Retroactive Application of BIPA Section 20’s Per-Person Damages Cap as a Remedial (Procedural) Amendment

I. Introduction

This consolidated interlocutory decision from the U.S. Court of Appeals for the Seventh Circuit addresses a single, high-stakes question of Illinois law: whether Illinois’s 2024 amendment to Section 20 of the Biometric Information Privacy Act (“BIPA”) applies retroactively to cases that were already pending when the amendment took effect.

The three underlying cases involve alleged BIPA violations arising from routine workplace or facility-access biometric practices:

  • Reginald Clay v. Union Pacific Railroad Company (fingerprint scans for facility entry/exit; alleged Section 15(b) violations).
  • Brandon Willis v. Universal Intermodal Services, Inc., et al. (biometric time clock; alleged Sections 15(a), (b), and (d) violations; filed as a putative class action).
  • John Gregg v. Central Transport LLC (biometric time clock; alleged Sections 15(a), (b), and (d) violations).

The financial implications are central. Under the Illinois Supreme Court’s reading of claim accrual in Cothron v. White Castle Sys., Inc., repeated scans or transmissions could multiply statutory damages dramatically. The 2024 amendment was enacted to address that concern by “confirming that damages should be evaluated on a per-person basis,” limiting recovery to (at most) one recovery per person for repeated collections/disclosures using the same method.

Key Issue

Whether the 2024 amendment to BIPA Section 20—adding subsections 20(b) and 20(c)—is a remedial/procedural change (and thus applies to pending cases under Illinois retroactivity principles) or a substantive change (and thus applies only prospectively, absent explicit legislative direction).

II. Summary of the Opinion

The Seventh Circuit held that the 2024 amendment to BIPA Section 20 applies retroactively to cases pending at the time of enactment. The court reasoned that, under Illinois’s retroactivity framework, amendments that are procedural or remedial apply to pending proceedings unless constitutionally prohibited.

The court characterized the amendment as remedial because it governs the available recovery (damages/remedy) rather than the substantive standards of liability in BIPA Section 15. It therefore reversed the district courts’ contrary rulings and remanded for further proceedings, noting that damages recalculation may also affect issues such as subject-matter jurisdiction.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. The BIPA Landscape and the Trigger for Legislative Action

  • Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146 (7th Cir. 2020): Used to situate BIPA as Illinois’s legislative response to increasing commercial use of biometric data.
  • 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)): Cited for BIPA’s core normative commitment—individual “right to privacy in and control over” biometric identifiers.
  • Bridges v. Blackstone, Inc., 66 F.4th 687 (7th Cir. 2023): Cited as an indicator that BIPA litigation has become “high-stakes.”

2. The Claim-Accrual Backdrop: Why Per-Scan Exposure Became the Flashpoint

  • Cothron v. White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021): The Seventh Circuit certified to the Illinois Supreme Court how claims accrue under BIPA Sections 15(b) and 15(d), recognizing potentially “crippling” liability under a per-scan accrual theory.
  • 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 flagging concern about “annihilative liability” and explicitly inviting legislative clarification regarding damages assessment under Section 20.
  • Cothron v. White Castle Sys., Inc., 79 F.4th 894 (7th Cir. 2023): On return from certification, the Seventh Circuit affirmed the claim was not time-barred, reinforcing that Cothron was fundamentally a limitations/accrual case.

These Cothron decisions function as the “before” picture: expansive accrual, coupled with statutory damages “for each violation,” created a plausible path to enormous awards. The Seventh Circuit in the present opinion treats the 2024 amendment as the legislature’s direct response to the Illinois Supreme Court’s request to clarify damages under Section 20.

3. The Illinois Retroactivity Framework: Modified Landgraf and Section 4

  • Landgraf v. USI Film Products, 511 U.S. 244 (1994): The federal two-step retroactivity test that Illinois references but modifies.
  • Commonwealth Edison Co. v. Will Cnty. Collector, 749 N.E.2d 964 (Ill. 2001): Illinois’s “modified” approach; the decision is the pivot for modern Illinois retroactivity doctrine.
  • Perry v. Dept. of Fin. and Prof. Reg., 106 N.E.3d 1016 (Ill. 2018): Central authority explaining that Illinois does not proceed beyond the initial inquiry into legislative temporal intent; if silent, courts apply Section 4 of the Statute on Statutes and distinguish substantive from procedural changes.
  • Caveny v. Bower, 797 N.E.2d 596 (Ill. 2003): Cited for the premise that the legislature is presumed to know the background rule (Section 4).

The Seventh Circuit’s retroactivity analysis is an exercise in faithful application of Perry and Section 4 (5 ILCS 70/4), rather than a free-standing federal retroactivity inquiry.

