On December 18, 2009, the State of Alabama created a "Commercial Litigation Docket" ("CLD") in the Circuit Court, Tenth Judicial Circuit of Alabama, Birmingham Division. The Docket is presided over by Circuit Judge Robert Vance.
In a January 2010 article in The Alabama Lawyer Judge J. Scott Vowell, wrote about the process for creating this commercial docket. An ad hoc committee was created to evaluate the prospects of forming a business court. The committee was made up of several judges, retired judges, practicing attorneys and members of the business community. After consideration, the committee issued a report to the Chief Justice, who accepted the committee's recommendation that a Commercial Litigation Docket be established. The committee decided to call the new court the "Commercial Litigation Docket" because it determined that the name would be more descriptive than "Business Court."
The article states that the CLD would serve several goals. The cases at issue on this docket would generally affect all business in the state, and these business need "greater predictability in assessing the effects of potential litigation." Further, having one centralized court with a specialized judge hearing these cases will meet this goal of predictability and efficiency.
In order to have a case heard under the CLD a party must include a document that would explicitly state their request for inclusion in the business docket in addition to the summons, complaint and civil cover sheet. A presiding judge over a case in the regular docket may also refer an ongoing matter to the CLD.
The Alabama Lawyer also contains a list of the types of cases that would and would not be properly included on the CLD.
In 2002, Arizona established the Complex Civil Litigation Pilot Program in Maricopa County (Phoenix). Arizona's Pilot Program hears cases based upon their complexity, and includes not only commercial and business cases, but cases such as mass and toxic torts.
A "complex case" is a civil action requiring "continuous judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote an effective decision making process by the court, parties and counsel."
A plaintiff may designate an action as a complex case at the time of filing the initial complaint by filing a motion and separate certification of complex civil case. The motion is then ruled upon by the Civil Presiding Judge within 30 days after the filing of the response to the designating party's motion. The court may also decide on its own motion that a civil action is a complex case. Parties shall not have the right to appeal the court's decision regarding such a designation.
In 2000, California created the Complex Civil Litigation Pilot Program in which six of the largest Superior Courts established separate departments for complex civil litigation. The rules and guidelines of several of the courts (Orange, Contra Costa, Santa Clara, San Mateo, and San Francisco Counties) are available online.
The state decided on these programs in lieu of a dedicated business court, finding that complex civil litigation programs would be more beneficial to the state in general. The programs include a separate calendaring of complex cases and assignment to judges who have expertise in such cases. Program judges are encouraged to use innovative management techniques to tailor discovery, resolve deposition disputes, and assist in informal dispute resolution. A final evaluation of this program was completed in June of 2003. A recent fact sheet gives a brief overview of California's Complex Civil Litigation Program.
Colorado does not currently have a separate docket or program for complex civil litigation. In 2000, the Governor's task force on Civil Justice Reform recommended in its final report that the state of Colorado establish business courts to adjudicate commercial cases. However, it was determined that there were not enough commercial cases filed in Colorado to justify the time and expense necessary to establish a separate business court. In 2006, Colorado's 4th District implemented a commercial docket to relieve congested courts from cases that have a "broad and significant impact on the community." The Chief Judge's Directive establishing the commercial docket describes the process for having a case assigned to the docket.
Connecticut offers a specialized
court division dedicated to hearing complex litigation matters.
The State has designated this program as the Complex
Litigation Docket in the Superior Court, Civil Division.
Offered in three court locations (Hartford, Stamford, and Waterbury),
the specialized session of the Superior Court handles cases
involving multiple litigants, legally intricate issues, lengthy
trials or claims for large monetary damages (potentially in
the millions of dollars).
