Bonilla v. Ancestry.Com Operations, Inc.

             IN THE UNITED STATES DISTRICT COURT                        
                NORTHERN DISTRICT OF ILLINOIS                           
                      EASTERN DIVISION                                  
SERGIO BONILLA, et al.,                                                 
                              )                                         

                              )                                         
                     Plaintiffs,                                        
                              )                                         

                              )                                         
              v.                                                        
                              )    No.  20 C 7390                       

                              )                                         
ANCESTRY.COM OPERATIONS INC., a                                         
                              )    Judge Virginia M. Kendall            
Virginia Corporation; ANCESTRY.COM                                      
                              )                                         
INC., a Delaware Corporation;                                           
ANCESTRY.COM LLC, a Delaware  )                                         
Limited Liability Company; and DOES 1  )                                
through 50, inclusive,        )                                         
                              )                                         
                     Defendants.                                        
                              )                                         

                              )                                         

               MEMORANDUM OPINION AND ORDER                             
   Plaintiff  Sergio  Bonilla  learned  that  Defendants  Ancestry.com  Operations  Inc., 
Ancestry.com  Inc., and Ancestry.com LLC (collectively, “Ancestry”) maintain a  searchable 
database for high-school yearbooks, including one in which his image is contained. Upon learning 
this, Bonilla sued Ancestry for violating the Illinois Right of Publicity Act (“IRPA”) and unjustly 
enriching itself by using his likeness to solicit Ancestry’s paid products and services without his 
consent. Ancestry moved for summary judgment asserting that his claim is time-barred. (Dkt. 60). 
This Court agreed and granted the motion. (Dkt. 96). Bonilla moves for reconsideration based on 
an intervening Illinois Supreme Court decision, Tims v. Black Horse Carriers, Inc., No. 127801, 

2023 WL 1458046

 (Ill. Feb. 2023). (Dkt. 123). For the following reasons, the motion is denied. 
(Id.)                                                                     
                        BACKGROUND                                      
   Ancestry is a genealogy company that operates Ancestry.com, a public website through 
which users can search for records in different databases. (Dkt. 62 ¶¶ 1–2). One of the searchable 
databases is Ancestry’s “U.S., School Yearbooks, 1900-1999,” referred to as the “Yearbook 

Database.” (Id. ¶2). This database collects yearbook records, about 47 million individual records 
in total from Illinois schools and universities.1 (Id. ¶2). Ancestry offers a fourteen-day “free trial” 
to new subscribers for its products and various subscription plans for paying customers. (Dkt. 1 
¶¶ 5, 7). The company also sends promotional emails to users who have signed up for a free 
account but not a paid subscription; these promotional messages contain “hints” corresponding to 
yearbook records Ancestry believes may be related to the potential subscriber. (Dkt. 57 at 2).  
   On June 27, 2019, Ancestry began hosting the 1995 Central High School, from Omaha, 
Nebraska, yearbook with Bonilla’s image, in its Yearbook Database. (Dkt. 62 ¶ 4; Dkt. 1 at 9). 
Since then, any visitor to Ancestry.com can search for the yearbook, download the record in full, 
view information about Bonilla, and observe a picture of the original document. (Dkt. 62 ¶ 5). 

Ancestry has also used the record to populate its promotional emails to potential customers, though 
has not otherwise displayed the yearbook information to its users. (Id.; Dkt. 57 at 2).  
   Upon learning that his old yearbook was on Ancestry, Bonilla filed a complaint on 
December 14, 2020, against the defendants, alleging a violation of the Illinois Right of Publicity 
Act (“IRPA”) (Count I); a violation of the Illinois Consumer Fraud and Deceptive Business 
Practices Act (Count II); intrusion upon seclusion (Count III); and unjust enrichment (Count IV). 
(Dkt. 1 at 20–23); see also 

