7th Circuit Could Rule Soon on BIPA Retroactivity, Privacy Lawyers Say
The 7th U.S. Circuit Court of Appeals could soon issue a ruling on the retroactivity of a 2023 amendment to the Illinois Biometric Information Privacy Act (BIPA), which would provide significant clarity about pending BIPA cases, said blog posts by multiple law firms.
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BIPA requires informed consent before biometric data is collected and stored. It was amended in 2024 so that plaintiffs could only get a single amount of damages in any instance where their biometric information is collected, but not multiple damages if their biometrics are collected in the same way (see 2502210037).
“Since the passage of the amendments, however, courts have consistently held that [the amendments] constitute a substantive change to the law, not a clarification, and therefore do not apply retroactively.” This means “employers with BIPA claims pending against them that were filed prior to the amendments have not received the benefit of the amendments,” said Husch Blackwell lawyers in a June 20 blog post.
On June 10, Judge Georgia Alexakis of the U.S. District Court for Northern Illinois "determined that the amendment was substantive, not procedural, and therefore does not apply retroactively," blogged the Michael Best law firm on June 12: However, the judge also "acknowledged there remains substantial grounds for a difference of opinion on whether the change should apply retroactively."
Because of this, said the Husch Blackwell lawyers, Alexakis granted Union Pacific’s request to immediately appeal the ruling to the 7th Circuit, recognizing the “novel and complex legal issues” involved.
Case 24-04194 involves plaintiff Reginald Clay, a truck driver who was required to register and scan his fingerprint upon entrance and exit to Union Pacific Railroad Company facilities. Clay alleges that Union Pacific violated BIPA when it did not disclose how his biometric information would be stored or what was done with it.
If the 7th Circuit hears the appeal, "its decision will likely have far-reaching implications for the hundreds of BIPA cases currently pending in Illinois courts and could shift the landscape for settlement and litigation strategy,” said the Husch Blackwell lawyers: The appeals court “may also choose to certify the retroactivity question to the Illinois Supreme Court for a definitive ruling.”
The lawyers added that the 7th Circuit decision could drastically reduce the potential exposure of companies, or uphold the current massive amounts of damages for each instance of collection or transmission of biometric information that occurred before the amendments.
It “could also influence the prospects for settlement in pending cases and may prompt further legislative or judicial clarification,” they said. “Until greater clarity emerges, courts are likely to continue denying the benefit of the amendments to pre-August 2024 claims.”
The Michael Best lawyers said it seems likely that the 7th Circuit "will take the opportunity to decide the issue."
A Duane Morris blog from June 12 also noted the significance of the potential ruling, saying Alexakis’ decision “sparks newfound hope on the hotly contested issue of retroactivity of the 2024 amendment to the BIPA.”
The Duane Morris lawyers warned that, for now, companies must operate under the assumption that the amendments are not retroactive. But if the 7th Circuit grants Union Pacific’s request, "then the BIPA’s ‘per-scan’ damages for pre-amendment BIPA litigation will receive further consideration,” they said. Still, "there is always a possibility the [appeals court] certifies the question to the Illinois Supreme Court.”