Prairie State Wire

Attorneys from Alston & Bird have raised concerns regarding Illinois' new toxic tort law, S.B. 328, which they say expands the ability of courts to hear lawsuits against out-of-state companies. This expansion raises constitutional and commerce clause issues.

"Under S.B. 328, jurisdiction would apply broadly not only to any registered corporation, but also to unregistered corporations that merely transact business in Illinois, for up to 180 days after their last business activity in the state," said Kara L. McCall. "This expansive implied-consent mechanism significantly diverges from established Supreme Court precedent, which strictly limits general jurisdiction to a corporation's home state."

Legal observers have identified potential constitutional challenges with the law. In an article for Law360 titled "Ill. Toxic Tort Jurisdiction Law Raises Constitutional Concerns," attorneys Kara L. McCall, Elizabeth "Beth" M. Chiarello, and Henry W.P. Woods argue that S.B. 328’s broad approach to consent-based jurisdiction could conflict with U.S. Supreme Court precedent and the dormant commerce clause, potentially positioning Illinois as a center for out-of-state toxic tort litigation.

According to Alston & Bird, Illinois lawmakers have enacted S.B. 328 to broaden the state's jurisdiction over toxic tort cases. The law considers corporations that register or transact business in Illinois without registering as having consented to general jurisdiction in Illinois courts for lawsuits involving toxic substances. This jurisdiction remains until a company formally withdraws from the state or, for unregistered businesses, for 180 days after their last transaction. Proponents claim this change will facilitate justice for individuals harmed by hazardous chemicals.

The statute has drawn criticism from business groups and legal experts who warn it may stretch constitutional limits, according to Alston & Bird. General jurisdiction traditionally applies where a corporation is "at home," such as its headquarters or state of incorporation. By treating registration as consent to broad jurisdiction, Illinois risks violating the Supreme Court’s due process precedent, which emphasizes fairness and predictability in litigation. Opponents suggest the law could also be applied retroactively to past business registrations or earlier injuries, raising further due process concerns.

The law might conflict with the U.S. Constitution’s dormant commerce clause by targeting companies linked to hazardous chemicals for broader litigation exposure. Critics argue it burdens interstate commerce and could promote "litigation tourism," where out-of-state plaintiffs pursue claims in Illinois courts with minimal connection to the state. This influx could strain Illinois’ judiciary while discouraging companies from conducting business there.

Alston & Bird LLP is an international law firm headquartered in Atlanta, recognized for its expertise in litigation, corporate matters, intellectual property, and regulatory law. With over 800 attorneys across offices in the U.S., Europe, and Asia, the firm is noted for its client-focused approach and workplace culture.