4. Defining “Procedural,” “Substantive,” and “Remedial” Under Illinois Law

  • People v. Atkins, 838 N.E.2d 943 (Ill. 2005): Warns that the line between substantive and procedural can be unclear; procedural effects of a substantive change do not make it procedural.
  • Dardeen v. Heartland Manor, Inc., 710 N.E.2d 827 (Ill. 1999): Applied repeal of a statutory treble-damages provision retroactively; invoked for the long-settled principle that plaintiffs have no vested right to a particular remedy prior to judgment.
  • People v. Glisson, 782 N.E.2d 251 (Ill. 2002): Explicitly states that statutory changes to “procedural or remedial provisions” can apply retroactively.
  • People ex rel. Madigan v. J.T. Einoder, Inc., 28 N.E.3d 758 (Ill. 2015): Recognizes remedial/procedural retroactivity but limits it where an amendment creates a brand-new remedy/liability (which would be substantive).
  • Orlicki v. McCarthy, 122 N.E.2d 513 (Ill. 1954): Historical foundation—changes affecting only remedy are treated as procedural and applied retroactively.
  • Midwest Grain Prods. of Ill., Inc. v. Productization, Inc., 228 F.3d 784 (7th Cir. 2000): Seventh Circuit alignment with Illinois’s remedy/procedure distinction.

5. Erie and the Seventh Circuit’s Role

  • Webster v. CDI Ind., LLC, 917 F.3d 574 (7th Cir. 2019): Standard of review—de novo on state-law determinations in this posture.
  • Montana v. Wyoming, 563 U.S. 368 (2011) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940)): State supreme courts are 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)): “Erie prediction” framework when no state supreme court decision squarely controls.

The court frames its task as predicting how the Illinois Supreme Court would treat the 2024 amendment’s temporal reach, emphasizing that Illinois retroactivity rules are “well established.”

6. Damages Discretion and Class-Action Context

  • Svoboda v. Amazon.com Inc., 168 F.4th 956 (7th Cir. 2026): Cited to emphasize district-court discretion in awarding damages on a class-wide basis, consistent with the Illinois Supreme Court’s observations in Cothron.
  • Schwartz v. Supply Network, Inc., No. 1:23-cv-14319, 2024 WL 4871408 (N.D. Ill. 2024): A representative district-court view that the “injured once vs. injured a thousand times” framing is substantive; the Seventh Circuit rejects that framing.

7. Constitutional “Vested Rights” and Due Process

  • First of Am. Trust Co. v. Armstead, 664 N.E.2d 36 (Ill. 1996): Uses “vested rights” in the due-process sense—interests protected from legislative interference.
  • Martin v. Goodrich Corp., 268 N.E.3d 170 (Ill. 2025): Confirms continuing use of “vested rights” language in constitutional analysis even after doctrinal shifts.

8. Clarifying vs. Changing the Law (Not Reached)

  • People v. Stewart, 215 N.E.3d 752 (Ill. 2022): Recognizes that clarifying amendments can sometimes apply retroactively; the Seventh Circuit notes the doctrine but declines to rely on it.

B. Legal Reasoning

1. Step One: The Amendment Is Silent on Temporal Reach

The court begins where Illinois law requires. The 2024 amendment (Pub. Act. 103-0769) took effect immediately upon signing (August 2, 2024) but contains no express retroactivity clause. Under Perry and Commonwealth Edison, Illinois courts then consult the default rule in Section 4 of the Statute on Statutes (5 ILCS 70/4): pending proceedings should conform “so far as practicable” to the law in force at the time of the proceeding.

2. Step Two: Classify the Amendment as Substantive or Procedural (Remedial)

The controlling classification question is whether the amendment changes:

  • Substantive: the rights/duties/obligations between persons, or when a cause of action arises; or
  • Procedural: the rules for enforcing rights, including (critically in Illinois) many remedial changes affecting damages.

3. Why the Court Deems the BIPA Amendment “Remedial”

The opinion identifies multiple textual and structural signals that the legislature altered the remedy, not the liability standard:

  • Placement in Section 20 (damages), not Section 15 (conduct rules). The legislature left Section 15 unchanged (the provisions regulating collection and dissemination conduct), and left Section 20(a)’s cause-of-action language intact.
  • Remedial language: “entitled to, at most, one recovery under this Section.” New Sections 20(b) and 20(c) focus on recovery, not on redefining prohibited conduct.
  • Conceptual separation: claim accrual vs. damages “violation.” The court stresses that Cothron resolved when claims accrue under Section 15 for limitations purposes; it did not interpret what counts as a “violation” for damages multiplication under Section 20.

4. Rebutting the “Single Violation” Substantive-Change Argument

Plaintiffs emphasized the amendment’s “single violation” phrasing to argue it transforms thousands of violations into one, thus changing substantive rights. The Seventh Circuit rejects that by focusing on statutory architecture and what Cothron actually decided:

  • Section 15 does not use “violation.” The term appears in Section 20, the remedial section establishing a right of action and damages “for each violation.”
  • Cothron was an accrual/statute-of-limitations case. Even if “violation” and “claim” were used loosely in Cothron, the Illinois Supreme Court did not purport to interpret Section 20’s damages mechanics.
  • Cothron itself flags Section 20 ambiguity and invites legislative clarification. That invitation frames the amendment as a policy/damages clarification rather than a rewriting of substantive conduct duties.

