Takeaways

• Conflicting court rulings regarding the retroactivity of the BIPA Amendment create significant legal ambiguity for businesses facing pending lawsuits.
• It is crucial for businesses to stay informed about ongoing BIPA litigation developments, as outcomes could have substantial financial implications.

While enacted in 2008, the Illinois Biometric Information Privacy Act (“BIPA”) did not emerge as a significant source of litigation until nearly 10 years later. From 2015 to 2023, there was nearly a 7,000% increase in BIPA claims. Although this snowball effect can be partially attributed to the rapid evolution of biometric technologies, a series of Plaintiff-friendly decisions also spurred BIPA filings. With recent developments on the legislative front and in the courtroom, has BIPA litigation finally reached its peak?

The Illinois Supreme Court’s 2023 decision in Cothron v. White Castle held that each biometric scan of an individual accrues as a separate violation of BIPA. (The upshot being that each scan could potentially count towards racking up statutory damages). The Court addressed White Castle’s argument that this interpretation of BIPA could lead to more than $17 billion in damages by inviting the legislature to address policy concerns regarding ruinous damages and clarify its intent. The legislature revisited BIPA, and on August 2, 2024, Public Act 103-0769 (“Amendment”) was signed into law by Governor Pritzker effective immediately. The Amendment provided that there is only one recoverable BIPA violation per individual, regardless of how many times that individual’s biometrics were scanned using the same method. However, the Amendment did not expressly address retroactivity and left open the critical question of whether plaintiffs who filed lawsuits prior to the Amendment could still recover damages on a per-scan basis.

As a result of two conflicting lines of decisions, there is no clear answer right now. In November 2024, two judges in the Northern District of Illinois reached the opposite conclusion in cases that had been filed before the Amendment—Edwards v. Central Transport LLC (Judge Bucklo, presiding) and Schwartz v. Supply Network, Inc. (Judge Alexakis, presiding). Both defendants argued that dismissal was warranted because, based on the Amendment, plaintiffs could not establish $75,000 in statutory damages necessary to support diversity jurisdiction.

In Edwards, Judge Bucklo granted defendant’s motion to dismiss, determining that the legislature had responded to Cothron’s invitation to clarify the original intent regarding BIPA damages rather than making a substantive change to the law. Therefore, Judge Bucklo found “there is no need to determine whether the amendment should have a retroactive effect because it is as if the amendment has been in place all along.”

By contrast, in Schwartz, Judge Alexakis disagreed with the reasoning in Edwards and denied the motion to dismiss.The court highlighted that the Amendment did not expressly state it was merely clarifying BIPA. Also, the court pointed out that Cothron held that the language of BIPA was clear; therefore, the legislature was substantively changing BIPA via the Amendment. Since the Amendment was a change rather than a clarification, the court turned to the question of whether the change applied retroactively and noted there is no precedential Illinois law on this issue. Citing the Illinois Statute on Statutes, which provides that procedural amendments may be applied retroactively whereas substantive amendments may not be applied retroactively, the court determined that the Amendment could not be applied retroactively. Judge Alexakis explained: “[T]he basic question of whether Schwartz has been injured just once or injured more than a thousand times strikes the Court as a matter of substance, not of procedure.”

On January 21, 2025, in Giles v. Sabert Corporation, which was also pending in the Northern District of Illinois, Judge Ellis adopted the Schwartz analysis and determined that the Amendment did not apply retroactively.

This issue was also addressed by the Circuit Court of Will County in Sellers et al. v. DNJ Intermodal Services LLC (Judge Rickmon, presiding). On October 31, 2024, the court granted defendant’s motion to strike plaintiff’s damages request, holding that the Amendment applies retroactively. The court denied plaintiff’s motion to reconsider on February 18, 2025.

Plaintiffs are represented by the same law firm in all of the cases described above, and they have made similar arguments against retroactivity. Yet, the courts still reached opposite conclusions.

Uncertainty will remain until retroactivity is addressed by the appellate courts or the legislature. There are many pending BIPA cases that were filed prior to the Amendment. Based on these conflicting decisions, defendants are looking at the difference between thousands of dollars in damages to millions or even billions of dollars in damages. Only time will tell how this conflict will be resolved and how BIPA litigation will adapt.