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.

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Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She regularly defends clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She regularly defends clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.

Photo of Thea McCullough Thea McCullough

Thea McCullough counsels national and multinational companies across industries as a member of the Data Privacy and Cybersecurity, Litigation, and Public Policy practice groups.

Thea advises clients on a broad range of privacy issues, such as privacy policies and data practices, responses to…

Thea McCullough counsels national and multinational companies across industries as a member of the Data Privacy and Cybersecurity, Litigation, and Public Policy practice groups.

Thea advises clients on a broad range of privacy issues, such as privacy policies and data practices, responses to regulatory inquiries, and compliance obligations under federal and state privacy regulations, including biometric privacy laws. She also represents clients before the Federal Trade Commission in privacy enforcement actions and in consumer protection litigation.

Thea draws on her past experience across all branches of government to inform her practice and to advise clients on public policy matters. Most recently, Thea served as a clerk for the U.S. District Court for the Eastern District of Texas. Prior to beginning her legal career, Thea served as the communications director for the White House National Space Council, where she spearheaded messaging campaigns for Presidential Space Policy Directives and the administration’s civil, commercial, and defense space policy initiatives, and previously as the communications director for the U.S. House Committee on Science, Space, and Technology, where she managed the communications team and developed messaging strategies for policy and legislation covering several issue areas, including cybersecurity, advanced technologies, space, energy, environment, and oversight. She also served as a national spokesperson for President Trump’s 2020 campaign.

Thea is admitted to the DC Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.