Court of Appeal (Ill.) Applies Federal Catch-all SofL to TCPA Claims, Not Shorter State-law SofL

In Wellington Homes, Inc. v. West Dundee China Palace Restaurant, Inc., — N.E.2d —-, 2013 IL App (2d) 120740, 2013 WL 414236 (Ill.App. 2 Dist. 2013), the Illinois Court of Appeal found that the 4-year federal catch-all statute of limitations applies to TCPA actions, not shorter state-court statutes of limitations.

 This interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff.Feb.26, 2010) involves two certified questions: (1) “Does Illinois’ two-year limitations period for a statutory penalty * * * apply to TCPA claims brought in Illinois state courts seeking statutory damages pursuant to [section 227(b)(3) of the TCPA?]” and (2) “If not, what limitations period applies to TCPA claims brought in Illinois state courts?” We answer the first certified question in the negative. As to the second certified question, we conclude that the four-year federal catchall statute of limitations codified at 28 U.S.C. § 1658(a) applies to private TCPA claims filed in Illinois state courts. . . ¶ . . .As plaintiff points out, a number of states have addressed the issue of which statute of limitations applies to TCPA claims brought in state court.FN4 By our count, six states have determined that the four-year federal catchall statute of limitations codified at 28 U.S.C. § 1658(a) applies, and three have determined that a shorter state statute of limitations applies. Compare Sznyter v. Malone, 66 Cal.Rptr.3d 633, 644 (Cal.Ct.App .2007) (holding that the four-year federal catchall statute of limitations applies to TCPA claims in state court), Anderson Office Supply, Inc. v. Advanced Medical Associates, P.A., 273 P.3d 786, 795 (Kan.Ct.App.2012) (same), Worsham v. Fairfield Resorts, Inc., 981 A.2d 24, 33 (Md.Ct.Spec.App.2009) (same), Zelma v. Konikow, 879 A.2d 1185, 1190 (N.J.Super.Ct.App.Div.2005) (same), Stern v. Bluestone, 850 N.Y.S.2d 90 (N.Y.App.Div.2008) (same), rev’d on other grounds, 911 N.E.2d 844 (N.Y.2009), and Jemiola v. XYZ Corp., 126 Ohio Misc.2d 68, 2003–Ohio–7321, 802 N.E.2d 745, at ¶ 7 (Ct.Com.Pl.2003) (same), with Edwards v. Emperor’s Garden Restaurant, 130 P.3d 1280, 1287 (Nev.2006) (per curiam) (holding that state statute of limitations applies to TCPA claims in state court), Weitzner v. Vaccess America Inc., 5 Pa. D. & C.5th 95 (Ct.Com.Pl.2008) (same), and David L. Smith & Associates, LLP v. Advanced Placement Team, Inc., 169 S.W.3d 816, 823 (Tex.Ct.App.2005) (same). ¶ … Having reviewed the out-of-state cases that have addressed the issue of which statute of limitations applies to TCPA claims filed in state court, we conclude that the cases that have applied state statutes of limitations to private TCPA claims are unpersuasive. Not only do they ignore supremacy clause case law that would suggest the opposite con-clusion, but they offer no reasonable explanation for interpreting the statutory language “if otherwise per-mitted by the laws or rules of court of a State” as encompassing state statutes of limitations that are not specifically directed at TCPA claims.