A district court in Illinois has ruled that an amendment to the Illinois Biometric Information Privacy Act (BIPA) regarding a limitation on damages does not apply retroactively.
Background
Plaintiff filed a class action complaint alleging claims under BIPA and common law negligence. Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). Defendants argued that the court lacked jurisdiction over the claims because Plaintiff could not meet the amount in controversy under the Class Action Fairness Act (CAFA) due to the August 2024 amendment to BIPA, which limited the amount of recoverable damages under the statute. The court ultimately denied Defendant’s motion.
Court’s Decision
The issue, as framed by the parties, is whether the BIPA amendment is a clarification of a prior law that applies to pending proceedings or a substantive change in the law that applies only prospectively. The Court determined that the August 2024 amendment changed the law and applied the “Landgraf analysis” to decide whether the change should be applied retroactively or prospectively. Under the Landgraf analysis, the Illinois legislature did not expressly prescribe a temporal reach of the amendment. The plain text of the amendment contains no express provision regarding temporal reach. The amendment limited the scope of what constitutes a violation.
Prior to the August 2024 amendment, a BIPA claim accrued “with every scan or transmission of biometric identifiers or biometric information without prior consent.” See Cothron v. White Castle Systems, Inc., 466 Ill. Dec. 85, 216 N.E.3d 918 (Ill. 2023). After the amendment, multiple scans or transmissions of the same biometric identifier are treated as a single violation, for which an individual is entitled to a single recovery. The amendment, therefore, also defines a “violation” and modifies (by limiting) the scope of liability a private entity faces. This is more than a change to recovery but rather a substantive change in the law, as seen in The PEOPLE ex. Rel. Lisa Madigan, v. J.T. Einoder, Inc., et al 2015 Il. 117193 (2015): “an amendment is substantive when it imposes new liability.” For those reasons, this Court found that the August 2024 amendment is a substantive change in the law that applies only prospectively.
Because the law applies prospectively, the Court held that potential class members could recover liquidated damages for each instance their biometric information was collected or disclosed in violation of the statute. Thus, the Court had subject matter jurisdiction over the case pursuant to CAFA.
