On April 1, 2026, the Seventh Circuit Court of Appeals issued a decision concerning the retroactive application of the Illinois Biometric Privacy Act, 740 ILCS 14/15 (“BIPA”). This decision arises out of three (3) separate interlocutory appeals from the United States District Court for the Northern District of Illinois with respect to whether the Section 20 amendment to BIPA applies retroactively. The Seventh Circuit answered this inquiry in the affirmative.

By way of background, the General Assembly of Illinois amended Section 20 of BIPA effective August 2, 2024, which imposed limits under the statute for one recovery per violation per person–– irrespective of the number of instances the person’s biometric information was collected–– so long as the information was collected in the same manner. This amendment was enacted in direct response to the Supreme Court of Illinois’s decision in Cothron v. White Castle Sys., Inc., 216 N.E.3d 918 (Ill. 2023), which, in relevant part, called on the legislature to clarify its intent with respect to the assessment of damages afforded under BIPA. While Section 20 clarified the scope of recovery under BIPA (i.e., one violation per plaintiff), the amendment left open the question of retroactive application.

In determining whether the Section 20 amendment applied retroactively, the Seventh Circuit considered whether the General Assembly expressly indicated the temporal reach of the amendment. Absent an express indication that the General Assembly intended for the amendment to be applied retroactively (or not), the Seventh Circuit acknowledged that it instead needed to seek guidance from Section 4 of the Illinois Statute on Statutes, which provides, in relevant part, that “proceedings…shall conform, so far as practicable, to the laws in force at the time of such proceeding.” 5 ILCS 70/4. This Section mandates that the Seventh Circuit consider whether the amendment constitutes a substantive or procedural change in the law.

The Seventh Circuit acknowledged that, as a general practice, the Illinois Supreme Court treats remedial changes as a procedural change in the law, rather than substantive. The Seventh Circuit further acknowledged that it has similarly determined that a remedial change is procedural where it only affects the remedy available to an individual. After a thoughtful analysis of the specific language contained in the Section 20 amendment, the Seventh Circuit determined that the change is remedial, and thus procedural, under Illinois law. Notably, the Seventh Circuit reiterated that Section 20 provides the courts with discretion to award statutory damages and that this ability does not otherwise alter the substantive rights or number of injuries sustained by the individuals. Rather, the amendment merely changed the discretionary statutory award of damages available to plaintiffs. As such, the Seventh Circuit determined that the Section 20 amendment should apply to cases pending at the time the statute was amended.

This defense favorable ruling materially reduces the potential exposure for alleged BIPA violations. Individuals and business entities should nevertheless continue to ensure that they remain in compliance with BIPA requirements and should keep themselves apprised on the ever-evolving litigation surrounding BIPA in Illinois state and federal courts.

About Rosa M. Tumialán

Rosa M. Tumialán is a partner and Co-Chair of Tressler’s Insurance Services Practice Group, Chair of the Appellate Team, and a member of the firm’s national Diversity, Equity, and Inclusion Committee. Rosa focuses her practice on insurance coverage and litigation. She is an accomplished defense attorney with more than twenty years of experience. Rosa’s insurer-related services include coverage opinion analysis and representing insurers in complex coverage disputes relating to personal and commercial lines, third-party claims, surplus lines, as well as claims handling practices and extracontractual liability. She has also litigated environmental coverage disputes throughout the Midwest for various insurers relating to superfund sites. Rosa assists with drafting coverage documents for insurance pools and counsels clients in the administration of the same. Her practice also includes serving as national coordinating coverage counsel for insurance clients who rely on her to develop and implement strategies nationwide in response to pattern litigation. Rosa is an accomplished class action defense lawyer and appellate practitioner, having appeared and argued in both state and federal courts nationwide. Click here to read Rosa’s full attorney bio.

About Alyssa N. Suareo

Alyssa N. Suareo is an associate attorney in Tressler’s Insurance Services Practice Group. She focuses her practice on insurance coverage analysis and litigation. Alyssa provides comprehensive coverage analysis and defense in matters involving a wide range of policies, including commercial general liability coverage and professional liability coverage. Click here to read Alyssa’s full attorney bio.