On August 2, 2024, Illinois Governor J.B. Pritzker signed Senate Bill 2979, which clarifies the measure of damages available under the Biometric Information Privacy Act (“BIPA”) and allows entities to obtain consent to biometric collection by a written release executed via electronic signature. The Bill was introduced in January of 2024 as a response to the Illinois Supreme Court’s decision in Cothron v. White Castle System, Inc., 2023 IL 128004, which held that each instance of biometric data capture (e.g., each “scan”) could constitute a separate violation under BIPA. This could have led to monumental damages awards as the law allows for the recovery of up to $1,000 for negligent violations and $5,000 for intentional or reckless violations.
The new amendment to BIPA does away with “per-scan” damages previously thought to be available under the Cothron decision. Specifically, the law states that an “aggrieved person” may only recover for one violation even if a private entity collects or discloses biometric data more than once. Monetary damages remain discretionary and only if negligence is proven. This will significantly limit an individual plaintiff’s potential recovery in a BIPA lawsuit.
Moving forward, the issue will be whether the amendment can be applied retroactively to all pending lawsuits and alleged violations prior to its passage. Defendants will argue that the amendment should be retroactively applied because the language of the new law is silent as to a temporal reach and is procedural in nature. The Illinois Supreme Court has made clear that amendments without an explicit temporal reach “that are procedural may be applied retroactively, while those that are substantive may not.” Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 331 (2006). In a similar instance, the Illinois Supreme Court held that an amendment to the Illinois Nursing Home Care Act, which abolished the ability to recover treble damages, was appropriately applied retroactively because “the repeal of the treble damages provision by the legislature as a result of Public Act 89-197 does not interfere with plaintiff’s substantive right to recover against defendant for violations under the Nursing Home Care Act.” Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999).
“It has been well settled for over a century that, prior to judgment, a plaintiff has no vested right to a particular method of procedure or remedy…” Id. at 299. As to BIPA specifically, defendants will argue that a certain calculation of statutory, liquidated damages is not a “vested right,” in part because damages under BIPA are discretionary. Cothron v. White Castle Sys., Inc., 2023 IL 128004, ¶ 42. Under the new law, plaintiffs may still recover statutory damages, actual damages, and obtain injunctive relief and, therefore, it does not entirely preclude an individual’s right to redress for violations of the statute. Defendants will also argue that statutory damages are never a “vested right” until a judgment is awarded. White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296, 301 (2d Dist. 1998). There will certainly be a hard-fought battle over retroactivity because of the significant limitations on available monetary damages under BIPA.
Contact Gordon Rees Scully Mansukhani's Chicago office for more information on BIPA and other Illinois-specific employment and consumer statutes.