Illinois Governor Signs Senate Bill 328, Further Stacking the Deck Against Defendants in Toxic Tort Litigation, Part 5

Potential Challenges to Public Act 104-0352.

To conclude our series of posts analyzing Illinois Public Act 104-0352, today, we focus on potential challenges litigants may be able to raise in response to the law. Before addressing specific challenges, it is important to understand the “big picture” issues with PA 104-0352.

First, for toxic tort cases, the law all but abolishes the distinction between general and specific jurisdiction, thus encouraging forum-shopping. Recall from our original post this week that if a plaintiff filed a lawsuit in Illinois unrelated to the defendant’s contacts with Illinois, the plaintiff had to establish that the defendant maintained such affiliations with Illinois to be considered “essentially at home” (i.e., general jurisdiction). By contrast, to establish specific jurisdiction, a plaintiff had to show that their lawsuit arose out of or related to the defendant’s contacts with Illinois. Now, plaintiffs can file toxic tort lawsuits having little-to-no connection with Illinois, without the need to establish constitutionally sufficient minimum contacts against foreign corporations simply because they have registered to do business, obtained authority to transact business, or conducted unrelated – and possibly trivial – business in Illinois.

Additionally, PA 104-0352 forces companies to make a difficult decision. Continue doing business in Illinois, with the risk of being sued in toxic tort lawsuits having no connection to the company’s Illinois activities, or cease doing business in the state. As we have previously discussed, to say Illinois is not a favorable venue for companies in toxic tort litigation is an understatement.

However, there may be hope. The United States Supreme Court’s Mallory opinion does not foreclose challenges to PA-104-0352. In that case, the Supreme Court focused only on the language of certain Pennsylvania statutes. The Supreme Court noted that in deciding the case, it did not need to speculate whether any other statutory scheme and set of facts would suffice to establish consent jurisdiction. Mallory v. Norfolk So. Ry., 600 U.S. 122, 135-36 (2023).

The amended versions of the Illinois long-arm statute and Business Corporation Act are worded differently from the Pennsylvania statutes at issue in Mallory. There are different prerequisites that must exist for each state’s laws to apply. Therefore, the Pennsylvania and Illinois laws are not an apples-to-apples comparison.

From a factual perspective, in Mallory, the defendant had been registered to do business in Pennsylvania for many years; it maintained an office in Pennsylvania for receiving service of process; it employed nearly 5,000 people in Pennsylvania (more than in the state where its headquarters was located); maintained more than 2,400 miles of track in Pennsylvania (more than it did in any other state); and operated the largest locomotive repair shop in North America in Pennsylvania. That is certainly different from a small business that may transact only nominal business in Illinois.

Retroactivity

One issue to consider is whether PA 104-0352 improperly applies retroactively; specifically, by applying to pending lawsuits filed prior to August 15, 2025. PA 104-0352 indicates that the Act takes effect upon becoming law. As previously discussed, Governor Pritzker approved Senate Bill 328 on August 15, 2025, thus making that the effective date. See, Fannie Mae v. Altamirano, 2020 IL App (2d) 190198, ¶ 12 (“[T]his case has been pending since before the effective date of these amendments…We would thus have to give this statute retroactive effect, which would be inappropriate given the legislature’s plain statement regarding when these provisions became effective.”).

In Illinois, courts apply a three-part analysis to determine if a statute applies retroactively:  1) Has the legislature clearly indicated the temporal, or retroactive, reach of the amended statute; 2) If not, is the amendment procedural or substantive in nature; and 3) If the statute is procedural, does it have a retroactive impact. If the temporal reach of an amended statute is set forth in the statute, then that expression of legislative intent must be given effect, absent a constitutional prohibition. Martin v. Goodrich Corp., 2025 IL 130509, ¶ 34.

While PA 104-0352 identifies the effective date of the Act, it does not expressly state whether it applies to lawsuits filed before the effective date. It is not uncommon for the legislature to include language in a statute indicating that it applies to actions filed on or after a specified date. PA 104-0352 contains no such language.

