Extracted from Law360
On May 31, the Illinois General Assembly passed S.B. 328, purporting to broaden Illinois courts' jurisdictional reach over out-of-state corporations in toxic tort litigation.
The bill provides that any entity registering to do business in Illinois — or that was previously registered but continues to transact business in Illinois, with or without authority — consents to jurisdiction in the state for any action alleging injury or illness resulting from exposure to substances defined as "toxic" under the Illinois Uniform Hazardous Substances Act.
Consent to such general jurisdiction terminates only upon formal corporate withdrawal from the state.
S.B. 328 is presented as a measure aimed at facilitating recovery in toxic tort cases, but the legislation raises significant constitutional concerns for defendants.
Expanded Consent-Based Jurisdiction in Toxic Torts
S.B. 328 amends the Illinois long-arm statute and the Business Corporation Act.[1]
Under the new law, a foreign corporation is considered to have consented to general personal jurisdiction in Illinois for certain toxic substance exposure actions if the corporation either registers to do business or transacts business within the state without registering — as long as at least one co-defendant is otherwise subject to specific personal jurisdiction.
General personal jurisdiction allows a court to hear any claim against a company even when the underlying conduct happened elsewhere, but only if the company is essentially at home in the state — usually where it is incorporated or has its main office.
For existing registrants, consent begins upon the deadline for filing the next annual report, regardless of whether the company files its annual report. For unregistered companies, the law establishes a so-called tail period of consent lasting 180 days after any business activity conducted in Illinois.
S.B. 328 is limited on its face to claims resulting from exposure to "toxic substances" as defined by the Illinois Uniform Hazardous Substances Act, but that definition encompasses a wide range of materials, including chemicals, pharmaceuticals, plastics, food additives, cosmetics and industrial products.
Notably, the statute permits Illinois courts to assert general personal jurisdiction even when the underlying claim has no meaningful connection to the state, so long as one co-defendant is subject to specific personal jurisdiction in Illinois.
Consider the following scenario: A manufacturing plant headquartered and incorporated in Texas that performs all manufacturing in Texas is sued in Illinois for allegedly exposing a Texas resident to a toxic chemical used during manufacturing in Texas.
The Texas company ships a limited number of products into Illinois — products that are unrelated to the plaintiff's claims. The plaintiff brings suit in an Illinois court. The complaint also names a co-defendant distributor with business operations in Illinois that is properly subject to jurisdiction in the state but has no meaningful liability in the lawsuit.
Under S.B. 328, a plaintiff may argue that the Texas company is subject to general personal jurisdiction in Illinois, despite the exposure and alleged injury having occurred entirely out of state, because it registered to do business — or conducted business without registering — and a co-defendant is already within the court's jurisdiction.
Due Process and Federal Constitutional Concerns
S.B. 328's approach to consent-based jurisdiction raises profound constitutional concerns, particularly under the due process clause of the Fourteenth Amendment.
The U.S. Supreme Court has consistently held that the exercise of general personal jurisdiction must comport with traditional notions of fair play and substantial justice — standards deeply rooted in the foundational 1945 decision in International Shoe Co. v. Washington.
Under this standard, courts may exercise general personal jurisdiction over a corporation only when its activities within the state are so continuous and systematic that it is essentially at home there, typically limiting jurisdiction to the company's state of incorporation or principal place of business.
The Supreme Court has underscored these limitations subsequent to International Shoe, cautioning against an expansive interpretation that would allow corporations to be haled into court based solely on routine business operations within a state.
The court has reinforced that mere business activities in the state — even substantial ones — do not confer general personal jurisdiction unless they establish the state as the corporate entity's de facto home.
Under S.B. 328, jurisdiction would apply broadly not only to any registered corporation, but also to unregistered corporations that merely transact business in Illinois, for up to 180 days after their last business activity in the state. This expansive implied-consent mechanism significantly diverges from established Supreme Court precedent, which strictly limits general jurisdiction to a corporation's home state.
Moreover, this retroactive application component of S.B. 328 intensifies due process concerns. The statute applies to companies that were registered in Illinois before the law's effective date, meaning courts may assert jurisdiction based on a company's continued registration, even if the act of registering occurred before enactment.
And because jurisdictional statutes are generally considered procedural, litigants may attempt to apply S.B. 328 in cases involving pre-enactment injuries, further raising concerns about its retroactive effect.
Historically, courts have treated retroactive jurisdictional statutes skeptically because they undermine parties' reasonable expectations and ability to anticipate litigation risk. S.B. 328's potential retroactivity introduces significant constitutional vulnerability.
Dormant Commerce Clause Concerns
S.B. 328 may also raise constitutional issues under the dormant commerce clause by imposing disproportionate litigation exposure on out-of-state businesses based solely on their registration status or commercial activity in Illinois, but only in the context of toxic tort claims.
The statute effectively extends personal jurisdiction to out-of-state businesses when a co-defendant is already subject to suit in Illinois — creating a claim-specific jurisdictional hook unavailable in other civil litigation contexts.
While states retain broad authority to regulate access to their courts, the dormant commerce clause prohibits state laws that either (1) discriminate against interstate commerce; or (2) impose undue burdens on interstate commerce in relation to any local benefits. S.B. 328 arguably does both.
The bill singles out a class of out-of-state corporate defendants — defendants that deal with hazardous chemicals — for expanded jurisdictional reach based on conduct that may have occurred entirely outside Illinois.
In doing so, it imposes a burden on interstate commerce that is not applied in other categories of civil litigation. Moreover, the statute's selective application to toxic tort claims invites forum shopping and increases the risk of Illinois becoming a magnet for out-of-state litigation, clogging up the court system.
These effects illustrate how S.B. 328 may violate the dormant commerce clause not just by discriminatorily targeting a subclass of national business, but also by imposing litigation burdens that are clearly excessive in relation to the statute's local benefits. Because S.B. 328 discourages companies from transacting business in Illinois due to the risk of being haled into court for claims with minimal forum connection, it may operate as a de facto barrier to interstate commerce.
The state may assert an interest in protecting residents from toxic exposures, but that interest must be balanced against the statute's asymmetrical, claim-specific burdens on national commercial actors — particularly where its jurisdictional framework departs from long-held traditional principles of personal jurisdiction.
The Measure's Impact
Under the example described above with a Texas company being sued in Illinois court, a plaintiff might argue that the Texas company is subject to Illinois jurisdiction under S.B. 328's amended language. By applying this scenario to hundreds or thousands of similarly situated plaintiffs, S.B. 328 could effectively invite a nationwide wave of toxic tort litigation into Illinois courts, based on minimal connections to the forum.
That is an absurd result that will no doubt lead to clogged courts in Illinois with purely foreign matters. According to the Illinois Policy Institute, S.B. 328 could further encourage so-called litigation tourism, attracting more plaintiffs seeking advantageous venues for toxic tort litigation.[2]
Conclusion
If lawsuits arise, businesses should consider their jurisdictional defenses under existing Supreme Court precedent and closely track pending constitutional challenges to the statute.
S.B. 328 has the potential to alter Illinois' approach to personal jurisdiction in toxic tort cases. If the legislation is enacted, defense counsel should be considering litigation strategies for jurisdictional issues when foreign defendants are sued.
[1] 735 ILCS 5/2-209 and 805 ILCS 5/1.01 et seq., respectively.
[2] Joe Tabor, Lawmakers Just Passed 2 Bills Making Illinois Even Worse for Business, Ill. Pol'y Inst. (June 12, 2025), https://www.illinoispolicy.org/lawmakers-just-passed-2-bills-making-illinois-even-worse-for-business/.