While Delaware does not have a court that solely hears business and commercial matters, its Court of Chancery is recognized as the nation's leading trial court addressing issues of corporate law. The state's Superior Court also hears a large number of cases regarding commercial and corporate disputes because so many businesses are incorporated in Delaware. The Superior Court does provide for Summary Proceedings, which allows for major commercial litigation to be resolved expeditiously and cost-effectively. However, a case must meet certain requirements to be eligible for a Summary Proceeding. Under 10 Del. C. §§ 346, 347, since 2003, the Court of Chancery has been empowered to mediate certain non-equity technology and business disputes and, in some circumstances, to entertain original (mediation only) jurisdiction over the full litigation of solely monetary technology or business disputes. Delaware recently amended the law regarding arbitration, authorizing the Court of Chancery to arbitrate disputes even where there is no underlying litigation pending before the Court.
Effective May 1, 2010, the state enacted a new division within the jurisdiction of the Superior Court to handle commercial and business cases. The Complex Commercial Litigation Division ("CCLD") will hear such cases under a set of requirements and separate regulations from other cases in Superior Court. For a case to qualify for the CCLD, it must:
1) Include a claim with an amount in controversy of at least one million dollars;
2) Involve an exclusive choice of court agreement or a judgment resulting from an exclusive choice of court agreement; or
3) Is so designed by the President Judge.
A distinguishing element of CCLD cases is that they will be given a prompt trial date that will take priority over other assigned judge's civil cases. CCLD cases will require mandatory early initial disclosures in compliance with the Federal Rule of Civil Procedure 26(a). Opposing parties for CCLD qualification of a case must file a motion before the Rule 16 scheduling conference. Further guidelines for CCLD qualifications and rules are outlined in the Administrative Directive of the President Judge of the Superior Court.
Additionally, two very good blogs that cover the Court of Chancery are the Delaware Business Litigation Report and the Delaware Corporate and Commercial Litigation Blog. For an in depth discussion of the history and impact of Delaware's courts in business and commercial law, see "The History of Delaware's Business Courts," published in Business Law Today.
The Court of Chancery now offers would-be litigants a fast track to dispute resolution. For a Fee, a chancellor will arbitrate any business dispute in a confidential setting with the goal of reaching a binding decision within 90 days. Despite the advantages of resolving cases cheaper and faster, critics warn that the lack of transparency in combination with the Chancery's unfailing pro-business stance has "ominous implications for the future of American democracy".
There are four business court programs in Florida, located in Orlando, Miami, Tampa, and Broward County. Each of the four business litigation courts have been established through administrative order by the chief judge in a specific judicial circuit. As a result, each court has adopted separate rules and procedures that are not binding on any of the other circuits. A practitioner is advised to check the administrative order of their specific court.
The Ninth Judicial Circuit formed a Business Court to handle complex business cases including antitrust, intellectual property, franchise, and unfair competition cases. The benefits of the business court include: implementation of standardized procedures; (2) higher degree of consistency of rulings on recurring issues; and (3) economic stimulus to the community. The administrative order No.: 2003-17-1 includes a detailed description on the requirements a case must meet to be heard in the court. The Ninth Judicial Circuit's Complex Business Litigation Court in Orlando has been in operation since January of 2004. Available information includes a helpful brochure and a video from Governor Jeb Bush speaking about the business court. There is one judge from the Circuit Civil Division assigned to hear the Business Court cases. This judge will be well-versed in complex litigation matters which will allow for further efficiency in the Court system
In 2007, the Eleventh Judicial Circuit Court, located in Miami, created its own Complex Business Litigation Court. The procedures for being heard in the Complex Business Litigation Court are as follows. The attorney must write a motion not exceeding 20 pages laying forth the plaintiff's claims and grounds for relief. Cases will be assigned to the Complex Business Litigation Court based on Amended Administrative Order 11-40. Cases whose amount in controversy exceeds $75,000 and whose causes of action contain any of the following may be heard in the Business Court: a breach of contract, a business tort, a common law or statutory violation regarding a business deal, a U.C.C. action, an action resulting from the sale or purchase of a business or stock, a surety bond action, an action relating to a franchise operation, or an insurance coverage dispute. Order 2006-40 also lists cases not subject to the Complex Business Litigation Court. Additionally, a Civil Cover Sheet must be attached to the motion designating that the case should be heard in Business Court.
