Reginald Clay v. Union Pacific Railroad Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-2185
R EGINALD C LAY ,
Plaintiff-Appellee,
v.
U NION PACIFIC R AILROAD C OMPANY ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:24-cv-04194 — Georgia N. Alexakis, Judge.
____________________
No. 25-2761
BRANDON WILLIS ,
Plaintiff-Appellee,
v.
U NIVERSAL I NTERMODAL S ERVICES , I NC ., et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-01716 — Elaine E. Bucklo, Judge.
____________________

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2 Nos. 25-2185 et al.
No. 25-2762
JOHN GREGG,
Plaintiff-Appellee,
v.
C ENTRAL TRANSPORT LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:24-cv-01925 — Elaine E. Bucklo, Judge.
____________________
A RGUED F EBRUARY 12, 2026 — DECIDED A PRIL 1, 2026
____________________
Before BRENNAN , Chief Judge, and H AMILTON and JACKSON -
A KIWUMI , Circuit Judges.
BRENNAN , Chief Judge. In 2024, Illinois’s General Assembly
amended Section 20 of the Biometric Information Privacy Act,
confirming that damages should be evaluated on a per-person
basis. The legislature did so in response to a Supreme Court
of Illinois decision, in which the court expressed concern that
the old version of Section 20 might permit “annihilative liabil-
ity” for businesses regulated by the Act. Cothron v. White
Castle Sys., Inc., 216 N.E.3d 918, 928 (Ill. 2023). The question
presented is whether this amendment applies retroactively to
cases pending when it was enacted.

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Nos. 25-2185 et al. 3
I
A
Illinois enacted the Biometric Information Privacy Act
(BIPA or the Act) to respond to the increasing use of biometric
data in commerce. Fox v. Dakkota Integrated Sys., LLC, 980 F.3d
1146, 1149 (7th Cir. 2020). BIPA codified individuals’ “right to
privacy in and control over their biometric identifiers and bi-
ometric information.” Bryant v. Compass Grp. USA, Inc., 958
F.3d 617, 621 (7th Cir. 2020) (quoting Rosenbach v. Six Flags
Ent. Corp., 129 N.E.3d 1197, 1206 (Ill. 2019)). The Act regulates
how private entities must handle the collection, retention, and
disclosure of such information. 740 ILCS 14/15.
BIPA has become a font of high-stakes litigation. Cf.
Bridges v. Blackstone, Inc., 66 F.4th 687, 688 (7th Cir. 2023). Five
years ago, one such case came before this court. In Cothron v.
White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021), this
court was asked to decide how claims accrue under BIPA’s
substantive provisions. BIPA prohibits private entities from
“collect[ing],” “captur[ing],” “disclos[ing],” or “otherwise
disseminat[ing]” anyone’s biometric identifiers without their
informed consent. 740 ILCS 14/15(b), (d). In Cothron’s view,
this meant her employer collected her biometric information
and a new claim accrued every single time she scanned her
fingerprint to access the company’s computer system.
Cothron, 20 F.4th at 1160. The defendant argued this per-scan
theory of claim accrual would create “potentially crippling fi-
nancial liability” for those who violate BIPA by repeatedly
collecting the same information in the same way. Id. at 1165.
Recognizing the stakes of the case, this court certified the
question of claim accrual under BIPA Sections 15(b) and (d) to

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4 Nos. 25-2185 et al.
the Supreme Court of Illinois. Id. at 1167. That court accepted
our certification request. Cothron, 216 N.E.3d at 921 (Ill. 2023).
After concluding that the text of Section 15 is unambiguous,
the court sided with the plaintiffs and held that claims accrue
“with every scan or transmission” of biometric information.
Id. at 926; see also id. at 922, 924–26.
Though the Cothron decision centered on the plain text of
Section 15, another part of BIPA loomed over the case. Sec-
tion 20 creates “a right of action” for plaintiffs to sue private
entities that violate BIPA. 740 ILCS 14/20(a). That section also
sets the damages a plaintiff can recover “for each violation,”
creating a choice between actual and liquidated damages—
“whichever is greater.” Id. at 20(a)(1)–(2). When a business
“intentionally or recklessly violates a provision of this Act,”
the plaintiff can obtain $5,000 in statutory damages. Id. at
(a)(2). A negligent violation lands plaintiffs a $1,000 damages
award. Id. at (a)(1).
The defendant and amici in Cothron invoked Section 20 to
dissuade the court from adopting its per-scan reading of Sec-
tion 15. “[B]ecause section 20 of the Act sets forth liquidated
damages that a party may recover for ‘each violation,’” they
argued, this approach “could potentially result in punitive
and ‘astronomical’ damage awards.” Cothron, 216 N.E.3d at
928 (quoting 740 ILCS 14/20(a)). The defendant noted that
class-wide damages in that suit could exceed $17 billion, a re-
sult the legislature could not have intended. Id.
The Supreme Court of Illinois acknowledged this concern.
Though BIPA leverages “the potential for significant damages
awards” to ensure compliance, the court recognized that the
text of Section 20 might cut against the availability of such
massive monetary penalties. Id. at 928–29. But it still

