Illinois Governor Signs Senate Bill 328, Further Stacking the Deck Against Defendants in Toxic Tort Litigation, Part 4

Analyzing Public Act 104-0352

Having examined the background leading to Illinois Senate Bill 328 (now Public Act 104-0352), today we focus on the changes made by enactment of the bill. PA 104-0352 amends 735 ILCS 5/2-209, the Illinois long-arm statute. Specifically, effective August 15, 2025, the long-arm statute now provides that a foreign business corporation is subject to general jurisdiction if it consents to general jurisdiction in Illinois in accordance with Section 13.20(b) or Section 13.70(c-5) of the Illinois Business Corporation Act (“BCA”); but only if 1) the lawsuit alleges injury or illness resulting from exposure to a substance defined as toxic under the Illinois Uniform Hazardous Substances Act (“UHSA”); and 2) jurisdiction is proper as to one or more co-defendants under subsection (a) of the long-arm statute.

If faced with the issue of whether consent general jurisdiction exists under the amended long- arm statute, we suggest conducting the following analysis:

1. Is the defendant a foreign business corporation;
2. Does the lawsuit allege injury or illness resulting from exposure to a substance defined as “toxic” by the UHSA;
3. Did the defendant consent to general jurisdiction under 805 ILCS 5/13.20(b) or 805 ILCS 5/13.70(c-5);
4. Is the consent to general jurisdiction effective; and
5. Is at least one co-defendant subject to jurisdiction under subsection (a) of the long-arm statute.

Only if you answer yes to all five questions should consent general jurisdiction exist.

Foreign Business Corporations 

Beginning with the first question, the amendment to the long-arm statute states that it applies only to foreign business corporations. 735 ILCS 5/2-209(b)(5). In Illinois, foreign business corporations are governed by Article 13 of the Illinois Business Corporation Act. Based on the plain language of the amendment, it does not seem to apply to other types of foreign entities, such as limited liability companies or partnerships. Foreign limited liability companies and foreign partnerships are governed by separate laws, namely Article 45 of the Limited Liability Company Act and Article 11 of the Uniform Partnership Act, respectively. Accordingly, if a plaintiff’s attorney attempts to argue that a foreign entity other than a business corporation is subject to consent general jurisdiction, it will be important to argue that Section 209(b)(5) does not apply to such entities. Under Illinois law, courts will not depart from the plain language of a statute if the language is clear and unambiguous.

Substances Defined as “Toxic’ by UHSA

Next, we must determine what is considered toxic under the UHSA. According to the Act, “toxic” means 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. 430 ILCS 35/2-5. The UHSA does not provide any examples of a toxic substance. Moreover, there is a dearth of case law interpreting that term either as used in the UHSA or the federal Hazardous Substances Act. However, the UHSA’s definition of “hazardous substance” includes any substance that is toxic. There are court opinions discussing what constitutes a hazardous substance under the UHSA and the related Federal Hazardous Substances Act. See, Lichon v. Aceto Chem. Co., 182 Ill. App. 3d 672 (1st Dist. 1989); In re T.D., 115 Ill. App. 3d 872 (2d Dist. 1983); Miles v. S.C. Johnson & Son, No. 00 C 3278, 2002 U.S. Dist. LEXIS 22695 (N.D. Ill. Nov. 22, 2002). Moreover, any attorney that has defended toxic tort litigation should be able to predict the arguments plaintiffs’ attorneys will make to characterize various substances as “toxic.” 

Consent Under the Business Corporation Act

The next question is whether the defendant consented to general jurisdiction under the Illinois Business Corporation Act (“BCA”). PA 104-0352 amended two sections of the BCA. First, pursuant to 805 ILCS 5/13.20(b), a corporation that obtains or continues to maintain the right to transact business in Illinois consents to the exercise of general jurisdiction in Illinois. A corporation obtains the right to transact business by filing an Application for Authority to Transact Business in Illinois.

Under Section 13.20(b), a corporation consents to general jurisdiction by registering to do business in Illinois at any time following the effective date of PA 104-0352 (August 15, 2025). A corporation that previously registered to do business in Illinois consents to general jurisdiction on the next date after August 15, 2025 on which the corporation’s annual report filing is due, regardless of whether or not the corporation then files the report. As an example, if a foreign corporation was registered to do business in Illinois prior to August 15, 2025, and its next annual report is due on November 1, 2025, the corporation will be deemed to have consented to general jurisdiction on November 1st, even if the corporation does not file the report.

PA 104-0352 also amended 805 ILCS 5/13.70. Under subsection (c-5), a foreign corporation that transacts business in Illinois without authority is deemed to have consented to general jurisdiction to the same extent as if it were registered to do business in Illinois. In this situation, consent to general jurisdiction commences upon committing an act constituting the transaction of business in Illinois without authority at any time after August 15, 2025. The consent remains effective for 180 days following the commission of each and every such act.

