On Nov. 13, 2024, in Gregg v. Central Transport LLC, the U.S. District Court for the Northern District of Illinois confirmed that Public Act 103-0769 (previously Senate Bill 2979), which amends Illinois’ Biometric Information Privacy Act (BIPA), has retroactive effect. This decision favorably addresses a critical issue for Illinois employers defending BIPA claims in which the alleged violations pre-date the August 2024 amendment. However, at least one Illinois court has rejected the retroactivity argument, and the issue may ultimately need to be resolved by an appellate court.
The Amendment
The amendment, which the Illinois Legislature enacted on Aug. 2, 2024, and made effective immediately, marked the first modification to BIPA after years of efforts to amend the statute. It clarified the amount of damages BIPA plaintiffs may recover for the same violation. As the Gregg court acknowledged, the amendment was a direct response to the Illinois Supreme Court’s invitation in Cothron v. White Castle System, Inc. for the legislature to clarify its intent regarding the assessment of damages. In Cothron, the court held that each instance of a company collecting biometric data without consent counted as a separate violation under BIPA, allowing for a separate damage award for each violation.
Prior to the amendment, aggrieved individuals could recover up to $5,000 or actual damages for each violation, leading some plaintiffs to pursue a “per scan” theory, whereby they sought payment for each scan using their biometric information. This would empower plaintiffs to seek high damages from companies, resulting in potentially ruinous damage awards.
The amendment ended the “per swipe” damages theory, at least for violations occurring after its enactment. It provided that an aggrieved individual may only recover for one statutory violation under Sections 15(b) and 15(d) of BIPA, allowing complainants to recover up to $5,000 per section, or $10,000 total for violations of both 15(b) and 15(d). The changed provisions read:
(b) For purposes of subsection (b) of Section 15, a private entity that, in more than one instance, collects, captures, purchases, receives through trade, or otherwise obtains the same biometric identifier or biometric information from the same person using the same method of collection in violation of subsection (b) of Section 15 has committed a single violation of subsection (b) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section.
(c) For purposes of subsection (d) of Section 15, a private entity that, in more than one instance, discloses, rediscloses, or otherwise disseminates the same biometric identifier or biometric information from the same person to the same recipient using the same method of collection in violation of subsection (d) of Section 15 has committed a single violation of subsection (d) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section regardless of the number of times the private entity disclosed, redisclosed, or otherwise disseminated the same biometric identifier or biometric information of the same person to the same recipient.
The amendment did not address Section 15(a) violations because section 15(a) did not involve potentially recurring conduct, as opposed to 15(b) and 15(d). In other words, a defendant violates section 15(a) once or not at all.
Gregg Holds That Amendment Applies Retroactively
The Gregg case addressed whether the amendment’s limitation on damages applied only to violations occurring after its effective date of Aug. 2, 2024. The court found that because the “legislature intended merely to interpret or clarify the original act,” it is “as if the amendment had been in place all along.” Therefore, ongoing BIPA litigation may be subject to the amendment even if the alleged violations arose prior to its enactment.
The Gregg court noted that there is a presumption in Illinois law that statutory amendments are intended to change only existing law (i.e., apply prospectively). The court held that the presumption does not apply when “circumstances surrounding the amendment” indicate that the legislature meant to interpret or clarify the original act. This may occur, for example, when “a conflict or ambiguity existed prior to the amendment” or “the amendment is consistent with a reasonable interpretation of the prior enactment and its legislative history” — both of which the Gregg court found to be true of the amendment. The amendment was adopted soon after the Illinois Supreme Court expressly invited the legislature to clarify how damages should be determined under the act, highlighting the existence of an ambiguity. The court also noted that limiting damages would be “consistent with the BIPA’s pre-amendment text.”
A Split Within the Northern District
Another Northern District of Illinois court has reached the opposite conclusion. In Schwartz v. Supply Network, Inc., the court found that the amendment did not apply to claims in which the alleged conduct occurred before its enactment. The Schwartz court agreed that the presumption that legislative amendments only affect existing law can be overcome. However, it found that “public statements by a handful of individual lawmakers” are insufficient to warrant retroactive application, that nothing in the amendment’s text indicated that it merely clarified BIPA and that the Supreme Court’s decision in Cothron also confirmed that BIPA’s original enactment was not ambiguous (at least with respect to per swipe damages).
What Employers Should Expect Now
If trial court opinions continue to diverge on this issue, we can expect to see another BIPA issue rise to the appellate level and possibly be decided by the Illinois Supreme Court. In the meantime, although the plaintiff’s bar will continue to oppose retroactive application of the amendment, the Gregg decision now gives Illinois employers a foothold to argue that the amendment mitigates BIPA exposure regardless of when alleged BIPA violations occurred.