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Nos. 25-2185 et al. 5
“believe[d] that policy-based concerns about potentially ex-
cessive damage awards under the Act are best addressed by
the legislature.” Id. at 929. So, the court concluded its opinion
by “respectfully suggest[ing] that the legislature review these
policy concerns and make clear its intent regarding the assess-
ment of damages under the Act.” Id.
B
The Illinois General Assembly responded to the court’s in-
vitation. Less than a year and a half after the Cothron decision,
the General Assembly passed an amendment to Section 20
clarifying the scope of damages available under BIPA. See
Pub. Act. 103-0769, 2024 Ill. Laws 6788–89 (2024). The amend-
ment took effect on August 2, 2024—the same day the gover-
nor signed it into law. Id.
This amendment added two clauses to Section 20. The first
provides that any entity that collects biometric information
“in more than one instance … from the same person using the
same method of collection in violation of subsection (b) of Sec-
tion 15 has committed a single violation of subsection (b) of
Section 15 for which the aggrieved person is entitled to, at
most, one recovery under this Section.” 740 ILCS 14/20(b). The
second adds the same operative language for violations of
Section 15(d). Id. at 14/20(c). The legislature did not change
the text of Section 15 or Section 20(a) at all, nor did it include
an express retroactivity clause. Id.
II
We have consolidated three interlocutory appeals posing
a common legal question—whether this amendment to BIPA
Section 20 applies retroactively. Reginald Clay, a commercial
truck driver, alleges that the Union Pacific Railroad violated

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6 Nos. 25-2185 et al.
Section 15(b) of BIPA by requiring him to scan his fingerprints
when he entered and exited the company’s facilities. John
Gregg and Brandon Willis each allege their employers col-
lected their fingerprints or hand geometry through a “bio-
metric time clock,” violating BIPA Sections 15(a), (b), and (d).
Though these cases come to us in different procedural pos-
tures, each district court certified this question for interlocu-
tory review, and we granted the requests to appeal. 28 U.S.C.
§ 1292(b).
The financial stakes of this case are high. If the amendment
does not apply, each plaintiff argues he is entitled to a sub-
stantial award of damages. Clay, for example, alleges that the
Railroad collected his fingerprint scans approximately 1,500
times. If the railroad is found liable for intentional violations
of the Act, that could net Clay alone $7.5 million in statutory
damages. And Willis filed his case as a putative class action,
leading to a risk of billions of dollars in damages.
We review the district courts’ determination of this state
law question de novo. Webster v. CDI Ind., LLC, 917 F.3d 574,
577 (7th Cir. 2019). The Erie doctrine dictates that the “highest
court of each State, of course, remains ‘the final arbiter of what
is state law.’” Montana v. Wyoming, 563 U.S. 368, 377 n.5 (2011)
(quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)).
“When no decision from the state supreme court squarely
controls, federal courts predict how the relevant state court
would rule,” sometimes called an Erie prediction. Giovannelli
v. Walmart Inc., 164 F.4th 1052, 1054 (7th Cir. 2026) (citing
Smith v. RecordQuest, LLC, 989 F.3d 513, 519 (7th Cir. 2021)).
Fortunately, the Illinois law of retroactivity is well estab-
lished, allowing us to predict how the Supreme Court of Illi-
nois would rule with a high degree of confidence.