To the extent the Act’s temporal reach is deemed procedural, then a defendant would need to establish that the Act is unconstitutional. We discuss potential constitutional challenges to the Act below. Otherwise, a court will examine whether the Act is procedural or substantive in nature. Procedural changes will be applied retroactively, while substantive changes are only applied prospectively.

Please note, Illinois courts have reached different opinions on whether changes to the long-arm statute apply retroactively. In some cases, courts have determined that amendments to the long-arm statute can be applied to lawsuits that arose before the amendment’s effective date. See, Ores v. Kenney, 218 Ill. App. 3d 866 (1st Dist. 1991); Sunday v. Donovan, 16 Ill. App. 2d 116 (1st Dist. 1958); Nelson v. Miller, 11 Ill. 2d 378 (Ill. 1975). In other cases, courts have determined that defendants do not waive a jurisdiction defense based upon actions taken prior to an amendment to the long-arm statute. BAC Home Loan Servicing, LP v. Mitchell, 2014 IL 116311. Defense counsel should be prepared for plaintiffs’ attorneys to argue that PA 104-0352 is permissible because defendants do not waive a jurisdiction defense if, after the effective date, they withdraw from Illinois and/or cease transacting business in the state.

Dormant Commerce Clause

In Mallory, Justice Alito issued a concurring opinion. In it, he discussed whether Pennsylvania violated the dormant Commerce Clause with its consent jurisdiction statutory scheme. The Commerce Clause grants Congress the power to regulate commerce among the states. The Supreme Court has recognized a “negative component” in the Clause – the dormant Commerce Clause – that prohibits state laws that unduly restrict interstate commerce.

According to Justice Alito, the Supreme Court and other courts have long-examined assertions of jurisdiction over foreign companies in light of interstate commerce concerns. Therefore, he believed that analyzing whether the Pennsylvania statutes violated the dormant Commerce Clause was appropriate. He then explained that a state may violate the Clause in two circumstances:  1) when a law discriminates against interstate commerce; or 2) when a law imposes undue burdens on interstate commerce.

Justice Alito indicated there was reason to believe Pennsylvania’s registration-based jurisdiction discriminated against foreign companies. He also believed, at the very least, the statutes imposed a significant burden on interstate commerce by requiring a foreign company to defend itself with reference to all transactions, including those with no forum connection. He highlighted the impact Pennsylvania’s consent jurisdiction law could have on small companies. Specifically, large companies may utilize creative restructuring to avoid jurisdiction, while small companies may choose not to enter Pennsylvania, or may do business in the state without registering, risking the consequences rather than consenting to general jurisdiction.

In Mallory, the defendant raised the dormant Commerce Clause in the lower courts, but the Pennsylvania Supreme Court did not address the issue. Consequently, the U.S. Supreme Court did not consider that issue, leaving it unresolved. Mallory, 600 U.S. at 127 n. 3.

Defendants in Illinois facing the issue of consent general jurisdiction should consider raising this argument. Although not identical to the Pennsylvania statutes, PA 104-0352 imposes a similar burden on foreign corporations, particularly small businesses.

Due Process

As discussed, one issue with PA 104-0352 is that it authorizes the exercise of personal jurisdiction against many companies without consideration of minimum contacts. Prior to PA 104-0352, Illinois courts would not exercise jurisdiction over a defendant unless doing so comported with due process principles, or the defendant waived/consented to jurisdiction in the limited circumstances previously discussed. Historically, this required an analysis of the Federal Due Process Clause, contained in the Fourteenth Amendment of the U.S. Constitution, and the Illinois Due Process Clause, contained in Article I, Section 2 of the Illinois Constitution. Following a 1989 amendment to the Illinois long-arm statute, Illinois courts collapsed their inquiry into one question: whether a defendant maintained minimum contacts with Illinois sufficient to satisfy federal and Illinois due process.

