Illinois BIPA Legislative Update Regarding Damages

We are writing to inform you of significant legislative developments regarding the Illinois Biometric Information Privacy Act (BIPA) that may impact your operations in Illinois.

Yesterday, the Illinois Senate took a decisive step by passing Senate Bill 2979, aimed at refining the statutory damages outlined in BIPA to a single recovery for each individual under the Act. This bill seeks to address concerns raised by recent legal interpretations, particularly in light of the Illinois Supreme Court’s decision in Cothron v. White Castle, which held that a claim accrues under BIPA each time that an individual’s biometric information or identifier is captured or collected.

Under the current damages provision for BIPA, an individual may be entitled to $1,000 or actual damages for each negligent violation, or $5,000 or actual damages for each reckless or intentional violation. The White Castle decision underscored the urgent need for legislative clarity, whereas it argued that it could be subjected to damages in excess of $17 billion if each of its employee’s time clock scans were found to recklessly or intentionally violate BIPA. Recognizing the potential for such annihilative liability, the Court in White Castle called on the Illinois legislature to act.

With an overwhelming majority vote of 46 to 13, the Senate has demonstrated bipartisan support for this crucial reform, recognizing its importance for businesses across the state. The bill now moves to the Illinois General Assembly’s House of Representatives for further consideration.

Looking ahead, the bill's journey involves scrutiny by the House committee, followed by three readings in the House and a final vote. We anticipate these proceedings to take place before the legislative session concludes in May. Should the bill pass through the House, it will then proceed to the Governor's desk for signature.

We are committed to keeping you informed as Senate Bill 2979 progresses through the Illinois legislature. Our team will monitor developments closely and provide timely updates to ensure you are well-equipped to navigate any changes that may affect your compliance obligations and potential exposure under the Act.

Should you have any questions or require further information, please do not hesitate to reach out to your trusted Seyfarth contact.