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Nos. 25-2185 et al. 7
III
For the reasons below, we hold that this amendment to
BIPA Section 20 applies retroactively to cases pending at the
time it was enacted.
A
To determine whether a statute applies retroactively, Illi-
nois courts apply a modified version of the federal test. See
Commonwealth Edison Co. v. Will Cnty. Collector, 749 N.E.2d
964, 972 (Ill. 2001). In Landgraf v. USI Film Products, 511 U.S.
244 (1994), the Supreme Court set out a two-step approach to
evaluating retroactivity. But Illinois courts do not move past
the first step. Perry v. Dept. of Fin. and Prof. Reg., 106 N.E.3d
1016, 1026 (Ill. 2018). They consider only whether the General
Assembly has expressly indicated the temporal reach of the
amendment. Id.
The reason for this modification is that the legislature has
set a default rule for the temporal reach of all statutes. If the
amendment expressly states whether it applies retroactively
or not, the plain text controls. Id. But if the amendment is si-
lent on its temporal reach, the courts look to Section 4 of the
Illinois Statute on Statutes for guidance. Id. Section 4 contains
an express savings clause, which states that “proceedings …
shall conform, so far as practicable, to the laws in force at the
time of such proceeding.” 5 ILCS 70/4.
As the Supreme Court of Illinois has summarized, Sec-
tion 4 directs us to consider whether amendments constitute
substantive or procedural changes in the law. Perry, 106
N.E.3d at 1027. The legislature is presumed to know about
Section 4, so this background principle controls in all cases. Id.
at 1033; see Caveny v. Bower, 797 N.E.2d 596, 603 (Ill. 2003).

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8 Nos. 25-2185 et al.
A substantive amendment under Illinois law “prescribes
the rights, duties, and obligations of persons to one another
as to their conduct or property and … determines when a
cause of action for damages or other relief has arisen.” Perry,
106 N.E.3d at 1034 (citation omitted). By contrast, a proce-
dural amendment involves the “rules that prescribe the steps
for having a right or duty judicially enforced, as opposed to
the law that defines the specific rights or duties themselves.”
Id. (citation omitted). In many different contexts, “distin-
guishing between procedural and substantive changes can
sometimes be unclear.” Id. at 1033 (citing People v. Atkins, 838
N.E.2d 943, 946–47 (Ill. 2005)). Because “[p]rocedural ramifi-
cations of a substantive amendment do not make the amend-
ment procedural” under Illinois law, courts must carefully
consider the text and structure of the amendment to deter-
mine its scope. Atkins, 838 N.E.2d at 948.
Crucially, the Supreme Court of Illinois treats remedial
changes as procedural, not substantive. Since 1999, that court
has singled out remedial provisions for special treatment in
four different retroactivity cases. See Dardeen v. Heartland
Manor, Inc., 710 N.E.2d 827, 828–29 (Ill. 1999); People v. Glisson,
782 N.E.2d 251, 257 (Ill. 2002); People ex rel. Madigan v. J.T.
Einoder, Inc., 28 N.E.3d 758, 766–67 (Ill. 2015), Perry, 106
N.E.3d at 1034. Illinois law has affirmed this general principle
for many decades. See Orlicki v. McCarthy, 122 N.E.2d 513,
515–16 (Ill. 1954) (collecting cases showing that “where the
change in law merely affects the remedy,” the change counts
as procedural and applies retroactively). This court also rec-
ognizes the rule. See Midwest Grain Prods. of Ill., Inc. v. Produc-
tization, Inc., 228 F.3d 784, 792 (7th Cir. 2000) (“If a rule affects
only the remedy available and not the substantive rights of
the parties, it is considered procedural.” (citation modified)).

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Nos. 25-2185 et al. 9
And though Illinois reformulated its approach to retroactivity
in 2001, see Commonwealth Edison, 749 N.E.2d at 972, we have
found no case decided after the Supreme Court of Illinois
adopted its modified Landgraf test that repudiates this
longstanding principle.
There are limits to this carveout for remedial provisions.
For one, an amendment creating a brand-new remedy—like
adding mandatory injunctive relief to a statute contemplating
only monetary penalties—counts as substantive. J.T. Einoder,
28 N.E.3d at 766–67. For another, it appears the Supreme
Court of Illinois usually applies this rule in the context of
amendments involving statutory or punitive damages. See
Perry, 106 N.E.3d at 1034 (indicating that changes to “special
remedial statutes” can be applied retroactively); Glisson, 782
N.E.2d at 257 (same); Dardeen, 710 N.E.2d at 832 (applying a
repeal of a statutory treble damages provision retroactively).
Still, Illinois courts have consistently ruled that they “can
apply retroactively statutory changes to procedural or reme-
dial provisions, whether they are outright repeals or amend-
ments.” Glisson, 782 N.E.2d at 257. We take this principle as
the rule of decision for this case.
B
The amendment to BIPA Section 20 is a remedial change.
That makes it “procedural” under Illinois law, so courts
should apply the amendment to cases pending at the time the
statute was enacted. Both the text of the amendment and the
Supreme Court of Illinois’s discussion of Section 20 in Cothron
indicate that the amendment addresses the availability of
damages, not proscribed conduct. So, it should not be treated
as a substantive change under Illinois law.

