Illinois Governor Signs Senate Bill 328, Further Stacking the Deck Against Defendants in Toxic Tort Litigation, Part 3

Mallory Opinion Paves the Way for Senate Bill 328

As previously discussed, the United States Supreme Court’s Daimler opinion created a problem for plaintiffs’ attorneys in Illinois toxic tort litigation. Often, those cases involve out-of-state residents pursuing claims having no connection to Illinois. Waiver and consent applied only in limited circumstances, meaning that general jurisdiction was almost impossible to establish against many defendants.

The Mallory Opinion

In 2023, however, the Supreme Court issued an opinion that ultimately paved the way for Public Act 104-0352. In Mallory v. Norfolk S. Ry. Co., the Supreme Court determined that Pennsylvania law allows Pennsylvania courts to exercise general jurisdiction over foreign corporations that register to do business in Pennsylvania under a state statute. The Pennsylvania statute at issue expressly required foreign entities to consent to personal jurisdiction as a condition of registering to do business.

In hindsight, Mallory proved significant to Illinois. At the time of its issuance, however, the opinion seemed to have limited applicability. The Supreme Court indicated that its decision was based on the express wording of the Pennsylvania statute at issue. The Court noted that it would "not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit."  Mallory, 600 U.S. 122, 135-36 (2023). The opinion, therefore, seemed important only in Pennsylvania and states with similarly worded business registration statutes.

Post-Mallory Rulings

Following Mallory, Illinois courts recognized the limited nature of the holding. For example, the District Court for the Northern District of Illinois noted that Mallory held only that states may require corporations to consent to general jurisdiction by registering to do business. Franco v. Chobani, LLC, No. 1:23-cv-03047, 2025 U.S. Dist. LEXIS 101939, *28 (N.D. Ill. May 29, 2025). The court saw no evidence that Illinois imposed such a requirement in its business registration law. Id. at *29. The Northern District had previously declined to exercise general jurisdiction based on the defendant’s registration in Illinois from 2012 to 2021, despite the plaintiffs’ reliance on Mallory, because of the wording of the Illinois registration law. In re Hair Relaxer Mktg. Sales Pracs. & Prods. Liab. Litig., 702 F. Supp. 3d 692, 708 (N.D. Ill. 2023).

Mallory Opinion Emboldens Illinois Legislature

The problem for the plaintiffs’ bar was that the Illinois business registration statute did not make consent to jurisdiction a condition of registering to do business. In 2025, Illinois legislators moved to remedy this issue. Legislators introduced Senate Bill 328. Likely recognizing the controversial nature of the final version of the bill, legislators used what is known as the “gut-and-replace” procedure. This procedure is intended to avoid Illinois’ constitutional requirements for the reading of bills, as amendments do not have the same reading requirements as bills.

The original language of Senate Bill 328 proposed one change to the Illinois Code of Civil Procedure; specifically, deleting the word “and” and replacing it with “and.”  After passage in the Senate, the bill was read twice in the House before an amendment was introduced to include the language that is in the final version of the bill. The bill was not sent to a substantive committee, but instead, was debated on the last day of the legislative session. The House debate counted as the final required reading, so the bill was sent to the Senate upon passing. The Senate then voted to pass the bill after midnight at the close of the legislative session.

Perhaps unsurprisingly, a group of Illinois lawmakers filed a lawsuit challenging the bill and asking the court to prohibit the legislature from using the “gut-and-replace” procedure. See, Tony McCombie, et al., v. Emmanuel Chris Welch, et al., No. 2025-MR-000281, Circuit Court of Sangamon County, Illinois. According to the court’s online search feature, it appears that the judge granted the defendants’ motion to dismiss on August 21, 2025.  It is unclear whether the plaintiffs will appeal the ruling.

Now that we have explored the background giving rise to PA 104-0352 and waiver/consent jurisdiction, tomorrow we turn our attention to the substance of PA 104-0352. Then, we will finish our series by addressing potential challenges to raise in response to the law.

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.