Schwartz and the Retroactivity of BIPA

In August 2024, the Illinois legislature, with much fanfare , amended the Illinois Biometric Information Privacy Act (“BIPA”) to limit how much a plaintiff could recover each time its biometric information was inappropriately captured by a defendant.  The amendment explained that when an entity subject to BIPA “in more than one instance, collects, captures, purchases, receives through trade, or otherwise obtains the same biometric identifier or biometric information from the same person using the same method of collection” in violation of BIPA, the entity “has committed a single violation … for which [it] is entitled to, at most, one recovery.”  This amendment ensured that BIPA, which previously allowed for damages of either $1,000 or $5,000 per scan, would be less lucrative going forward.   Following the amendment, one question remained: should it apply retroactively?

In Schwartz v. Supply Network, Inc. d/b/a Viking SupplyNe t¹, which was filed pre-amendment in 2023, Judge Alexakis of the Northern District of Illinois answered this question.  According to the defendant, Viking SupplyNet (“Viking”), the amendment merely clarified that “BIPA does not— and never did —allow for an award of statutory damages on a ‘per-scan’ basis.”²  Conversely, the plaintiff, Jeffrey Schwartz, argued that Illinois law presumes that amendments are intended to change, not clarify, “the law as it previously existed,” and while that presumption “may be overcome” if the legislature declares it was clarifying a prior enactment, such a declaration must be about more than the public statements of a handful of lawmakers.³  The Northern District of Illinois sided with Schwartz.

Judge Alexakis discussed the 2023 Illinois Supreme Court decision, Cothron v. White Castle Sys., Inc. , which called on the Illinois legislature to review “policy concerns” regarding potentially excessive damages and “make clear its intent regarding the assessment of damages under the Act.”⁴  According to Judge Alexakis, Cothron was not discussing an ambiguity in the text; indeed, Cothron “found the statutory language here clear.”⁵ Absent an ambiguity, Judge Alexakis found that the amendment was a change , and thus, the only question is whether it should be applied retroactively.

Under Illinois law, the first question for retroactivity is “whether the legislature has clearly indicated the temporal reach of an amended statute.”⁶  Because the Illinois legislature did not, Juge Alexakis went on to the decisive issue: “whether the amendment is substantive or procedural.”⁷  In finding the amendment substantive, Judge Alexakis explained: “the basic question of whether Schwartz has been injured just once or injured more than a thousand times strikes the Court as a matter of substance, not of procedure.”⁸  Accordingly, the Northern District of Illinois held that “Illinois law compels that the amendment be applied prospectively, not retroactively.”⁹

For Schwartz, the ramifications are easy: he can proceed with his litigation against Viking and seek redress for the more than 1,000 times his biometric information was allegedly collected, seeking at least $1,000,000 in penalties.  More globally, however, it means that any and all plaintiffs who filed BIPA cases prior to the August 2024 amendment are not limited by the amendment.  That is, unless the Illinois legislature wants to revisit this once again.  Only time will tell.  

1  No. 23-cv-14319 (N.D. Ill.) (“ Schwartz ”).
2   Schwartz at 3.
3   Id. at 3-4.
4   Id. at 5.
5   Id. at 6.
6   Caveney v. Bower , 207 Ill. 2d 82, 91 (2003).  
7   Schwartz at 9.
8   Id. at 11.
9   Id. at 12.  

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