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10 Nos. 25-2185 et al.
Start with the text and structure of the amendment. As
noted above, the amendment adds two subsections to BIPA
Section 20—one addressed to Section 15(b) and another to
Section 15(d). In both provisions, the operative language
states that a “private entity that, in more than one instance,”
violates the substantive BIPA provision by collecting, obtain-
ing, or disseminating “the same biometric identifier or bio-
metric information from the same person” using “the same
method of collection … has committed a single violation of sub-
section [(b) or (d)] … for which the aggrieved person is entitled to,
at most, one recovery under this Section.” 740 ILCS 14/20(b) (em-
phasis added).
Two features of this amendment show that it is a remedial
provision. First, the legislature located it in Section 20, not Sec-
tion 15. It did not change Section 15 at all, even though that
was the portion of BIPA interpreted in Cothron and the one
setting substantive standards for liability under the Act.
Instead, it amended the portion of the statute governing liq-
uidated damages. The legislature also left Section 20(a), the
provision creating a cause of action to sue for violations of
Section 15, untouched. Second, the plain language of the
amendment focuses on remedies. It indicates that an “ag-
grieved person is entitled to, at most, one recovery under this
Section.” 740 ILCS 14/20(b), (c) (emphasis added). In tandem,
these points highlight that the amendment did not alter when
“a cause of action … has arisen,” nor did it change “the rights,
duties, and obligations of persons to one another”—the hall-
marks of substantive changes. Perry, 106 N.E.3d at 1034. It
simply cabined the recovery available against defendants
who violate the Act.

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Nos. 25-2185 et al. 11
To try to show the statute makes a substantive change,
plaintiffs focus on the phrase “a single violation.” In their
view, Cothron stands for the proposition that a private entity
commits a “violation” of BIPA every time an individual scans
his or her fingerprint in a way prohibited by Section 15(b).
And an entity “violates” Section 15(d) every time it dissemi-
nates the same information. That would mean this amend-
ment substantively changed BIPA because it transformed
thousands of violations into just one, terminating millions of
dollars of liability. As one oft-cited district court opinion sum-
marized, “[T]he basic question of whether [a plaintiff] has
been injured just once or injured more than a thousand times
strikes the Court as a matter of substance, not of procedure.”
Schwartz v. Supply Network, Inc., No. 1:23-cv-14319, 2024 WL
4871408, at *5 (N.D. Ill. 2024).
This argument both misreads the statute and overstates
Cothron’s holding. Section 15 outlines the informed consent
procedures private entities must follow if they want to collect,
store, or distribute biometric information. It does not include
the word “violation” at all. That term appears exclusively in
Section 20, which provides “a right of action” for “[a]ny per-
son aggrieved by a violation of this Act.” 740 ILCS 14/20(a).
And it uses the word again when outlining the damages avail-
able under the Act, saying that prevailing parties may recover
liquidated damages “for each violation.” Id.
Cothron did not consider the meaning of the word “viola-
tion” in Section 20; it considered only how claims accrued for
purposes of Section 15. That distinction makes all the differ-
ence. The legal issue in the Seventh Circuit iteration of Cothron
was whether the statute of limitations barred the suit. 20 F.4th
at 1158–59; see also Cothron, 216 N.E.3d at 921. To answer that

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12 Nos. 25-2185 et al.
question, Illinois law asks when relevant claims accrue—
whether the first time the entity collected the biometric infor-
mation, or every time it did so. Cothron, 20 F.4th at 1161–62.
After the Supreme Court of Illinois answered the certified
question, this court affirmed the district court’s conclusion
that Cothron’s claim was not time-barred. Cothron v. White
Castle Sys., Inc., 79 F.4th 894, 895–96 (7th Cir. 2023).
These points indicate that Cothron asked a very different
question than the one before us now. True, the Supreme Court
of Illinois sometimes used the words “violation” and “claim”
interchangeably in its opinion. Cothron, 216 N.E.3d at 922, 926,
927–28. But it did not purport to interpret Section 20 when it
did so. It instead used these terms as synonyms as it decided
whether Cothron’s suit was filed on time or over a decade too
late. Id. at 920–21; Cothron, 20 F.4th at 1158–59.
Further, the brief discussion of Section 20 at the end of
Cothron supports, rather than contradicts, our reading of the
statute. When addressing concerns raised by amici and the
defendant about excessive damages awards under BIPA, the
Supreme Court of Illinois expressed uneasiness about how
Section 20 might interact with this accrual regime. See Cothron,
216 N.E.3d at 928–29. The court invited the legislature to “re-
view these policy concerns and make clear its intent regarding
the assessment of damages under the Act” because it was not
obvious whether Section 20 mandated per-scan damages. Id.
at 929. Unlike Section 15, Section 20 needed clarification.
Even though Section 20(a) was not before it, the court still
hazarded some initial interpretations of that provision. First,
it asserted that “there is no language in the Act suggesting
legislative intent to authorize a damages award that would
result in the financial destruction of a business.” Cothron, 216

