An Illinois federal court has held that the state’s recent amendment to its Biometric Information Privacy Act (“BIPA”) capping damages to one recovery for repeated identical violations applies to cases filed prior to its enactment. Gregg v. Cent. Transp. LLC, 2024 WL 4766297, at *3 (N.D. Ill. Nov. 13, 2024).

Last year, the Illinois Supreme Court held that a BIPA claim accrues with each biometric scan or disclosure without informed consent, and it called on the legislature to address the policy-based concerns about BIPA’s “potentially excessive” damages awards. Cothron v. White Castle Sys., Inc., 216 N.E.3d 918, 920, 929, as modified on denial of reh’g (July 18, 2023). The legislature did so, amending BIPA so that damages are available on a per-person, rather than per-scan, basis where an entity has repeatedly collected or disclosed the same biometric identifier or information from the same person in the same manner without informed consent.

The amendment’s text did not specify whether it would apply to cases pending when the amendment was enacted. The Gregg court held that it does. In Gregg, the court explained that the general Illinois presumption that statutory amendments are “intended to change existing law” does not apply where it is clear that the legislature intended to clarify or interpret the original statute. Gregg, 2024 WL 4766297, at *2. The court reasoned that “by inviting the legislature to ‘clarify’ the issue of damages, the Illinois Supreme Court [in Cothron] endorsed the view that the issue was unsettled and that the legislature could permissibly settle it” and that “the clarified intent enacted in [the BIPA amendment] must be applied as if it were clear from the date of the BIPA’s enactment.” Id. at *3.