5. Damages Discretion and “At Most” as Further Evidence of a Remedy-Focused Change

The court draws support from Cothron’s discussion that damages appear discretionary (statute says a prevailing party “may recover”) and that trial courts—especially in equity-inflected class actions—may fashion awards that deter without destroying businesses. The “at most” language in the amendment is read as consistent with discretionary, cabined remedial authority.

6. Addressing Plaintiffs’ Additional Arguments

  • “Remedial-as-procedural is outdated after Commonwealth Edison.” The court responds that post-2001 Illinois cases (notably Glisson and Perry) continue to affirm retroactive application of procedural/remedial provisions, and J.T. Einoder reaffirmed Dardeen’s remedial/procedural proposition while applying the modern framework.
  • “It alters behavior outside the courtroom, so it’s substantive.” The court notes that virtually all damages-rule changes influence incentives; accepting this argument would collapse Illinois’s longstanding rule that changes to damages regimes can be procedural/remedial. The court follows the Illinois Supreme Court’s approach.
  • Constitutional concerns (due process / vested rights). The court holds there is no constitutional bar because plaintiffs have no vested right to a particular remedy prior to judgment (citing Dardeen), and because the amendment decreases penalties, it does not deprive defendants of vested rights.

C. Impact

1. Immediate Effect on Pending BIPA Cases

The holding applies the per-person (or per-method, per-person) damages limitation to cases already filed before August 2, 2024. This directly reduces exposure in cases built on repeated scans (e.g., daily timeclock use, frequent facility access) and undercuts settlement leverage tied to per-scan damages multiplication.

2. Class Actions and “Annihilative Liability”

The decision materially lowers the ceiling of aggregate statutory damages in class actions premised on repeated collections/transmissions “using the same method,” addressing the “annihilative liability” concern expressed in Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023). This may affect:

  • class certification dynamics (predominance/superiority arguments tied to damages magnitude);
  • defense strategy (less pressure to settle solely to avoid catastrophic exposure); and
  • judicial management of BIPA dockets, as damages calculations simplify in many repeated-scan scenarios.

3. Litigation Framing: Accrual Still Matters, But Damages Multiplication May Not

The opinion preserves Cothron’s per-scan accrual rule for limitations purposes while decoupling it from per-scan damages. Plaintiffs may still rely on per-scan accrual to argue timeliness, but—at least for same-person, same-method scenarios—damages may be limited to one recovery under Section 20(b)/(c).

4. Jurisdictional Consequences

The court flags that reduced damages may require district courts to reevaluate “other aspects,” explicitly including subject-matter jurisdiction. In practice, lowering the damages amount could affect:

  • amount-in-controversy disputes (especially in individual cases); and
  • class action amount calculations where jurisdictional thresholds or removal theories depend on aggregated damages projections.

IV. Complex Concepts Simplified

  • Interlocutory appeal (28 U.S.C. § 1292(b)): An appeal taken before the case ends, permitted when a controlling legal question could materially advance the litigation.
  • Erie prediction: When a federal court applies state law but the state supreme court has not directly decided the exact issue, the federal court predicts how that court would rule.
  • Retroactivity: Whether a new statute/amendment applies to events or cases that began before the new law took effect.
  • Substantive vs. procedural (Illinois): Substantive changes alter what conduct is unlawful or when rights arise; procedural changes alter how courts enforce rights. Illinois often treats changes to remedies/damages as procedural (“remedial”).
  • Liquidated/statutory damages: Preset amounts (here, $1,000 for negligent and $5,000 for intentional/reckless violations) a plaintiff may recover without proving actual monetary loss, if statutory conditions are met.
  • “Per-scan accrual” vs. “per-person recovery”: Accrual answers how often a claim arises (relevant to limitations). Recovery answers how damages are counted/awarded. The opinion holds these can diverge under the amended Section 20.

V. Conclusion

The Seventh Circuit’s central contribution is a clear Erie-based statement of Illinois retroactivity law as applied to BIPA’s 2024 damages amendment: because the amendment is remedial—targeting the scope of recovery in Section 20 rather than the standards of liability in Section 15—it is treated as procedural under Illinois doctrine and therefore applies to pending cases.

Doctrinally, the opinion reinforces three practical takeaways:

  • Cothron controls accrual under Section 15, but does not freeze the meaning of “violation” for Section 20 damages purposes.
  • Illinois treats many damages/remedy adjustments as retroactive, absent constitutional prohibition, even when they significantly lower exposure.
  • BIPA exposure in repeated-scan cases materially contracts for same-person, same-method scenarios—reshaping settlement pressure, class action valuation, and potentially jurisdictional analyses on remand.