Likewise, the Thirteenth Judicial Circuit's Complex Business Litigation Division, located in Tampa, became operative not long thereafter. While the procedures for a case to be heard are similar to the 11th Circuit, the 13th Circuit requires an amount in controversy to be equal to or greater than $150,000.
In 2008, the Broward County Circuit Court created the Complex Litigation Unit. This three judge unit will hear cases with complex discovery, numerous parties or extensive pre-trial motions. The court requires the amount in controversy to be at least $100,000.
The Business Law Section of the Florida Bar also has a helpful website about business courts in Florida.
On June 6, 2007, the Fulton Superior Court in Georgia amended the rules of its Business Case Division. The amended rules: (1) allow cases to transfer from the Fulton County Superior Court to the Business Case Division upon a request submitted by the Superior Court Judge currently assigned to that case, or the motion of a party; (2) carve out cases involving wrongful death, personal injury, discrimination and individual consumer claims less than $1M from the Business Case Division, unless consented to by all parties; and (3) provide a 20-day briefing period for the parties to object to the proposed transfer of the case. In addition, the Gwinnett Superior Court and the Gwinnett State Court have established a business court, modeled after the Fulton County Business Court. Cases argued before the Division include large contractual and business tort cases as well as other complex commercial litigation. However, one problem with the Division is that both parties must agree to move the case to the Business Division, creating problems when one side refuses.
On May 6, 2009, the Supreme Court of Georgia approved changes to the rules for the Business Court Division of Fulton County Superior Court. The amendments are: (1) the Chief Judge of the Superior Court may appoint an active Superior Court judge to hear cases in the Business Court Division; (2) if one of the parties wishes to transfer a case to the Business Court Division, that party must pay, pro rata, a $1,000 fee to the Court; (3) the $1,000 will not be assessed to either party if a Business Court Division transfer comes from the judge originally assigned to hear the case in Superior Court. The addition of Superior Court Judge Melvin K. Westmoreland has allowed the Business Court Division to expand its caseload.
Hawaii does not currently have a business court. However, there is a proposal for a pilot program concerning court annexed arbitration for commercial litigation in the First Circuit court of the State of Hawaii. In addition, on September 1994, Chief Justice Ronald T.Y. Moon approved a two-year business court pilot project within the above listed court annexed arbitration program for commercial litigation in the First Circuit of the State of Hawaii. It would place some of its contract claims into the court's arbitration program, which currently only handles tort claims. It had not yet been implemented. In 2003 Hawaii assembled a fifteen member "Special Committee on Business Courts" to make an inquiry into "whether Hawaii should or should not have a business court."
The Chancery Division, of the Circuit Court of Cook County, controls cases that involve a commercial relationship between the parties. The Chancery Division hears intra-corporate business disputes regardless of the amount of the claim. This is divided into two sections: 1) General Chancery Section, and 2) Mortgage Foreclosure/ Mechanics Lien Section. This business relationship includes, but is not limited to: contract matters, creditors' rights, liens, construction of wills and trusts, trusteeships, receiverships, dissolutions of partnerships and corporations. Calendars list the court schedules and standing orders in the General Chancery Section. General Order 2.1(b)(1) describes the proceeding to be heard in the General Chancery Section, and the Rules list the procedural guidelines for disputes brought before the Chancery Division.
Though Indiana has not made any formal progress towards the establishment of a business court system, former Marion Superior Judge Kenneth Johnson has devoted "full-time effort to managing the court's complex-litigation docket, paving the way for what he believes could eventually become the state's first specialized business court." Johnson stated that he was first inspired after attending an American Bar Association conference in November 2008, which reported that 15 states have specialized business or complex-litigation courts. Johnson explained the necessity of a business court, "there seems to be a need for a court that has the time and expertise to handle complex litigation." For further information, see An eye to the future: Marion Superior 2 ramps up 'complex litigation docket', THE INDIANA LAWYER, May 27, 2009.
