Seventh Circuit Grapples with BIPA Amendment.

On February 12, the Seventh Circuit Court of Appeals heard arguments in three consolidated cases that present the issue of whether recent amendments to Illinois' Biometric Information Privacy Act will be applied retroactively. The Illinois Supreme Court set the process in motion when it ruled in Cothron v. White Castle that any time an entity captured a person's biometric information, it triggered a separate claim for damages under the statute. Cognizant of the enormous damage awards that could ensue, the Court encouraged the Illinois legislature to amend the statute. The legislature accepted that invitation and in August 2024 the Act was amended to provide that if an entity collects, captures or disseminates the same biometric information from the same person using the same method, it “has committed a single violation.”

While this change curtailed runaway damages for claims filed after its effective date, the amendment was silent as to whether it would apply retroactively - no small issue as numerous BIPA cases were pending when the amendment passed. The Seventh Circuit therefore faced that question Thursday.

At issue is whether the revision is considered substantive or procedural. Statutory amendments in Illinois only apply prospectively unless they are procedural rather than substantive, or the legislature expressly states they are retroactive. The BIPA amendment was silent regarding retroactivity provision, so the courts have been left to grapple with substantive/procedural distinction. In the cases before the Seventh Circuit, the District Courts held the change retroactive. The plaintiffs contend the amendment's language shows the revision was substantive as it converted what was previously numerous claims into one. Defendants on the other hand argue the context clearly demonstrates that the legislature merely accepted the Supreme Court's invitation to address the damage issue, making the change procedural.

The Seventh Circuit can decide the issue or refer the question to the Illinois Supreme Court as it did in the Cothron case.

"It sounds like then billions of dollars of consequences turn on how we label the change, right?" - Judge Hamilton Read more at: https://www.law360.com/illinois/articles/2441214?nl_pk=c9772de4-d2d2-47f4-bc4b-42a724907df8&utm_source=newsletter&utm_medium=email&utm_campaign=illinois&utm_content=2026-02-13&read_more=1&nlsidx=0&nlaidx=2?copied=1

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