The U.S. Court of Appeals for the Seventh Circuit has ruled unanimously that Illinois’s 2024 amendment to the Biometric Information Privacy Act applies retroactively to cases pending when the amendment took effect, sharply limiting the per-scan damages theory that had generated billions of dollars in potential employer exposure across the state.
Writing for the panel in the consolidated appeal Clay v. Union Pacific Railroad Co., No. 25-2185, Chief Judge Brennan held that Illinois’s 2024 BIPA amendment is remedial rather than substantive because it modified the statute’s damages provision, Section 20, without altering the underlying liability standards in Section 15. Under Illinois’s longstanding rule that remedial statutory changes apply retroactively, the court applied the amendment to the three district court cases before it. The court described the amendment as having “simply changed the statutory award of damages available to plaintiffs, cabining the discretion of trial court judges when they fashion the remedy.”
The practical stakes are substantial. Lead plaintiff Reginald Clay, a Union Pacific employee, had faced up to $7.5 million in potential statutory damages under the per-scan theory established by the Illinois Supreme Court’s 2023 decision in Cothron v. White Castle System Inc., which held that claims accrue with each individual biometric scan or transmission. Under the retroactive amendment, repeated collections from the same person using the same method count as a single violation for purposes of statutory recovery under Section 20. The court also rejected constitutional due process objections, finding that the amendment decreases rather than increases monetary penalties.
The ruling consolidates three appeals from the Northern District of Illinois: Clay v. Union Pacific Railroad Co. (No. 1:24-cv-04194), Willis v. Universal Intermodal Services Inc. (No. 1:21-cv-01716), and Gregg v. Central Transport LLC (No. 1:24-cv-01925). All three district courts had refused retroactive application, treating the amendment as substantive. The Seventh Circuit reversed all three.
The Illinois General Assembly passed SB 2979 in May 2024, and Governor J.B. Pritzker signed it into law on August 2, 2024, specifically to address the exposure created by Cothron, which had opened the door to per-scan calculations threatening aggregate class action exposure in the billions for employers using fingerprint timeclocks and other biometric authentication systems. Biometric timekeeping litigation involving hand-scanning time clocks has continued to advance in Illinois courts in the period since.
The ruling is expected to reshape hundreds of pending BIPA class actions across Illinois federal and state courts. Employers that collected biometric data repeatedly, whether through daily timeclock scans or other high-frequency authentication systems, now face a per-person limit on statutory recovery under the amended Section 20 rather than a multiplied per-scan figure, substantially reducing aggregate exposure in mass litigation.
Sources: U.S. Court of Appeals for the Seventh Circuit, Smith, Gambrell & Russell LLP, Duane Morris Class Action Defense Blog, Paul Hastings
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By Cass Kennedy
