On April 1, 2026, the U.S. Court of Appeals for the Seventh Circuit, which consolidated three interlocutory appeals, issued a significant ruling in Clay v. Union Pacific Railroad Co., that resolves the question of whether Illinois’s 2024 amendment to the Biometric Information Privacy Act (“BIPA”) applies retroactively to cases pending when it was enacted.[1] The court answered in the affirmative, and held that the amendment applies retroactively. This decision is a victory for businesses facing astronomical exposure in pending BIPA litigation.
Background: The Cothron Decision and the Legislative Response
BIPA regulates the way in which private entities collect, retain, and disclose biometric identifiers and biometric information. Section 15 of BIPA describes the substantive requirements, prohibiting private entities from collecting or disseminating an individual’s biometric identifiers without informed consent.[2] Section 20 creates a private right of action and establishes liquidated damages of $1,000 per negligent violation and $5,000 per intentional or reckless violation.[3]
In 2023, the Illinois Supreme Court held in Cothron v. White Castle System, Inc., that a new claim accrues under Section 15 “with every scan or transmission” of biometric information.[4] This decision opened the door for astronomical damages. The court acknowledged policy concerns with such an outcome and “respectfully suggest[ed] that the legislature review these policy concerns and make clear its intent regarding the assessment of damages under the Act.”[5]
The Illinois General Assembly amended Section 20 of BIPA less than a year and a half later in two new subsections providing that a private entity that collects the same biometric identifier from the same person using the same method of collection “has committed a single violation” for which the aggrieved person is entitled to “at most, one recovery.”[6] The amendment did not include an express retroactivity clause.[7]
The Seventh Circuit’s Analysis
Applying Illinois’s retroactivity framework, the Seventh Circuit held that the amendment is retroactive. Under Illinois law, when an amendment is silent on its temporal reach, pending proceedings “shall conform, so far as practicable, to the laws in force at the time of such proceeding.”[8] The key question then becomes whether the amendment is substantive (generally not retroactive) or procedural (retroactive).[9] The Illinois Supreme Court treats remedial changes as procedural.[10]
The Court stated that the “amendment to BIPA Section 20 is a remedial change” which makes it “‘procedural’ under Illinois law, so courts should apply the amendment to cases pending at the time the statute was enacted.”[11]
Practical Implications for Businesses
This decision has immediate and significant practical implications. The ruling effectively eliminates the threat of per-scan, multimillion-dollar damages awards in pending BIPA cases and drastically reduces exposure to businesses.[12] Any settlement considerations, on individual cases or class basis, should be reconsidered based on this new ruling.
The ruling also has broader implications for BIPA compliance going forward. With the per-scan damages threat eliminated, the focus in these cases can return to the merits — namely, whether the company followed the law’s informed consent requirements. Businesses should nevertheless continue to maintain robust BIPA compliance programs, as the statute still provides a private right of action and meaningful per-person damages for violations.
McGuireWoods has a team of attorneys who represent companies in BIPA litigation and advise on biometric privacy compliance matters. For any questions about this alert, please contact our listed attorneys below.
[1] Clay v. Union Pac. R.R. Co., Nos. 25-2185, 25-2761, 25-2762 (7th Cir. Apr. 1, 2026)
[2] Id. at 3 (citing 740 ILCS 14/15(b), (d))
[3] Id. at 4 (citing 740 ILCS 14/20).
[4] Cothron v. White Castle System, Inc., 216 N.E.3d 918, 926, ¶ 30 (Ill., 2023)
[5] Id., ¶ 43.
[6] Clay, Nos. 25-2185, 25-2761, 25-2762, at 5 (citing Pub. Act. 103-0769, 2024 Ill. Laws 6788–89 (2024)).
[7] Id.
[8] Id. at 7.
[9] Id. at 8.
[10] Id.
[11] Id. at 9.
[12] Id. at 3.