Illinois Senate Bill 328 (SB328) was enacted as Public Act 104-0352 on Friday, August 15, 2025. Below is a breakdown of its key provisions and implications.
SUMMARY OF SB328
Jurisdiction Expansion: The bill significantly broadens the ability of Illinois courts to assert general personal jurisdiction over foreign (out-of-state) corporations.
Toxic Tort Focus: It applies specifically to civil actions involving exposure to toxic substances, as defined by the Illinois Uniform Hazardous Substances Act.
Consent to Jurisdiction:
- Foreign corporations are deemed to have consented to jurisdiction if they register to do business in Illinois.
- For corporations already registered, consent becomes effective on the due date of their next annual report.
- For corporations not already registered, any foreign corporation that transacts business in Illinois is deemed to have consented to general jurisdiction; jurisdiction also commences upon committing an act constituting the transaction of business, and remains for 180 days after any such act.
KEY QUESTIONS
Retrospective Application
It remains to be seen whether the Act will apply to causes of action which arose from conduct that occurred before the effective date of the Act.
The Illinois Supreme Court clarified Illinois’ retroactivity jurisprudence in Perry v. Department of Financial & Professional Regulation, 2018 IL 122349, ¶¶ 38-41. Illinois courts begin with the first step set forth by the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994). See id. at ¶ 40. “Under step one of Landgraf, a court first determines whether the legislature has expressly prescribed the temporal reach of the new law.” Id. at ¶ 40. If the legislature “clearly indicated the temporal reach,” then that intent “must be given effect unless to do so would be constitutionally prohibited.” Id.
If the legislature did not clearly indicate a temporal reach in the language of the amended statute, the new law’s temporal reach is provided by default in Section 4 of the Illinois Statute on Statutes (5 ILCS 70/4 (West 2014)). See Perry, 2018 IL 122349, ¶ 43. Section 4 is a general savings clause applying to repeals and amendments and providing that “‘procedural changes to statutes will be applied retroactively, while substantive changes are prospective only.’” Id. Moreover, “where the legislature has not expressly indicated its intent as to temporal reach, ‘a presumption arises that the amended statute is not to be applied retroactively.’” Id. at ¶ 42 (quoting People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 34).
The Perry court turned to dictionary definitions to distinguish procedural laws from substantive laws. Perry, 2018 IL 122349 at¶¶ 69-70. Citing Black’s Law Dictionary, the Supreme Court defined procedural law as “‘[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.’” Id. (quoting Black’s Law Dictionary 1398 (10th ed. 2014)). Substantive law, in contrast, is defined as “‘[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of the parties.’” Id. (quoting Black's Law Dictionary 1658 (10th ed. 2014)). The Perry court further clarified that a substantive change in law redefines “the rights, duties, and obligations of persons to one another as to their conduct or property and that determines when a cause of action for damages or other relief has arisen.” Id. at ¶ 69 (citing Webster’s Third New International dictionary 2280 (2002)); see also People v. Stefanski, 2019 IL App (3d) ¶ 14 (“In essence, the Perry court concluded that procedural laws are laws that establish the ways in which rights or duties are judicially enforced, while substantive laws are laws that create and define those rights and duties”).
Appellate decisions following Perry reinforce that conclusion. See Est. of Metzger v. Roman, 2020 IL App (1st) 200002-U, ¶ 1 (amendment expanding who could be found liable in a civil action for financial exploitation of the elderly, made a substantive change to the law and thus applied prospectively only) (herein attached pursuant to Ill. Sup. Ct. R. 23(e)(1)); see generally Stefanski, 2019 IL App (3d) 160140 (statutory amendment requiring trial courts to give admonishments regarding certain collateral consequences of pleading guilty was substantive, and thus did not apply retroactively); NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Dep’t, 2019 IL App (1st) 181426 (amendments to Juvenile Court Act clarifying scope of information in court and law enforcement records that could not be disclosed without court order made substantive changes thus did not apply retroactively).
Check back for further analysis of this important issue.
Challenges Based on the Three Reading Rule
A lawsuit filed by Illinois House and Senate Republican caucuses in Sangamon County Circuit Court against Senate Bill 328 (SB328) centers on allegations that the bill’s passage violated the Illinois Constitution’s Three Readings Rule.
The Illinois Constitution requires that a bill “shall be read by title on three different days in each house[]” and that “[a] bill and each amendment thereto shall be reproduced and placed on the desk of each member before final passage.” See Ill. Const. 1970, art. IV §§ 8(d). It also requires that “the Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.” Id.
One purpose of the reading requirement is to “ensure that the legislature is fully aware of the contents of the bills on which they will vote and [to] allow the lawmakers to debate the legislation.” First Midwest Bank v. Rossi, 2023 IL App (4th) 220643 ¶ 231. Another purpose is to allow for “the opportunity of the public to view and read a bill prior to its passage, thereby allowing the public an opportunity to communicate either their concern or support for the proposed legislation with their elected representatives and senators.” Id.
