In a major positive development for employers facing biometric privacy litigation under the Illinois’ Biometric Information Protection Act (BIPA), the Seventh Circuit Court of Appeals unanimously held that the 2024 legislative amendments to BIPA’s damages provisions apply retroactively to pending cases. This decision dramatically curtails potential billion-dollar exposure for Illinois employers and represents the definitive end of so-called “per-scan” damages.
As we previously discussed, the Illinois Supreme Court’s 2023 ruling in Latrina Cothron v. White Castle System Inc. created an untenable outcome for Illinois employers in holding that BIPA violations accrued each time an employer collected an individual’s biometric information without complying with BIPA’s notice and consent requirements. Cothron meant that employers could incur damages (ranging from $1,500 to $5,000) every time they collected employees’ biometric information without adequate notice and consent. For example, if an employee working five days per week used unlawfully collected biometric data to scan in and out four times per day (i.e., to start/end the shift and to take a lunch break), their employer could be liable for damages ranging from $1,500,000 to $5,000,000 per employee per year.
Following the Cothron ruling, the Illinois General Assembly passed, and Governor J.B. Pritzker signed, amendments to BIPA in August 2024 that eliminated these “per-scan” damages and replaced them with “per-person”...
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