Thus, jurisdiction could be appropriate under a provision of the Illinois long-arm statute but still be improper based upon due process concerns. In Mallory, the defendant argued that the Pennsylvania law violated due process principles by improperly expanding upon the scope of jurisdiction previously recognized by the U.S. Supreme Court. Specifically, the defendant argued that following a landmark Supreme Court opinion from 1945, jurisdiction could only be exercised if the defendant maintained sufficient minimum contacts with the forum state. The Pennsylvania statutes did not create general jurisdiction through minimum contacts, but instead, required foreign companies to consent to general jurisdiction to do business in the state.

The Court rejected this argument, noting that the 1945 opinion simply recognized an “additional road” to exercise jurisdiction over foreign corporations. The Court had previously approved consent jurisdiction in a 1917 opinion. In other words, courts could exercise jurisdiction over foreign corporations that consented to general jurisdiction or that maintained minimum contacts with the forum state sufficient to establish specific or general jurisdiction.

The dissent in Mallory thoroughly addresses the due process concerns with the Pennsylvania statutes. While the dissent is not controlling law, it details due process arguments to make if seeking to overturn Mallory. If the makeup of the Court changes, the Court’s position on this issue hopefully will evolve.

While probably a long-shot argument, defendants also may want to consider whether the Illinois Due Process Clause provides greater protection to defendants than the federal Clause. The Illinois Supreme Court previously explained that the Illinois long-arm statute is to be given a definite meaning and scope “which does not fluctuate with every new pronouncement on the limits of Federal due process.”  Rollins v. Ellwood, 141 Ill. 2d 244, 271 (Ill. 1990). The court further noted that the Illinois long-arm statute “may well restrict the power that the courts of this State have to bring nonresidents before them to a greater extent than do the Federal due process clause and the ‘minimum contacts’ standard…”  Id. at 271-72. The U.S. Supreme Court deems the federal Due Process Clause as setting “the outer-boundaries” of a state court’s authority to proceed against a defendant, suggesting that states may impose narrower boundaries.

Please note, however, if you intend to raise this argument, we are not aware of the Illinois Supreme Court resolving the issue of whether the Illinois Due Process Clause affords greater protection than its federal counterpart regarding personal jurisdiction. See, Russell v. SNFA, 2013 IL 113909. In one case, the Illinois First District Appellate Court seemingly rejected a defendant’s argument that Illinois due process requirements are “more rigorous” than federal standards, yet still conducted a separate Illinois due process analysis. Morgan, Lewis & Bockius LLP v. City of E. Chi., 401 Ill. App. 3d 947 (1st Dist. 2010). At the federal level, the Seventh Circuit Court of Appeals previously noted that “Illinois courts have given little guidance as to how state due process protection differs from federal protection in the context of personal jurisdiction.”  RAR, Inc. v. Turner Diesel Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997).

Special legislation

Another challenge to consider is that PA 104-0352 is unconstitutional “special legislation.”  Article IV, Section 13 of the Illinois Constitution provides that the Illinois legislature shall pass no special or local law when a general law is or can be made applicable. The clause prohibits the legislature from conferring a benefit or privilege upon one group while excluding other similarly situated groups.

The legislature chose to limit PA 104-0352 to cases involving exposure to substances defined as toxic by the Uniform Hazardous Substances Act to the exclusion of plaintiff pursuing other types of bodily injury and wrongful death claims. Additionally, the law only creates consent jurisdiction to foreign corporations to the exclusion of other business entities, and only when such corporations are named in toxic tort lawsuits. Not surprisingly, there is no language in PA 104-0352 explaining the distinctions.

Snap Removal:

Defense counsel also needs to consider novel and aggressive approaches in light of PA 104-0352. One such approach is to pursue “snap removal.”  Complete diversity of citizenship is often lacking in multi-party toxic tort litigation. Removal to federal court, however, is often difficult to pursue because plaintiffs’ attorneys typically know to name at least one defendant that is considered a citizen of the forum state, thus triggering what is known as the “forum defendant rule.”  28 U.S.C. § 1441(b)(2). To avoid this outcome, defense counsel should determine whether to pursue snap removal.