28 U.S.C. § 1332

. Ancestry moved to dismiss for lack of jurisdiction 



1 Ancestry is able to accomplish this feat, in part, by paying a licensing fee to third parties, such as PeopleConnect, 
Inc., for the use of yearbook names and likenesses. (Dkt. 69 at 9).       
and failure to state a claim. (Dkt. 30); see also Fed. R Civ. P. 12(b)(2), (b)(6). This Court granted 
the motion for Counts II and III and denied it for Counts I and IV. (See generally Dkt. 57).  
   Shortly thereafter, Ancestry moved for summary judgment, arguing that Bonilla’s claim 
was time-barred by IRPA’s statute of limitations. (Dkt. 61). Before this Court decided the motion, 

Bonilla filed an amended complaint, adding two new plaintiffs, John Braundmeier and Kevin 
Wallace. This Court then granted Ancestry’s motion for summary judgment, concluding that the 
statute of limitations had run on Bonilla’s claim. (Dkt. 96). The plaintiffs together now move for 
reconsideration of this Court’s decision, (id.), in light of Tims v. Black Horse Carriers, Inc., No. 
127801, 

2023 WL 1458046

 (Ill. Feb. 2, 2023), an Illinois Supreme Court opinion holding that the 
statute of limitations for the Biometric Information Privacy Act (“BIPA”) is five years. (Dkt. 123).  
                         DISCUSSION                                     
   A motion for reconsideration is “granted only in rare circumstances.” Caine v. Burge, 

897 F. Supp. 2d 714, 716

 (N.D. Ill. 2012). A court may reconsider a prior ruling when there has been 
a “controlling or significant change in the law.” Bank of Waunakee v. Rochester Cheese Sales, 

Inc., 

906 F.2d 1185

 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 

99 F.R.D. 99, 101

 (E.D. Va. 1983)). But no such “controlling or significant change” has occurred 
here.                                                                     
   Previously, this Court held that a one-year statute of limitations governed IRPA claims. 
(See generally Dkt. 96). It explained,                                    
   While the IRPA does not expressly provide a statute of limitations, this Court has 
   already determined the limitations period is one year. The reasons stated in its prior 
   opinion, Toth-Gray v. Lamp Liter, Inc., No. 19-cv-1327, 

2019 WL 3555179

, at *4 
   (N.D. Ill. July 31, 2019), are still relevant. The Illinois Supreme Court has never 
   addressed the appropriate length of time to file a claim under the law. Martin v. 
   Living Essentials, LLC, 

653 F. App’x 482

, 485–86 (7th Cir. 2016). Without 
   guidance from the highest state court, federal courts sitting in diversity look to state 
   appellate courts. Ludwig v. United States, 

21 F.4th 929, 932

 (7th Cir. 2021). In Blair 
   v. Nevada Landing Partnership, the Illinois Appellate Court concluded that “since 
   the  Right  of  Publicity  Act  completely  supplanted  the  common-law  tort  of 
   appropriation of likeness … the one-year statute of limitations that pertained to the 
   common-law  tort”  governs.  

859 N.E.2d 1188, 1192

  (Ill.  App.  Ct.  2006). 
   Furthermore, the weight of federal-court authority—both then and now—advises 
   that Blair’s one-year statute of limitation governs. … [B]ecause Blair is “the only 
   on-point decision,” the Court will continue to follow its guidance. Toth-Gray, 

2019 WL 3555179

, at *4.                                                   

(Id. at 4–5) (footnote omitted).                                          
   The Illinois Supreme Court’s decision in Tims v. Black Horse Carriers, Inc. does not cast 
doubt on this Court’s prior opinion. 

