Illinois Governor Signs Senate Bill 328, Further Stacking the Deck Against Defendants in Toxic Tort Litigation, Part 2

History of Consent and Waiver Jurisdiction in Illinois

Consent by Contract

As we will detail later this week, Illinois Public Act 104-0352 significantly expands the scope of general jurisdiction in toxic tort litigation through the doctrine of consent jurisdiction. While this is a new law, consent jurisdiction is not a new concept in Illinois. Rather, Illinois courts have routinely found that defendants can contractually consent to jurisdiction. Specifically, forum selection clauses are considered a consent to the exercise of jurisdiction in the particular forum designated in the contract. Solargenix Energy, LLC v. Acciona, S.A., 2014 IL App (1st) 123403, ¶ 41.

Waiver by Appearance

Historically, Illinois law also recognized consent jurisdiction through waiver. Before 2000, defendants seeking to contest jurisdiction were required to file a “special appearance” before filing any other pleading or motion. Defendants waived a jurisdiction defense either by filing a “general appearance” or by taking any action “which recognize[d] the case as in court.” In re Marriage of Buchanio, 262 Ill. App. 3d 910, 914 (1st Dist. 1994). Moreover, if a defendant raised any defense other than jurisdiction in its appearance, the defendant waived its jurisdiction defense, even if its appearance was designated as a “special appearance.”  Id.

In 2000, Illinois eliminated the distinction between general and special appearances. Now, a defendant waives a jurisdiction defense by filing a responsive pleading or motion, other than a motion seeking an extension of time to answer or otherwise appear, before filing a motion objecting to jurisdiction. 735 ILCS 5/2-301(a-6). Illinois courts have recognized that defendants are no longer required to file special appearances to preserve a jurisdiction defense, and defendants may combine a motion challenging jurisdiction with additional motions seeking relief on different grounds. Cardenas Mktg. Network v. Pabon, 2012 IL App (1st) 111645, ¶ 23.

Please note that despite the unambiguous language used in the amended version of Section 5/2-301, some courts still have relied on the outdated principle that defendants can waive a jurisdiction defense by filing a general appearance and not a special appearance solely to contest jurisdiction. See, King v. Find-a-Way Shipping, LLC, 2020 IL App (1st) 191307, ¶ 20. Another court referred to the now-moot distinction between general and special appearances when explaining that a defendant waives its jurisdiction defense by proceeding in the merits of a case, even after filing such a special appearance. In re Estate of Ostrom v. Sunnen, 2019 IL App (2d) 180602-U, ¶ 30. While these cases appear anomalous, counsel should be aware of them if waiver is an issue and be prepared to argue that such cases are based on “an obsolete legal framework.”  KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 596 (2d Dist. 2006). Additionally, participation in a case should not constitute waiver so long as a defendant contests jurisdiction in its initial pleading or motion. Id. at 597.

Consent Through Registration

As discussed yesterday, in an effort to avoid Daimler’s strict narrowing of general jurisdiction, some plaintiffs’ attorneys in toxic tort litigation argued that defendants consented to jurisdiction by maintaining a registered agent in the forum state. In 2017, the Illinois Supreme Court rejected this argument, finding that a defendant does not consent to general jurisdiction by maintaining a registered agent in Illinois. Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 2017 IL 121281, ¶ 27. Subsequently, the Illinois Appellate Court similarly determined that a defendant who has a registered agent in Illinois neither consents to jurisdiction nor waives its jurisdiction defense. Campbell v. ACME Insulations, Inc., 2018 IL App (1st) 173051, ¶ 17.

Ultimately, prior to the enactment of PA 104-0352, consent and waiver jurisdiction applied only in limited circumstances. Again, defendants had to either consent to jurisdiction through contract or fail to comply with Section 5/2-301(a-6). Consequently, unless specific jurisdiction was appropriate, which would require a connection between the plaintiff’s claim and the defendant’s contacts with Illinois, jurisdiction was unlikely to exist against foreign companies. As we will discuss tomorrow, however, in 2023, the United States Supreme Court unfortunately provided the opening needed for Illinois to enact PA 104-0352.

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