Register to Do Business, Register to Be Sued? Illinois’ New Jurisdictional Trap for Toxic Tort Litigants | Faegre Drinker Biddle & Reath LLP

For companies operating nationwide, rules governing where they can be sued are consequential — especially in high-exposure toxic tort litigation. Toxic tort cases often involve claims over exposure to substances like asbestos, lead paint, pesticides, pharmaceuticals or industrial pollution and frequently target out-of-state corporations whose products or activities reach far beyond their corporate home base. Illinois’ enactment of SB 328, which amends the Illinois long-arm statute and Business Corporation Act of 1983, raises the stakes in these cases even more, conferring general jurisdiction over companies who register or merely transact business in Illinois.

Consent by registration statutes have been one of the most hotly debated legal questions in the general jurisdiction arena. General jurisdiction is a court’s authority to hear all claims against a defendant, regardless of where the alleged conduct took place. General jurisdiction is reserved for the forums where a defendant is “at home.”¹ For corporations, this is usually the corporation’s place of incorporation or principal place of business.² Yet some argue that simply registering to do business in a state should also open the door to being sued there, even if the dispute has little to no tie to that forum.

In 2023, the United States Supreme Court reignited this debate in Mallory v. Norfolk Southern Railway Co.³ In Mallory, a Virginia resident brought suit against a Virginia-based railroad in Pennsylvania state court for injuries that occurred entirely outside Pennsylvania, relying on the company’s registration to do business in the state as a basis for general jurisdiction.⁴ The Supreme Court held that Pennsylvania’s statutory scheme, which required businesses to consent to general jurisdiction as a precondition for registering in the state, is constitutional under the Due Process Clause of the Fourteenth Amendment.⁵ However, the dissent and Justice Alito’s concurrence raised additional constitutional concerns, including federalism issues and the Dormant Commerce Clause, which remain unresolved.⁶ Thus, open questions remained not only about the constitutionality of general jurisdiction by consent, but also how states would respond to the Court’s holding.

In the two years post-Mallory, most states have shown little appetite for Mallory’s consent by registration scheme. Only two states currently have long-arm statutes that explicitly condition registration on consent to jurisdiction, both of which are subject to criticism given the constitutional concerns raised in Mallory.⁷ The newest addition to the consent by registration scheme came in August 2025, when Illinois joined Pennsylvania in enacting a long-arm statute that confers general jurisdiction based on business registration alone. Unlike the Pennsylvania statute, the Illinois law only applies to toxic tort cases in which at least one co-defendant is subject to specific jurisdiction in Illinois.⁸ While  it applies to a narrower set of cases, Illinois’ statute goes a step further than its counterpart in terms of what constitutes consent and also confers jurisdiction over defendants who transact any business in the state, even without registering, for 180 days after the triggering act.⁹

While Pennsylvania and Illinois stand out as rare exceptions, the national mood is clear: most states aren’t buying into consent by registration as a basis for general jurisdiction. Even Missouri, once the poster child for this doctrine in Pennsylvania Fire,¹⁰ changed course only 11 years after adopting consent by registration.¹¹ Today, most states continue to reject the idea that simply registering to do business constitutes consent to suit on any claim.

Take Mississippi, whose supreme court explicitly distinguished its state laws from those in Pennsylvania Fire and Mallory, noting that registration under Miss. Code Ann. § 79-4-15.05(b) does not equate to consent to general jurisdiction.¹² Wisconsin federal courts have similarly observed that the kind of consent scheme at issue in Mallory simply “does not exist under Wisconsin’s statutes.”¹³ Likewise, Texas courts have reaffirmed that Mallory has no effect on settled state law, refusing to reinterpret their non-resident corporation registration scheme as conferring general jurisdiction.¹⁴ New Mexico, New Jersey, South Carolina, Florida, Colorado, Nevada, Virginia, Tennessee and Utah are in accord.¹⁵ The prevailing consensus remains: business registration does not confer general jurisdiction absent a Mallory-like statute.

Illinois’ new statute, like Pennsylvania’s, rightfully faces scrutiny for unresolved constitutional issues. Justice Alito’s concurrence in Mallory warned that such laws could discriminate against out-of-state businesses, disrupt the balance of state and federal authority, and place undue burdens on interstate commerce.¹⁶ These concerns are especially pronounced in Illinois. Unlike the Pennsylvania statute which requires a corporation to register to do business to “consent” to jurisdiction, in Illinois, merely transacting business — even without registering — can expose a company to suit on any toxic tort claim in Illinois courts.

Illinois’ new law has the potential to make it a prominent forum for toxic tort litigation, setting it apart from the overwhelming national trend that continues to reject consent by registration jurisdiction. However, venue-based defenses like forum non conveniens and improper venue likely remain available to defend against forum shopping.

For instance, as recently as September 2025, Pennsylvania courts have dismissed toxic tort cases with no Pennsylvania nexus on forum non conveniens grounds where, despite the defendant being registered to do business in Pennsylvania, Pennsylvania lacked any connection to the suit or substantial interest in applying its law.¹⁷ Additionally, Pennsylvania courts have granted motions to dismiss for improper venue where the defendant lacked intentional business conduct in the forum¹⁸ or where a reasonable forum selection agreement existed between the parties.¹⁹ If adopted by other courts, these procedural defenses may become critical to curbing forum shopping post-Mallory.

As the legal landscape continues to evolve, companies should closely monitor legislative and judicial developments and consult with legal counsel to assess potential risks and protect their organization from unexpected litigation.