Subsection (c-5) raises the question of what constitutes the transaction of business in Illinois. There are multiple court opinions that have addressed this issue. See, Subway Restaurants v. Riggs, 297 Ill. App. 3d 284 (1st Dist. 1998); St. Louis Hills Urological Associates, Inc. v. Nicoletti, 153 Ill. App. 3d 1044 (5th Dist. 1987); Charter Finance Co. v. Henderson, 60 Ill. 2d 323 (Ill. 1975); Europaper B.V. v. Integrated Material Mgmt. Serv., No. 01 C 211, 2003 U.S. Dist. LEXIS 12410 (N.D. Ill. July 16, 2003). The Business Corporation Act also expressly identifies certain acts that do not constitute the transaction of business by foreign corporations. 805 ILCS 5/13.75.

Timing of Consent

If the defendant has taken one of the actions identified in Section 13.20(b) or Section 13.70(c-5), you must determine if the consent is effective at the time of contesting jurisdiction. If the defendant has obtained authority to transact business in Illinois, then the consent appears to be effective so long as the defendant maintains that authority.

If the defendant has not obtained authority to transact business in Illinois, but previously registered to do business in the state, recall that consent is not effective until the next date after August 15, 2025 on which the corporation’s annual report filing is due. Therefore, a defendant in this situation has a window of time during which it will not be deemed to have consented to general jurisdiction. Unfortunately, on the deadline for filing its annual report, the defendant will be deemed to have consented to general jurisdiction regardless of whether it actually files the report.

Section 13.20(b) indicates that consent to general jurisdiction terminates only upon formally withdrawing from Illinois. This can be accomplished by filing an Application for Withdrawal and Final Report.

Under Section 13.70(c-5), consent is premised on a foreign corporation transacting business in Illinois without authority. Consent through this section does not commence until the foreign corporation commits an act constituting the transaction of business after August 15, 2025. Such an act will remain effective for purposes of consent for 180 days. As discussed, however, each additional act constituting the transaction of business appears to trigger a new 180-day consent period.

Co-Defendant Jurisdiction Requirement

Finally, for consent general jurisdiction to exist, at least one co-defendant must be subject to jurisdiction under subsection (a) of the long-arm statute. Under that subsection, jurisdiction exists for any cause of action arising from the commission of acts specifically enumerated in that subsection, including the transaction of business within Illinois, the commission of a tortious act within Illinois, and the making or performance of a contract or promise substantially connected with Illinois, among other acts. Subsection (a) is a specific jurisdiction provision. Thus, for consent general jurisdiction to exist, at least one co-defendant must be subject to specific jurisdiction under subsection (a).

This places a difficult burden on defendants in toxic tort litigation, which often involves dozens of co-defendants, to determine if any of the co-defendants are subject to specific jurisdiction under subsection (a). A co-defendant’s suit-related contacts with Illinois, if any, may be difficult to determine in toxic tort cases involving non-resident plaintiffs alleging out-of-state exposures and injuries. This would require an analysis of whether any of the co-defendants committed an act enumerated in subsection (a), that act was purposefully directed at Illinois, and that act gave rise to the plaintiff’s cause of action. See, Burgauer v. Burgauer, 2019 IL App (3d) 170545, ¶ 23.

Defendants should remember that, even after PA 104-0352, plaintiffs have the burden of establishing a basis for personal jurisdiction. First, plaintiffs must allege sufficient factual allegations in their complaints to make a prima facie showing of jurisdiction. Under Illinois law, plaintiffs cannot rely on vague, conclusory, or generalized allegations to meet their burden. Only if the plaintiff makes this showing does the burden shift to the defendant to demonstrate why the exercise of jurisdiction would be inappropriate. Even then, if the defendant submits an affidavit or other evidence in support of its jurisdiction defense, the plaintiff must contradict the defendant’s affidavit or evidence through a counter-affidavit or other admissible evidence.

Defendants in toxic tort litigation should force plaintiffs to meet their initial burden of alleging facts sufficient to make a prima facie showing of jurisdiction. This includes requiring them to plead facts, not conclusions, supporting their claim that at least one co-defendant is subject to specific jurisdiction under subsection (a) of the long-arm statute. If a plaintiff is alleging that a defendant consented to general jurisdiction, this would force the plaintiff to show their cards and reveal why they believe at least one of the co-defendants is subject to specific jurisdiction under the long-arm statute.

Tomorrow, we finish our series by examining potential challenges defendants should consider raising in response to PA 104-0352.

Part 1: Background, key provisions and potential challenges under Illinois Public Act 104-0352 (S.B. 328).

Part 2: Historical consent and waiver principles and how they shaped jurisdiction defenses in Illinois.

Part 3: Breaking down the 2023 Mallory Supreme Court decision and how it paved the way for Illinois to enact S.B. 328.