USA – ILLINOIS Trends and Developments Contributed by: Paul Yovanic, Jason Priebe, Ada Dolph and Michael Jacobsen, Seyfarth Shaw LLP
ment of damages. The legislature heeded this call in an effort that culminated in August 2024, when Governor Pritzker signed into law Senate Bill 2979, which amended the BIPA damages provision to limit an aggrieved individual’s dam - ages to a single recovery for the same method of collection. In light of some plaintiffs’ attorneys who saw Cothron as a green light to pursue a “per-scan” damages theory, defendants sought rulings ret - roactively applying the amendment to cases that were filed before it was enacted. Similar to the healthcare and state contractor exemptions, however, courts have been divided on this ret - roactivity issue, as well. For instance, in Gregg v Central Transport LLC, a court in the Northern District of Illinois ruled that the revision applied retroactively from BIPA’s original enactment. As the court explained, in Illinois, there is a presumption that statutory amendments are intended to change existing law, and under this presumption courts must determine whether the change applies retroac - tively or only prospectively. However, this pre - sumption does not apply when the circumstanc - es indicate that the legislature intended to only interpret or clarify the original act. Because the Illinois Supreme Court in Cothron had expressly invited the legislature to clarify its intent, the court in Gregg found that the revision was merely a clarification rather than a substantive change. As a result, the Gregg court treated the amendment as if it had “been in place all along”. In contrast, in Schwartz v Supply Network, Inc., another court in the Northern District of Illinois found that the amendment constituted a change, not a clarification, and could not be applied retroactively. While acknowledging that the legislature can explicitly indicate its intent to
merely clarify the law in the statutory text, the court concluded that “nothing in the text of the amendment indicates that it is merely clarifying” BIPA. Illinois Genetic Information Privacy Act (GIPA, 410 ILCS 513/ et seq.) The Illinois Genetic Information Privacy Act (GIPA), enacted a decade before BIPA, remained a seldom-cited law until 2023. Since then, over 100 class action lawsuits have been filed under GIPA. GIPA was designed to protect individuals who are hesitant to seek genetic testing due to con - cerns that the results could be disclosed without consent or used discriminatorily. Following the passage of the Genetic Information Nondiscrimi - nation Act (GINA) in 2008, Illinois amended GIPA to align with federal law, ensuring that covered entities treat genetic information in accordance with GINA’s requirements. GIPA’s definition of “genetic information” was also revised to align with the meaning set out in HIPAA, as speci - fied in 45 C.F.R. 160.103. This federal regulation defines genetic information as data related to: • an individual’s genetic tests; • genetic tests of the individual’s family mem - bers; • the manifestation of disease or disorder in the individual’s family members; or • any request for, or receipt of, genetic servic - es, or participation in genetic-related clini - cal research by the individual or their family members. GIPA places various restrictions on employers, such as prohibiting: • the request for genetic information as a con - dition of employment;
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