On April 1, 2026, the Seventh Circuit in Clay v. Union Pacific Railroad Company held that an amendment to the Illinois Biometric Information Privacy Act (BIPA), limiting damages to a per-person basis, applies retroactively to cases pending when the amendment was enacted in 2024. This decision limits the potential statutory damages plaintiffs may obtain for pending BIPA cases.

In 2024, Illinois enacted an amendment to BIPA which states that an entity that, in more than one instance, obtains the same biometric identifier or biometric information from the same person using the same method of collection in violation of BIPA’s notice and consent requirement has committed a single violation. The amendment overturned an Illinois Supreme Court decision in Cothron v. White Castle Sys., Inc. that had held that “a claim accrues under [BIPA] with every scan or transmission of biometric identifiers or biometric information without prior informed consent.” Thus, as a result of the 2024 amendment, each aggrieved person is entitled to, at most, one recovery for a single collective violation (as opposed to recovering for every instance an identifier was collected from the same aggrieved person).

Several lower courts held that the amendment only applied prospectively and in Clay, the Seventh Circuit consolidated three interlocutory appeals posing the question of whether the amendment should apply prospectively or retroactively. If the statute is silent on its temporal reach, Illinois courts consider whether the amendment is a substantive or procedural change to the law. Illinois law has affirmed the “general principle that remedial changes are procedural,” not substantive changes and apply retroactively. Clay v. Union Pac. R.R. Co., 2026 WL 891902, at *6 (7th Cir. Apr. 1, 2026). The Seventh Circuit determined that the BIPA amendment was a remedial change and therefore applied to pending cases because it amended the liquidated damages section of the law and “the plain language of the amendment focuses on remedies.” Id. at *4. Consequently, the amendment “simply changed the statutory award of damages available to plaintiffs, cabining the discretion of trial court judges when they fashion the remedy.” Id. at *6. Had the court gone the other way, it likely would have subjected businesses with pending cases to significantly higher penalties.