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Nos. 25-2185 et al. 13
N.E.3d at 929. Second, it noted that the statute uses the per-
missive “may” as it talks about awarding damages—a “pre-
vailing party may recover.” Id. (quoting 740 ILCS 14/20(a)).
Based on this word choice, the court observed, “It … appears
that the General Assembly chose to make damages discretion-
ary rather than mandatory under the Act.” Id. Third, the court
noted that a “trial court presiding over a class action—a crea-
ture of equity—would certainly possess the discretion to fash-
ion a damage award that … included an amount designed to
deter future violations, without destroying defendant’s busi-
ness.” Id. (citation omitted).
The amendment to Section 20 reaffirms the point that
damages appear to be discretionary under BIPA. After all, it
states plaintiffs are “entitled to, at most, one recovery.” 740
ILCS 14/20(b), (c). By including the qualifier “at most,” the
amendment indicates that plaintiffs alleging thousands of vi-
olations might not even be entitled to the full award of liqui-
dated damages permitted by Section 20(a). This comports
with the Supreme Court of Illinois’s recognition that nothing
in the Act authorizes destructive financial penalties—espe-
cially in the class action context. Cothron, 216 N.E.3d at 929;
see also Svoboda v. Amazon.com Inc., 168 F.4th 956, 966 (7th Cir.
2026) (emphasizing the district court’s discretion to award
damages on a class-wide basis).
Taken together, these points reaffirm the remedial nature
of this BIPA amendment. If courts have discretion to decide
whether to award damages at all, then plaintiffs were not
guaranteed any specific recovery in the first place. So this
amendment, which limits them to “at most, one recovery,”
did not alter any substantive rights or the number of injuries
they sustained. It simply changed the statutory award of

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14 Nos. 25-2185 et al.
damages available to plaintiffs, cabining the discretion of trial
court judges when they fashion the remedy.
The best reading of BIPA Section 20 is that it covers only
remedies. This amendment, then, enacted a “procedural”
change under Illinois law.
C
The plaintiffs raise three additional concerns, but none are
persuasive.
To start, plaintiffs argue that remedial changes should not
be construed as “procedural” amendments at all. They say
this because older cases connected the rule to the “vested
rights” framework of retroactivity, which the Supreme Court
of Illinois has since rejected. See Commonwealth Edison, 749
N.E.2d at 968–72. In particular, plaintiffs dispute reliance on
Dardeen v. Heartland Manor, Inc., which is the most recent case
applying a remedial statute retroactively. In Dardeen, the Su-
preme Court of Illinois held that an amendment repealing a
treble damages provision should be applied retroactively. 710
N.E.2d at 832. The court did so because “[i]t has been well set-
tled for over a century that, prior to judgment, a plaintiff has
no vested right to a particular method of procedure or remedy
such as the treble damages” statute at issue in the case. Id.
Still, the validity of this principle does not hinge on the
vested rights approach or Dardeen. Both Glisson and Perry af-
firm the general principle that remedial changes are proce-
dural, without citing Dardeen. See Glisson, 782 N.E.2d at 257
(“courts can apply retroactively statutory changes to proce-
dural or remedial provisions”); Perry, 106 N.E.3d at 1034
(same). At the least, these cases confirm that changes to special
remedial statutes can be applied retroactively. Perry, 106

