On Friday, Aug. 15, Illinois Governor J.B. Pritzker signed Senate Bill 328 (“SB 328”), which permits toxic tort lawsuits against companies that operate in Illinois even in situations where the defendant company and individual plaintiffs are based or reside in other states. In other terms, the law allows Illinois courts to exercise general personal jurisdiction over what would otherwise be considered a foreign defendant. In practice, an injured individual may now sue in Illinois for toxic exposure which occurred outside of Illinois so long as the defendant company is registered to do business in Illinois. Given the changes implemented by SB 328, Illinois will now be the second state in the country, behind Pennsylvania, with a statute providing for consent jurisdiction. The approach is closely tied to the ruling in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), which held that a state can exercise personal jurisdiction over a foreign company based on business registration in the forum state.
Changes and Impact from Senate Bill 328:
The law changes Illinois from a specific jurisdiction state to a general jurisdiction state in toxic tort cases. A foreign defendant will be seen as consenting to general jurisdiction if one or more of the following circumstances applies:
- The foreign defendant is registered or registers to do business in Illinois after the effective date of the legislation;
- For a foreign defendant already registered to do business in Illinois at the time the law takes effect, consent to general jurisdiction is effective on the due date of the next annual report;
- For a foreign defendant not currently registered to do business in Illinois, they are “deemed to have consented to general jurisdiction… as if they were registered to do business in [Illinois]…such general jurisdiction commences upon committing an act constituting the transactions of business in [Illinois] without authority at any time after the effective date of this amendatory Act…and remains effective for 180 days following the committing of each and every such act.” Sec. 13.70(c-5).
Importantly, such changes only apply to a foreign defendant sued in actions alleging injury or illness resulting from exposure to a toxic substance and where an Illinois court has specific, personal jurisdiction over at least one co-defendant. The meaning of “toxic” substance is defined as “any substance (other than a radioactive substance) which has the capacity to produce bodily injury or illness to man through ingestion, inhalation, or absorption through any body surface,” which is consistent with The Uniform Hazardous Substance Act of Illinois. 430 ILCS 35/2-5.
The Future of Toxic Tort Litigation
Given that SB 328 is deemed immediately effective, the law will apply to foreign businesses that register to do business in Illinois at any time after August 15, 2025. For companies that are already registered, the law will apply on the next date their annual report is due after August 15, 2025. Companies operating in Illinois or considering expanding business into Illinois will need to consider both the business and legal implications of a changing landscape in jurisdictional exposure.
