter 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)) — Explained the “Erie prediction” methodology used when no state supreme court case squarely controls.

4. Illinois retroactivity doctrine (the core analytic engine)

  • Commonwealth Edison Co. v. Will Cnty. Collector, 749 N.E.2d 964 (Ill. 2001) — Adopted Illinois’s modified approach to retroactivity, borrowing from but not fully applying the federal Landgraf framework.
  • Landgraf v. USI Film Products, 511 U.S. 244 (1994) — Provided the federal two-step retroactivity test; Illinois uses a modified version.
  • Perry v. Dept. of Fin. and Prof. Reg., 106 N.E.3d 1016 (Ill. 2018) — Central to the opinion: Illinois generally does not proceed beyond the “express temporal reach” inquiry; if silent, courts apply 5 ILCS 70/4 and ask whether the change is substantive or procedural. The opinion also drew directly from Perry’s definitions of “substantive” versus “procedural” and its discussion of constitutional limits.
  • Caveny v. Bower, 797 N.E.2d 596 (Ill. 2003) — Cited for the presumption that the legislature is aware of Section 4’s background rule.
  • People v. Atkins, 838 N.E.2d 943 (Ill. 2005) — Warned that procedural effects of a substantive change do not make it procedural, urging careful classification.

5. “Remedial changes are procedural” line of authority

  • Dardeen v. Heartland Manor, Inc., 710 N.E.2d 827 (Ill. 1999) — Applied retroactively the repeal of a statutory treble damages remedy, reasoning plaintiffs have no vested right (pre-judgment) to a particular remedy.
  • People v. Glisson, 782 N.E.2d 251 (Ill. 2002) — Stated broadly that courts can apply retroactively changes to “procedural or remedial” provisions.
  • People ex rel. Madigan v. J.T. Einoder, Inc., 28 N.E.3d 758 (Ill. 2015) — Reaffirmed Dardeen’s proposition that amendments affecting remedies are procedural, while distinguishing substantive amendments that create a new remedy or liability.
  • Orlicki v. McCarthy, 122 N.E.2d 513 (Ill. 1954) — Collected older cases reflecting the longstanding rule that changes affecting only the remedy apply retroactively.
  • Midwest Grain Prods. of Ill., Inc. v. Productization, Inc., 228 F.3d 784 (7th Cir. 2000) — Seventh Circuit recognition that a rule affecting only remedy is procedural.

6. Additional authorities used to rebut plaintiffs’ counterarguments

  • Schwartz v. Supply Network, Inc., No. 1:23-cv-14319, 2024 WL 4871408 (N.D. Ill. 2024) — Quoted for the opposing view that the “injured once vs. injured a thousand times” question is substantive; the Seventh Circuit rejected this framing based on statutory structure and Cothron’s limited holding.
  • Thomas v. Guardsmark, LLC, 487 F.3d 531 (7th Cir. 2007) — Provided a general description of substantive rules as behavior-directing; the Seventh Circuit held this did not overcome Illinois’s characterization of remedial changes as procedural.
  • Svoboda v. Amazon.com Inc., 168 F.4th 956 (7th Cir. 2026) — Cited for the proposition that district courts possess discretion in awarding damages on a class-wide basis, consistent with Cothron’s commentary about discretion and equity in class actions.
  • First of Am. Trust Co. v. Armstead, 664 N.E.2d 36 (Ill. 1996) and Martin v. Goodrich Corp., 268 N.E.3d 170 (Ill. 2025) — Used in the constitutional “vested rights” discussion; even post-reform, Illinois due process still protects certain vested interests, but not (typically) an unadjudicated remedy.
  • People v. Stewart, 215 N.E.3d 752 (Ill. 2022) — Noted in a footnote for the “clarifying amendment” doctrine; the panel did not rely on it, because the case was resolved under the ordinary substantive/procedural framework.

B. Legal Reasoning

1. Illinois’s “modified Landgraf” framework and the centrality of 5 ILCS 70/4

Because the amendment contained no express retroactivity clause, the court applied the Illinois default rule in 5 ILCS 70/4, under which pending proceedings generally “conform, so far as practicable, to the laws in force at the time of such proceeding.” Under Perry v. Dept. of Fin. and Prof. Reg., this drives the key classification question: is the change substantive or procedural?

2. Why the amendment is “remedial,” and thus “procedural,” under Illinois law

The court’s classification turned on statutory text, placement, and function:

  • Placement in Section 20 (remedies), not Section 15 (duties). The legislature did not alter Section 15’s obligations or the “per scan” accrual rule from Cothron. Instead, it amended Section 20, the portion of BIPA that creates a right of action and specifies liquidated damages “for each violation.”
  • Remedy-centered language. The operative limitation is that the plaintiff is “entitled to, at most, one recovery under this Section” for repeated same-person, same-biometric, same-method violations of Section 15(b) or 15(d). The panel read this as cabining recovery, not redefining prohibited conduct.

3. The opinion’s key interpretive move: separating “claim accrual” (Section 15) from “violations”/recovery (Section 20)

Plaintiffs’ strongest argument was semantic: the amendment’s “single violation” language allegedly converts thousands of “violations” into one, which sounds substantive. The Seventh Circuit rejected that framing by emphasizing:

  • Section 15 does not use the word “violation.” The term appears in Section 20, the remedies section.
  • Cothron decided accrual for limitations purposes, not Section 20’s damages counting rule. The panel treated Cothron’s occasional interchange of “claim” and “violation” as non-dispositive shorthand in an accrual context, not a holding about remedies arithmetic.
  • Cothron itself invited legislative clarification on damages assessment. The Illinois Supreme Court’s expressed uncertainty about the damages interaction and its invitation to the General Assembly supported (rather than undermined) the Seventh Circuit’s conclusion that Section 20 was the proper site for clarification.

