The Seventh Circuit has been offered a chance to weigh in on whether a recent amendment to the Illinois Biometric Information Privacy Act should apply retroactively.  Effective August 2, 2024 the Illinois Legislature amended BIPA so that multiple infringements of the Act - which prohibits the unauthorized collection, use or transmission of biometric identifiers or information - are a single violation as long as those violations occurred through one method.  For example, if an employee scanned his thumbprint to clock in and out multiple times each workday, all of those scans potentially constitute one violation giving rise to one claim for damages, rather than thousands of individual violations, each with their own damages.  The amendment addressed the Illinois Supreme Court's Cothron v. White Castle decision, which held each individual scan was a violation and invited the legislature to clarify its intent regarding how damages should be awarded.

Now that legislature has spoken, the fight turns to whether the amendment should be applied retroactively.  Judge Alexakis in the Northern District of Illinois, recently determined that the amendment was substantive, not procedural, and therefore does not apply retroactively.  Clay v. Union Pacific Railroad, 24 CV 4194. Although courts that have addressed the issue “overwhelmingly have held that BIPA does not apply retroactively,” and despite remaining confident in her decision, Judge Alexakis acknowledged there remains substantial grounds for a difference of opinion on whether the change should apply retroactively. She therefore certified the issue for interlocutory appeal.  While the Seventh Circuit has the discretion to reject the case, it seems likely they will take the opportunity to decide the issue.