USA – ILLINOIS Trends and Developments Contributed by: David A. Warnick, Johnson & Bell Ltd
large models. Under settled Illinois principles, strict liability extends to a component supplier whose part renders a finished product unreasonably dangerous. Consider a manufacturer that embeds a third party’s language model into its own product. If these bills were to become law in their current form, that manu - facturer would inherit design-defect exposure for the behaviour of a component it did not build and may not fully understand. As large language models spread across consumer goods, customer-service systems, and connected devices, the number of potential defendants grows accordingly. Courts in other jurisdictions are beginning to test whether an AI system is a product or instead a form of protected expression. The Illinois proposals would resolve that debate by statute. For the manufacturer, the practical conclusion is that the product-versus- service line can no longer be treated as a reliable defence. The defensible posture is to build a contem - poraneous safety-by-design record and to scrutinise the warnings and use restrictions that accompany any AI feature. Counsel should also allocate risk expressly and in writing with model vendors. Constitutional and pre-emption arguments are worth preserving as well, though they cannot carry the defence alone. Online Marketplaces and the Passive-Intermediary Defence The second expansion targets the other threshold question, which is who qualifies as a seller answer - able in strict liability. Under Section 2-621 of the Illi - nois Code of Civil Procedure, sometimes called the distributor’s statute or innocent-seller provision, a non-manufacturer defendant such as a distributor or retailer can ordinarily secure dismissal from a strict liability claim. It does so by certifying the identity of the manufacturer. The rationale is that the manufacturer is the proper party to answer for a defect in design or manufacture. This affidavit procedure has long ranked among the most valuable tools available to down - stream defendants. It lets them exit a case before the burden of discovery falls on them. That dismissal, however, has never been as auto - matic as it is sometimes assumed to be. The affidavit does not protect a seller in several situations: where the manufacturer cannot be identified or lies beyond
the reach of the court, where the seller had actual knowledge of the defect, or where the seller exer - cised significant control over the product’s design. In cross-border online retail, those exceptions increas - ingly consume the rule. The actual manufacturer of a product sourced through an online marketplace is frequently a foreign entity. Such an entity often cannot be served with process or made to satisfy a judgment. Illinois Senate Bill 1671 would address that reality directly. It would amend Section 2-621 to eliminate the innocent-seller dismissal for participants in the online marketplace ecosystem whenever the product at issue was manufactured outside the United States. In place of that dismissal, the bill would impose joint and several liability on the retail seller, on the market- place platform itself, and on high-volume third-party sellers, alongside the foreign manufacturer. Joint and several liability means that any one of them may be required to satisfy the entire judgment. For now, the bill remains stalled. It was introduced in 2025 and referred to the Senate Assignments Com - mittee, where it has seen no further action. It has gath - ered several co-sponsors but has not advanced to a substantive committee, so its near-term enactment is far from certain. Much of this exposure, however, does not depend on the bill at all. Under existing law, the innocent-sell - er dismissal is already unavailable when the foreign manufacturer cannot be identified or served, and that describes a large share of the goods sold through online marketplaces today. The bill addresses a gap in online commerce. The reality is that the entity pri - marily responsible for a defective product is often the entity least amenable to suit. This proposal does not arise in a vacuum either. At the federal level, the Consumer Product Safety Commis - sion has already determined that Amazon functions as a distributor of the third-party goods it stores and ships through its fulfilment programme. That classification places the operator within the supply chain rather than outside it, and it is operative now, independent of any state legislation. Senate Bill 1671 would carry a com - parable judgment into private strict liability and joint
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