Illinois Poised for a Major Expansion of Personal Jurisdiction in Toxic‑Exposure Cases
Personal jurisdiction is the constitutionally constrained power of a court to bring a party into its adjudicative process. It requires certain minimum contacts between the defendant and the forum state. General jurisdiction encompasses all claims (whether or not related to the defendant’s forum contacts) and, under long-standing Supreme Court precedent, arises only where the defendant’s contacts with the state are so continuous and systematic that the defendant is essentially “at home” in the forum state. In the case of corporations, absent exceptional circumstances it arises only where the defendant is incorporated or maintains its principal place of business. Specific jurisdiction encompasses only claims that are related to the defendant’s forum contacts.
Through the passage of Senate Bill 328, the Illinois Legislature intends to create a third form of personal jurisdiction - consent by registration - under which foreign corporations are subject to personal jurisdiction for injuries unrelated to Illinois. Governor Pritzker has until August 29, 2025 to either sign or veto the bill - and if he does neither the bill will automatically become law.
SB328
SB 328 amends the Illinois Code of Civil Procedure (735 ILCS 5/2‑209) and the Business Corporation Act (805 ILCS 5/13.20, 13.70), to provide that any foreign corporation that registers or continues to maintain the authority to transact business in Illinois is deemed to consent to general personal jurisdiction in Illinois courts. Corporations that do not register but transact business in Illinois are deemed to consent to general jurisdiction for 180 days following each transaction of business.
Corporations registering after the bill’s effective date are subject to consent immediately. Corporations already registered consent upon the due date of their next annual report, whether or not they file it. Consent ends only upon formal withdrawal of registration.
This expanded jurisdiction applies solely in actions alleging injury or illness from exposure to a “toxic substance” as defined by the Illinois Uniform Hazardous Substances Act: “any non‑radioactive substance capable of causing bodily injury or illness through ingestion, inhalation, or absorption.”
Further, the expanded jurisdiction applies only if at least one co-defendant is subject to specific jurisdiction under the Illinois Long-Arm Statute - that is, there must be at least one defendant whose Illinois conduct gives rise to the claim.
Legal Challenges
SB328 will drastically change the personal jurisdiction landscape in Illinois, opening up foreign corporations registered to do business here to jurisdiction for wholly unrelated claims. The bill has received strong criticism from business groups and will be subject to extensive challenge if signed into law.
The proposed statutory changes - on their face - appear inconsistent with long-standing law concerning the constitutional requirement of minimum contacts. While the U.S. Supreme Court upheld Pennsylvania’s consent-by-registration regime in Mallory v. Norfolk Southern Railway Co., SB328 arguably goes further than the Pennsylvania statute - in particular by subjecting unregistered corporations to 180-day consent windows based on unrelated business transactions in Illinois.
The manner in which the Legislature passed the bill is also open to criticism and potential legal challenge. SB328 was introduced as a bill on completely separate topics, only to be transformed into a jurisdiction expansion bill at the end of the process. The Legislature thereby arguably improperly avoided the “three readings” mandated by the Illinois Constitution.
Finally, assuming the statute takes effect and is sustained, defendants will challenge the specific application in individual cases. For example, plaintiffs will have to find a defendant subject to specific jurisdiction in order to take advantage of the expanded general jurisdiction against everyone else. If the claim against that Illinois defendant is dismissed, the court should lose personal jurisdiction over the other defendants.
Takeaways
While small companies might consider simply withdrawing from Illinois to avoid the potential expanded jurisdiction for unrelated claims, that is not a viable option for larger entities like railroads, manufacturers and industrial contractors. Those companies should evaluate their claim history in Illinois and strategize with their counsel on how to resist unwarranted jurisdiction in particular cases. They should also work with their industry groups to coordinate legal/constitutional challenges to SB328 - if it becomes law.