Snap removal is when a defendant that is not considered a citizen of the forum state removes a case to federal court:  1) after the lawsuit has been filed; but 2) before a forum state resident defendant has been served. After removing the case, the question facing courts is whether to allow the case to remain in federal court even though forum state resident defendants are later served, or to remand the case simply because forum state resident defendants have been named in the lawsuit. This issue could warrant its own post, but in short, the answer depends on the district court and judge addressing the issue.

In the following cases, Illinois district court judges authorized snap removal:  Great West Cas. Co. v. CR Express, Inc., No. 23-cv-16942, 2024 U.S. Dist. LEXIS 128552 (N.D. Ill. July 22, 2024); Knightsbridge Mgmt. v. Zurich Am. Ins. Co., 518 F. Supp. 3d 1248 (S.D. Ill. 2021); Tavistock Rest Grp., LLC v. Zurich Am. Ins. Co., No. 20-cv-04364, 2021 U.S. Dist. LEXIS 79416 (N.D. Ill. April 26, 2021); Wragge v. Boeing Co., 532 F. Supp. 3d 616 (N.D. Ill. 2021); W. Bend Mut. Ins. Co. v. MSPPR, LLC, No. 20-cv-03308, 2021 U.S. Dist. LEXIS 24545 (N.D. Ill. Feb. 9, 2021); I.T.M. v. Midwest Can Co., LLC, No. 20-cv-2230, 2021 U.S. Dist. LEXIS 9512 (N.D. Ill. Jan. 19, 2021); Serv. Corp. Int’l v. Stericycle, Inc., No. 20 C 838, 2020 U.S. Dist. LEXIS 208668 (N.D. Ill. Nov. 9, 2020); D.C. v. Abbott Labs, Inc., 323 F. Supp. 3d 991 (N.D. Ill. 2018); Graff v. Leslie Hindman Auctioneers, Inc., 299 F. Supp. 3d 928 (N.D. Ill. 2017); Massey v. Cassens & Sons, Inc., No. 05-CV-598-DRH, 2006 U.S. Dist. LEXIS 9675 (S.D. Ill. Feb. 16, 2006); Test Drilling Serv. Co. v. Hanor Co., 322 F. Supp. 2d 953 (C.D. Ill. 2003).  

By contrast, in the following cases, Illinois district court judges rejected snap removal:  W. Bend Ins. Co. v. Sigler’s Auto & Body Shop, Inc., No. 24-cv-11182, 2025 U.S. Dist. LEXIS 18691 (N.D. Ill. Feb. 3, 2025); Pa. Manufacturers’ Ass’n Ins. Co. v. Fidelitone, Inc., No. 23 C 16940, 2024 U.S. Dist. LEXIS 62127 (N.D. Ill. April 4, 2024); In re Paraquat Prods. Liab. Litig., No. 3:21-md-3004-NJR, 2022 U.S. Dist. LEXIS 156514 (S.D. Ill. Aug. 30, 2022); In re Abbot Lab’ys, MDL No. 3026, 2022 U.S. Dist. LEXIS 111334 (N.D. Ill. June 23, 2022); Vivas v. Boeing Co., 486 F. Supp. 2d 726 (N.D. Ill. 2007).

Conclusion:

While there are defenses to PA 104-0352, defendants should be prepared for an uphill battle in Illinois. Therefore, in addition to procedural maneuvers such as snap removal, foreign corporations named in Illinois toxic tort lawsuits probably need to consider defenses that were more commonly litigated in toxic tort cases prior to the Daimler opinion. This includes forum non conveniens, application of foreign law, statute of limitations, and sole proximate cause.

Baker Sterchi will closely monitor court rulings related to PA 104-0352 and continue developing strategies for contesting jurisdiction under, and grounds for challenging, the law. Our toxic tort group has significant experience on the issue of personal jurisdiction. We have been recognized by clients, national counsel, co-defendants’ counsel, and judges for the work we have done related to personal jurisdiction. Therefore, if you have questions related to, or are contesting jurisdiction under, PA 104-0352, consider contacting Baker Sterchi. 

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.

Part 4: The substance of PA 104-0352 and how consent general jurisdiction now applies.