Changes to Illinois’ Biometric Information Privacy Act (BIPA) are awaiting Gov. J.B. Pritzker’s signature. The legislation, poised to provide clarity for businesses, raises questions regarding the potential retroactive application to ongoing or past lawsuits.
The newly proposed legislation, Senate Bill 2979 (SB 2979), addresses concerns stemming from the Illinois Supreme Court’s ruling in Cothron v. White Castle System. The ruling had significantly increased potential damage awards under BIPA. Specifically, the court determined that each instance of collecting biometric data without consent constituted a separate violation, leading to potentially astronomical damages for businesses. For example, White Castle faced potential damages exceeding $17 billion.
Among the critical amendments, SB 2979 defines “electronic signature” to allow electronic consent and caps statutory damages on a per-individual basis rather than per-scan. If a violation of either Section 15(b) or 15(d) occurs multiple times with respect to the same individual, the company would face a single instance of statutory damages—$1,000 for negligent violations or $5,000 for intentional or reckless violations—instead of multiple penalties.
This legislative response aims to avoid the “ruinous” awards highlighted in the Cothron case and reflects an effort to make BIPA more reasonable and in line with the legislature’s intentions. Rep. Ann Williams noted that the amendment seeks to avoid financially disruptive penalties for businesses.
However, the bill’s implications for retroactive application remain contended. The legislative history suggests courts could consider these new amendments in resolving past or pending cases. During a House floor debate, Rep. Daniel Didech inquired about retroactive application. Williams clarified that while the amendment doesn’t explicitly state retroactivity, a reviewing court could still take judicial notice of the legislative changes when determining or reducing awards.
Furthermore, Sen. Bill Cunningham highlighted that avoiding a specific retroactivity provision was a deliberate choice to prevent overturning previous judgments. Nonetheless, Cunningham emphasized that the legislation addresses the Supreme Court’s concerns by limiting damage accrual on a per-person basis.
Without explicit retroactive language, businesses might find themselves in a gray area. Defendants in ongoing BIPA litigation may argue for judicial discretion, invoking the bill’s legislative history to mitigate potential damages. That said, courts will ultimately decide if the amendment modifies procedural elements, which could support retroactive application.
As Illinois corporations and legal practitioners navigate these changes, the evolving interpretation of BIPA will significantly impact compliance strategies and litigation outcomes. For further details, refer to the complete article on Bloomberg Law.