Massage Envy: Are All Vouchers Now Coupons Under CAFA?

Class action litigators who practice in the BIPA space received clarity in April 2026 following the Seventh Circuit Court of Appeals’ decision in Clay v. Union Pacific Railroad Co. (“Clay”).[1] In a concise 17-page opinion, the court held that the Illinois General Assembly’s 2024 BIPA amendments, which established that BIPA damages should be evaluated on a per-person basis, should be applied retroactively to cases pending at the time of enactment. This decision is a setback for plaintiffs’ counsel who had invested heavily—in time and resources—in BIPA litigation as the next major vehicle for class action recovery. An overview of how we got here is below followed by a summary of the decision. History of BIPA In 2008, Illinois enacted the Biometric Information Privacy Act to respond to the “increasing use of biometric data in commerce.”[2] BIPA was intended to give individuals the right to control their biometric identifiers and information while providing a right of action and meaningful damages against entities that mishandled them. But one question quickly came to the fore: was a new claim accruing each and every time an employer collected the same information from the same employee? As one defendant argued, such a per-scan theory of claim accrual would create “potentially crippling financial liability” for employers who violate BIPA by “repeatedly collecting the same information in the same way.”[3] Recognizing the question’s importance, the Seventh Circuit, in Cothron v. White Castle System, Inc., certified the question of claim accrual to the Supreme Court of Illinois. During briefing, the defendant invoked Section 20—which sets the damages a plaintiff can recover “for each violation”—to dissuade the court from adopting its per-scan reading of Section 15, citing potentially astronomical awards. In a 2023 decision, the Illinois Supreme Court sided with the plaintiffs and held that pursuant to Section 15, claims accrue “with every scan or transmission” of biometric information.[4] The Illinois Supreme Court acknowledged the prospect of “potentially excessive damage awards,” but noted that concern is “best addressed by the legislature.”[5] Accordingly, the court concluded its opinion by “respectfully suggest[ing] that the legislature review these policy concerns and make clear its intent regarding the assessment of damages under the Act.”[6] The Illinois General Assembly Acts Less than a year and a half after Cothron, the Illinois General Assembly heeded the court’s call and passed an amendment that added two clauses to Section 20. The first provided 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 Section 15 has committed a single violation…for which the aggrieved person is entitled to, at most, one recovery under this Section.[7] The second added the same operative language for violations of Section 15(d).[8] Going forward, it was now clear that only “one recovery” was available per person (regardless of how many scans there were), transforming potentially excessive damages into more modest ones. But the legislature left one question open: should the amendments apply retroactively to cases already in progress? The Clay Decision According to the Seventh Circuit, Illinois courts have a simple decision tree when it comes to assessing retroactivity. First, did the legislation expressly indicate the temporal reach of the amendment? If yes, case closed. If not, then the court must assess whether the amendment in question constituted a substantive or procedural change to the law. Under Illinois law, a substantive amendment “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.”[9] Conversely, a procedural 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.”[10] While the Clay court acknowledged that the distinction between the two can, in many different contexts, “be unclear,”[11] the court had no trouble deciding the case at bar for one simple reason: the “amendment to BIPA Section 20 is a remedial change,”[12] and “the Supreme Court of Illinois treats remedial changes as procedural, not substantive.”[13] Two features of the amendments were critical: First, the legislature located the amendments in Section 20, which governs liquidated damages, rather than Section 15, which sets the substantive standards for liability under the Act. Second, the amendments’ plain language “focuses on remedies,”[14] indicating that an “aggrieved person is entitled to, at most, one recovery under this Section.”[15] The court’s analysis was straightforward. For those BIPA litigants involved in currently pending cases, the litigation terrain just got bumpier for plaintiffs and more favorable for defendants. Plaintiffs’ settlement leverage in these cases has been significantly reduced. Nevertheless, with enough putative class members, BIPA cases could still be worth bringing, even if they are no longer as valuable. We will continue to monitor the ramifications of this decision. Notes: [1] No. 25-2185 (7th Cir. Apr. 1, 2026). [2] Id. at 3. [3] Id. [4] Cothron v. White Castle System, Inc., 216 N.E.3d at 921 (Ill. 2023). [5] Id. at 929. [6] Id. [7] 740 ILCS 14/20(b). [8] Id. at 14/20(c). [9] Perry v. Dept. of Fin. & Prof. Regulation, 106 N.E.3d 1016, 1034 (Ill. 2018). [10] Id. [11] Clay at 8. [12] Id. at 9. [13] Id. at 8. [14] Id. at 10. [15] 740 ILCS 14/20(b), (c) (emphasis added).

The International Legal Finance Association (ILFA) submitted a letter this week to the Civil Procedural Rules Committee of the Supreme Court of Pennsylvania, highlighting the benefits of litigation funding and the risks associated with the mandatory disclosure of funding. The Supreme Court of Pennsylvania is considering a rule that would require mandatory disclosure at the outset of litigation of third-party funding agreements where the funder has a right to control or influence the litigation. ILFA’s letter emphasized that the vast majority of courts—including Pennsylvania courts—have declined to require discovery of funding agreements, in part because such disclosure would breach work product and attorney-client privilege protections. The ILFA letter also emphasized that the leading studies of disclosure by state courts—performed in Delaware and Texas—both concluded that third-party funding does not present significant ethical issues warranting automatic disclosure of funding at the outset of litigation. The full text of ILFA’s letter is available here .