Following the Illinois’ Supreme Court’s decision in Cothron v. White Castle System, Inc., the Illinois legislature amended the Biometric Information Privacy Act (BIPA), which the governor signed into law as Public Act 103-0769 on August 2, 2024. Public Act 103-0769 clarified that multiple BIPA violations against the same person using the same method, constitute a single violation and accordingly limited damages recovery. But since Public Act 103-0769 became law, its retroactivity has sparked controversy, which has only been fueled by recent conflicting court decisions on the issue. On November 13, 2024, the District Court for the Northern District of Illinois, in Gregg v. Central Transport LLC, held that the amendment applied retroactively because it was enacted to clarify an existing ambiguity in the statute’s text and was consistent with the statute’s intent. Thus, the court determined that the plaintiff’s damages were limited to a single recovery for the same BIPA violation.

Days later, on November 22, 2024, a different judge on the same court, in Schwartz v. Viking SupplyNet, held that Public Act 103-0769 did not apply retroactively. Though the Gregg decision made it appear that the retroactivity debate had been settled, the Schwartz decision reopened the door. It remains to be seen what the prevailing approach will be, which leaves BIPA defendants in a state of uncertainty.

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