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Nos. 25-2185 et al. 15
N.E.3d at 1034 (citing Glisson, 782 N.E.2d at 257). Our holding
that this BIPA amendment applies retroactively, then, does
not hinge on whether Dardeen itself is good law.
We see Dardeen as useful authority confirming the accu-
racy of our Erie prediction. Giovannelli, 164 F.4th at 1055. In
2015, the Supreme Court of Illinois treated Dardeen as binding
precedent, citing it for the “proposition that amendments af-
fecting remedies are procedural.” J.T. Einoder, 28 N.E.3d at
766. It did so even while applying the new Landgraf analysis.
See id. at 765–67. True, the court found Dardeen “inapposite,”
holding the amendment at issue was substantive, and not
“simply procedural,” because it created an entirely new type
of liability. Id. at 766. But it reaffirmed Dardeen’s bottom-line
holding. The similarities between this case and Dardeen—cou-
pled with the J.T. Einoder case’s reiteration of its validity—
confirm that our approach to interpreting this amendment is
on the right track.
Further, plaintiffs argue that this amendment should be
construed as substantive because it “alters the scope of liabil-
ity and the legal consequences of past conduct.” In one artic-
ulation of the Illinois retroactivity test, this court described
substantive rules as those “concerned with directing behavior
outside of the courtroom,” telling regulated parties “to do cer-
tain things or abstain from certain conduct on pain of some
sanction.” Thomas v. Guardsmark, LLC, 487 F.3d 531, 537 (7th
Cir. 2007). Invoking this theme, the plaintiffs contend that the
amendment removed the financial incentive for companies to
stop continuously flouting BIPA.
This argument leads in the wrong direction. All remedial
changes affect behavior outside of the courtroom. Rational
economic actors calibrate their activity by calculating the costs

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16 Nos. 25-2185 et al.
and benefits of immediate compliance with the statute, along
with the severity of potential liability. Taking this argument
too literally would lead us to conclude that changes to statu-
tory damages regimes are always substantive. But the Su-
preme Court of Illinois has long held they are procedural. In
this posture, we side with the state high court’s view that re-
medial changes are procedural. See West, 311 U.S. at 236 (“the
highest court of the state is the final arbiter of … state law.”).
Finally, plaintiffs raise the specter of state constitutional
concerns. The plaintiffs are correct to note that the retroactiv-
ity analysis is not the end of the matter. As Perry explains, the
“temporal reach” of the statute—dictated by whether the
amendment is substantive or procedural—“must be given ef-
fect unless” it would be “constitutionally prohibited” to do so.
106 N.E.3d at 1026.
Nevertheless, the amendment to Section 20 of BIPA raises
no constitutional concerns. Even though Illinois abandoned
the “vested rights” theory for determining retroactivity, it still
uses that phrase to describe certain interests “protected from
legislative interference by [the Illinois] due process clause.”
First of Am. Trust Co. v. Armstead, 664 N.E.2d 36, 39 (Ill. 1996);
see also Martin v. Goodrich Corp., 268 N.E.3d 170, 182 (Ill. 2025).
But it “has been well settled for over a century” in Illinois that
“a plaintiff has no vested right to a particular … remedy.”
Dardeen, 710 N.E.2d at 832. This rule is especially applicable
here, given that damages under BIPA are likely discretionary.
See Cothron, 216 N.E.3d at 929. Moreover, this amendment de-
creases, rather than increases, the monetary penalties BIPA
imposes on private entities. That means the defendants have
not been deprived of any vested rights either. Accordingly,

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Nos. 25-2185 et al. 17
there are no constitutional concerns with applying this statute
retroactively.†
IV
Because the amendment to Section 20 of BIPA constitutes
a remedial change, Illinois courts would have us apply it to
cases pending when it was enacted. A plaintiff who alleges
thousands of claims under BIPA Section 15 is only “entitled
to, at most, one recovery under” Section 20. We hold that this
amendment applies retroactively because it impacts only the
statutory damages available to plaintiffs—it does not change
BIPA’s substantive standards of liability.
The district courts in all three cases erred by holding oth-
erwise. On remand, the district courts may need to reevaluate
how this holding affects other aspects of these cases, includ-
ing subject matter jurisdiction. But for now, it is enough to
note that these courts, and others dealing with similar cases,
must ensure they follow the latest guidance of the legislature
when calculating damages under BIPA Section 20.
R EVERSED AND R EMANDED
† Though amendments to a statute presumptively change the law, Il-
linois courts sometimes apply statutes retroactively when they merely
clarify the law. See People v. Stewart, 215 N.E.3d 752, 758 (Ill. 2022). Because
this case is resolved under the ordinary retroactivity framework, we need
not decide whether this amendment clarified the law.
This choice eliminates our need to address plaintiffs’ arguments about
Illinois separation of powers principles. Even if we reached this point, it
would fail. Cothron interprets Section 15 of BIPA, whereas the amendment
changed Section 20. The legislature did not overturn Cothron, as plaintiffs
contend, because the amendment altered a different part of the statute.

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