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Thomas Hams, Samantha Manfredini Look
In April 2026, the U.S. Court of Appeals for the Seventh Circuit clarified how retroactivity applies to damages in the Illinois Biometric Information Privacy Act (BIPA), holding that the limitation on the stacking of damages applies to claims filed before August 2, 2024.
Readers will recall that the August 2024 amendment already prohibited per-scan, per-claimant damages of $1,000 or $5,000 on claims that were filed post enactment. Before the 2024 amendment and Seventh Circuit decree, the Illinois Supreme Court found that a new BIPA claim, subject to a new or subsequent damage allocation, accrued with every scan or disclosure—the total of which could bankrupt a company considering the volume of instances and individuals impacted. Now, these go forward with retroactive limitations on recoveries which greatly reduce the potential liability of companies who run afoul of BIPA disclosure requirements.
In Clay v. Union Pacific Railroad Co., the Court heard interlocutory appeals of three combined cases. The facts of the cases were similar. Claimants alleged that they were required to use biometric devices without receiving the required disclosures and giving the required consent and that their information was then improperly disclosed.
The appeal centered on two issues. First, whether the 2024 BIPA amendment was a clarification or substantive change to the statute. Reviewing this question, the Court determined that the amendment did not intend to make changes to the substantive requirements of the BIPA statute, instead it focused on determining available damages, making it clarificatory in nature.
The second issue considered whether the amendment applied retroactively to all pending cases. The Court utilized the test for retroactivity under Illinois law which says that if an amendment is procedural, not substantive, it applies to all cases pending at the time of enactment. Supporting its determination, the Court reflected that not applying retroactivity would be in misalignment with the legislative intent by being unduly punitive, as the claimants alleged that they were due $7.5 million in statutory damages for their individual claims and “billions of dollars in damages” for the putative class.
With a clear answer on the total universe of available BIPA damages recoverable, companies using biometrics can continue working towards compliance without the worry of catastrophic liability.
If you have any questions or are interested in obtaining coverage, please contact your Aon broker.
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