2023 WL 1458046

. In Tims, the plaintiff sued his former 
employer for allegedly violating the BIPA by collecting his biometrics without consent. Id. at *1. 
His employer moved to dismiss the complaint as untimely because it was filed more than one year 
after the cause of action accrued, and the one-year statute of limitations from Illinois Code § 13-
201 applied. Id. at *2. The circuit court denied the motion, holding that the appropriate limitations 
period was five years under Illinois Code § 13-205. Id. The circuit court then certified the question 
to the appellate court of which limitations period governed. Id. The appellate court answered the 
question and disagreed with the circuit; the one-year period applies “where ‘publication or 
disclosure of biometric data is clearly an element’ of the claim.” Id. (quoting Tims v. Black Horse 
Carriers, Inc., 

184 N.E.3d 466, 473

 (Ill. App. Ct. 2021)). The plaintiff appealed.  
   The Illinois Supreme Court granted certiorari and reversed. See generally Tims, 

2023 WL 1458046

. Two provisions of the Illinois Code are relevant: § 13-201 and § 13-205. Section 13-201 
provides that “[a]ctions for slander, libel or for publication of matters violating the right of privacy, 
shall be commenced within one year next after the cause of action accrued.” Id. at *4 (quoting 735 
ILCS 5/13-201). Section 13-205 is broader: “actions on unwritten contracts, expressed or implied, 
… and all civil actions not otherwise provided for, shall be commenced within 5 years next after 
the cause of action accrued.” Id. (quoting 735 ILCS 5/13-205). Reading these provisions together 
creates a general rule: when the law does not specify a statute of limitations, “the five-year 
limitations period applies” unless the suit is one for “slander, libel or for publication of a matter 
violating the right of privacy.” Id. The BIPA sets out rules for biometric identifiers and biometric 
information. Id. at *6. The text, coupled with the “purposes to be achieved by the statute,” indicate 

that the law does not regulate the “publication” of biometric information. And because the BIPA 
does not involve the “publication of matters violating the right of privacy,” the five-year statute of 
limitations governs. Id.                                                  
    Unlike the BIPA, the IRPA protects the publication of matters related to the right of 
privacy and, thus, falls under the one-year statute of limitations. Simply consider the law’s name. 
The legislature titled the statute the “Illinois Right of Publicity Act.” That the law protects the 
publication of private information is immediately apparent. The legislative text teaches the same 
lesson. Individuals are afforded the “right to control and to choose whether and how to use an 
individual’s identity for commercial purposes.” 765 ILCS 1075/30. Information related to “an 
individual’s identity” is certainly a matter related to “the right of privacy.” And the right to 
“control” and “use” an identity “for commercial purposes” ties the right to “publication.”2 The 

entire reason why companies like Ancestry acquire personal information is to disseminate it 
through a profitable means. Moreover, as Blair noted, “the Right of Publicity Act completely 
supplanted the common-law tort of appropriation of likeness,” a quintessential privacy right. 

859 N.E.2d at 323

. Tims only confirms this understanding by reiterating the general rule that most civil 
suits must be brought within five years unless the suit is one for “slander, libel or for publication 


2 It is true, as Bonilla argues, that a longer statute of limitations might further the IRPA’s purpose. But it is almost 
always the case that a longer statute of limitations furthers a law’s purpose. The longer a plaintiff has to bring a claim, 
the more claims are brought, and the more likely defendants (and citizens) are to follow the law, fearing potential 
lawsuits. Statutes of limitations do not, however, generally exist to further a statute’s purpose. They ensure fairness to 
defendants, provide finality for all parties, and promote the efficient use of judicial resources. Bonilla has not 
demonstrated why a longer statute of limitations here would negate these countervailing values.  
of a matter violating the right of privacy.” 735 ILCS 5/13-201. IRPA claims fit neatly into the 
“unless” clause. They must be brought within one year of their accrual. Bonilla failed to do so and, 
thus, is (still) time-barred from bringing his claim. 
                                 CONCLUSION 
    For these reasons, the Plaintiffs’ motion for reconsideration is denied. (Dkt. 123). 

                                                cD   oo 
                                   A    renin          dlace 
                                                     A) LE   ee   
                                  Viyotnid M. Kebrdall 
                                  Jnjted/States District Judge 
Date: May 23, 2023