1. Retroactivity of BIPA Amendment

On April 1, 2026, the U.S. Court of Appeals for the Seventh Circuit issued a unanimous decision in Clay v. Union Pacific Railroad Co., No. 25-2185, holding that the 2024 amendment to the Illinois Biometric Information Privacy Act (“BIPA”) applies retroactively to all lawsuits pending at the time the amendment took effect.

• In 2023, the Illinois Supreme Court held in Cothron v. White Castle System, Inc. that a separate BIPA violation — and therefore a separate potential damages award — accrued every time an employer collected or disclosed an individual’s biometric information without complying with BIPA’ s notice and consent requirements. In response, the Illinois legislature passed, and Governor Pritzker signed an amendment to BIPA in August 2024. The amendment provides that when a private entity collects or discloses the same biometric identifier from the same person using the same method, that conduct constitutes only one violation of the law, entitling the individual to at most one recovery of statutory damages, as opposed to the “per-scan” damages model. However, the amendment did not address whether the law would apply to lawsuits pending at the time of its enactment.
• The 7^th Circuit held that the 2024 amendment is a procedural, remedial change to the statute — not a substantive one — and therefore applies retroactively to all cases pending at the time of enactment.
• Thus, employers defending BIPA lawsuits filed before August 2, 2024...

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