The plaintiffs argue that SB328 was passed using a “gut-and-replace” tactic, which they claim blatantly violated the Three Readings Rule. According to the lawsuit, lawmakers replaced the contents of an unrelated bill with the text of SB328 just hours before the end of the legislative session on May 31, 2025. This maneuver allegedly allowed the majority party to bypass the constitutional requirement for three readings across three different days in each chamber. The plaintiffs assert that this process prevented proper legislative scrutiny, committee hearings, and public input, undermining the transparency and due process mandated by the Illinois Constitution.
Of note, despite the express language of the Illinois Constitution, the Illinois Supreme Court has recognized the “enrolled bill” doctrine as an exception to the three-reading requirement. Under this judicially-created doctrine, if the President of the Senate and the Speaker of the House certify that constitutional procedures were complied with, the constitutional requirement of three-readings is, in essence, inconsequential. Friends of the Parks v. Chicago Park Dist., 203 Ill. 2d 312, 328-329 (2003).
However, since its adoption in 2003, appellate courts across Illinois have recognized that the enrolled bill doctrine puts them in the position where they are “constitutionally required to turn a blind eye to a grave constitutional violation by a co-equal branch of government.” First Midwest Bank, 2023 IL App (4th) 220643 at ¶ 241 (urging the Illinois Supreme Court to revisit the doctrine: “the Illinois Supreme Court has long documented the legislature’s complete and utter disregard for the requirements of the Illinois Constitution [the three-readings requirement], but that court has done nothing in response. The only logical conclusion is that the supreme court’s ‘reservation’ of the right to revisit the enrolled bill doctrine is nothing but bluster”); see also Accuracy Firearms, LLC v. Pritzker, 2023 IL App (5th) 230035, ¶ 36-46 (2023) (Protect Illinois Communities Act); Doe v. Lyft, Inc., 2020 IL App (1st) 191328, ¶ 52-55 (2020) (where the plaintiff urges the court to revisit the enrolled bill doctrine, raising a three-readings rule challenge pertaining to the Transportation Network Providers Act); Caulkins v. Pritzker, 2023 IL 129453, ¶ 105-113 (2023) (O’Brien, J., dissenting) (the enrolled bill doctrine should be rejected and the act should be found unconstitutional based on the three-reading requirement: “[w]hen we limit people’s rights, even the rights we might not like, we have to do so in a way that honors the constitution”).
Challenges based on United States Constitution
The U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Ry., 600 U.S. 122 (2023) upheld Pennsylvania’s consent-by-registration statute, allowing states to exercise general personal jurisdiction over out-of-state corporations that register to do business in the state, without violating the Due Process Clause. However, despite this ruling, several potential challenges to general jurisdiction remain, both within and beyond the scope of Mallory.
Dormant Commerce Clause Concerns: After Mallory, a major challenge is whether Pennsylvania’s statute violates the Commerce Clause by placing extra burdens on out-of-state corporations. Justice Alito noted that requiring foreign companies to consent to general jurisdiction for doing business may discriminate against them and force them into lawsuits unrelated to the state—potentially affecting interstate commerce. He suggested Norfolk Southern could raise this issue on remand since it was not addressed earlier. The dormant Commerce Clause argument hinges on whether a state’s assertion of jurisdiction over claims with no connection to the forum discriminates against interstate commerce or undermines federalism by encroaching on other states’ sovereignty. For example, requiring out-of-state companies to face lawsuits in Pennsylvania for claims arising elsewhere could create operational unpredictability and economic burdens, potentially violating the Commerce Clause’s prohibition on state laws that unduly burden interstate commerce. This issue remains unresolved, and future litigation, including a potential return of Mallory to the Supreme Court, could clarify whether such statutes are constitutionally permissible under this framework.
Forum Shopping: Forum shopping remains a constant concern, with plaintiffs seeking to file cases in states viewed as favorable to them, even when those claims lack local ties. This may burden state courts and create uncertainty for businesses. Defendants can contest general jurisdiction by claiming this practice disrupts federalism and fairness. Justice Barrett’s dissent in Mallory argued Pennsylvania’s statute manufactures consent and sidesteps constitutional limits set by Daimler and International Shoe. This issue could result in further challenges, especially in states that pass similar laws, as it questions the traditional “minimum contacts” approach.
Federalism Concerns: Justice Alito’s concurrence and the Mallory dissent raised federalism concerns, arguing that a state’s broad exercise of general jurisdiction could infringe on other states’ sovereignty. For example, if Pennsylvania asserts jurisdiction over claims from Virginia, it may disrupt the constitutional balance between states. Although this issue was not central to Mallory’s due process analysis, it could be relevant in future cases, especially with Commerce Clause challenges.
The new Act will undoubtedly spur significant litigation activity with respect to both the legal challenges and the practical applications associated with it.
By: H. Patrick Morris, David F. Fanning, Danielle E. Austriaco, and Madeleine A. Fontenot
For a full copy of the Senate Bill click here.