4. Discretionary damages as further support that the change is remedial

The panel also leaned on Cothron’s discussion of Section 20’s permissive “may,” suggesting damages are discretionary rather than mandatory. If damages are discretionary, the argument that plaintiffs possessed a fixed, pre-amendment entitlement to per-scan liquidated damages becomes weaker. On this reading, the amendment tightens the permissible ceiling (“at most, one recovery”) rather than stripping an accrued, guaranteed monetary right.

5. Rejecting counterarguments

  • “Remedial ≠ procedural” after Illinois abandoned “vested rights.” The court held that post-Commonwealth Edison Co. v. Will Cnty. Collector cases (notably People v. Glisson and Perry v. Dept. of Fin. and Prof. Reg.) continue to treat remedial changes as procedurally retroactive, and People ex rel. Madigan v. J.T. Einoder, Inc. reaffirmed Dardeen’s core proposition even under the modified test.
  • “This affects behavior outside the courtroom, so it’s substantive.” The panel reasoned that virtually all damages regimes affect behavior, but Illinois still classifies remedy-only amendments as procedural.
  • State constitutional concerns. Applying the amendment retroactively did not violate Illinois due process because (per Dardeen) plaintiffs have no vested right to a particular remedy before judgment, and defendants were not deprived of vested rights by a liability-decreasing change.

C. Impact

1. Immediate consequences for pending BIPA cases

The practical effect is a dramatic compression of statutory damages exposure in many Section 15(b) and 15(d) cases: plaintiffs alleging thousands of scans/transmissions are “entitled to, at most, one recovery” for repeated same-method conduct involving the same person and data. This directly mitigates the “annihilative liability” risk highlighted in Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), especially in class actions where per-scan aggregation previously threatened multi-billion-dollar exposure.

2. Litigation strategy: merits, certification, settlement posture

  • Settlement valuations. The decision recalibrates the ceiling on statutory damages in many pending matters, likely lowering settlement leverage tied to scan counts.
  • Class certification dynamics. While certification may still be sought for common statutory violations, the “per scan” damages multiplier is curtailed for 15(b) and 15(d), potentially changing superiority/predominance arguments and manageability narratives.
  • Focus may shift to other sections. The opinion addressed the 2024 amendment’s specific coverage of Section 15(b) and Section 15(d). Plaintiffs may emphasize other theories (e.g., different “methods of collection,” different data events, or other BIPA provisions) where the “single recovery” cap does not apply in the same way or presents factual disputes.

3. Federal jurisdiction and pleading implications

The panel flagged that remand may require reevaluating “subject matter jurisdiction,” an important downstream effect: if damages are capped far lower than originally alleged, some cases filed or removed under diversity jurisdiction may fall below the amount-in-controversy threshold.

4. Precedential significance beyond BIPA

The decision is also a notable Erie/retroactivity roadmap: it demonstrates how federal courts in the Seventh Circuit will apply Illinois’s substantive-versus-procedural framework, particularly the “remedial is procedural” principle, to newly enacted damages limitations. That logic may influence retroactivity disputes involving other Illinois statutes with liquidated or statutory damages schemes.

IV. Complex Concepts Simplified

  • Retroactivity: Whether a new law applies to events or lawsuits that already exist when the law is enacted. Here: does the 2024 damages rule govern lawsuits already pending?
  • Substantive vs. procedural (Illinois): “Substantive” changes alter the underlying rights/duties (what conduct is unlawful, when a cause of action arises). “Procedural” changes alter the machinery of enforcing rights (including, in Illinois, many “remedial” changes—how remedies/damages are calculated).
  • Remedial change: A change that affects the remedy (e.g., available damages) rather than defining unlawful conduct. Illinois often treats these as procedural and thus applicable to pending cases.
  • Claim accrual vs. damages counting: Accrual answers “when does the clock start for filing suit?” (limitations). Damages counting answers “how many recoveries can you get if you win?” The court held Cothron answered the former, not the latter.
  • Erie prediction: When state law is unsettled, a federal court predicts how the state supreme court would rule, guided by existing state doctrines.
  • Vested right (as used here): A constitutionally protected interest that the legislature cannot take away retroactively. Illinois precedent generally says there is no vested right to a particular remedy before judgment.

V. Conclusion

The Seventh Circuit’s consolidated decision establishes that Illinois’s 2024 BIPA Section 20 amendment—limiting plaintiffs to “at most, one recovery” for repeated same-person, same-biometric, same-method violations of Section 15(b) or 15(d)—applies retroactively to pending cases. The court reached this result by applying Illinois retroactivity doctrine: because the amendment is remedial (damages-focused) rather than substantive (conduct-defining), it is classified as procedural and therefore governs ongoing proceedings under 5 ILCS 70/4.

Doctrinally, the opinion reinforces the separation between (1) Cothron’s per-scan accrual rule for Section 15 and (2) the legislature’s authority to define the remedies calculus in Section 20. Practically, it sharply reduces the damages multiplier that drove “annihilative liability” concerns in BIPA litigation and will reshape settlement, class strategy, and even jurisdictional assessments in cases already in the pipeline.