The state of Iowa could be the next to create a specialty court for business cases. Called the "Iowa Business Specialty Court," the court is scheduled to sit starting this spring after a decision by the Iowa Supreme Court in December. The court will hear commercial civil litigation cases with $200,000 or more in controversy. Iowa hopes that the establishment of the court makes the civil court system more efficient, less complicated, and more affordable.
The Business and Consumer Docket ("BCD") was established on November 17, 2008, by Administrative Order with the purpose of providing predictable judicial action in selected cases involving business and/or consumer disputes, avoiding unnecessary burdens on the court and the litigants in such cases, keeping litigation costs reasonable, and promoting an effective and efficient process for resolving such disputes. Cases that may be considered for transfer to the BCD are jury and non-jury civil actions and family matters that do not involve children, in which the principal claim or claims involve matters of significance to the transactions, operations or governance of a business entity and/or the rights of a consumer arising out of transactions or other dealings with a business entity. Cases transferred to the BCD also require specialized and differentiated judicial management. Any party may submit an application to transfer their case to the BCD. Trial judges and justices may also file a recommendation to transfer a case to the BCD. It is solely to the discretion of the BCD judge reviewing the transfer application to either accept or reject a case transfer to the BCD. When determining whether a case will get transferred the BCD judge may consider a number of factors. These factors are listed in the Administrative Order itself, and are given more specific criteria through the BCD Procedural Rules, provided as Appendix A to the Administrative Order
Maryland state courts have a Business and Technology Case Management Program to adjudicate complex or novel business and technology issues. Cases are assigned to this program when they present "commercial or technological issues of such a complex or novel nature that specialized treatment is likely to improve the administration of justice." The website makes opinions issued by program judges available on-line. The Baltimore City Circuit Court has established a helpful website for the Business and Technology Case Management Program in its court. The benefits of bringing a case to this program include being heard by judges who have received Judicial Institute specialized training in business and technology matters.
In 2000, the Maryland Business and Technology Court Task Force issued its Final Report which contains information about why the Business and Technology Case Management Program was established and what types of cases qualify for the special docket.
The Business Litigation Sessions (BLS) of the Superior Court was created in 2000, and since 2003 has been available for cases initiated in Suffolk, Essex, Middlesex, and Norfolk counties. On January 19, 2009, the Business Litigation Sessions of the Superior Court passed Administrative Directive 09-1, which established the Business Litigation Sessions as permanent sessions of the Superior Court located in Suffolk County. The Suffolk County Civil Clerk's Office is the clerk's office for the BLS. When a plaintiff seeks to have a case accepted into the BLS, a plaintiff shall file the Case in the Suffolk County Civil Clerk’s Office and complete the BLS Civil Action Cover Sheet, stating reasons why the case should be accepted into the BLS. The BLS complaint and BLS Civil Action Cover Sheet shall be brought directly to the clerk of the BLS Administrative Justice. The BLS Administrative Justice determines whether or not to accept a case into the BLS. Cases which fall under one of 17 categories listed in Directive No. 09-1 may be accepted into the BLS in the sound discretion of the BLS Administrative Justice. The BLS Administrative Justice’s decision on cases which fall into these categories shall be based principally on the complexity of the case and the need for substantial case management. Through December 31, 2010, the BLS will run a pilot program intended to reduce discovery costs and expedite litigation.
In 2002, Michigan legislators passed a law to create a "Cyber Court", an idea that was then revolutionary. The court would have jurisdiction of commercial and technology cases exceeding $25,000. More interestingly, the court would have specials perks, such as electronic document filing, virtual courtrooms, and the ability to serve parties through email. However, the Cyber Court was never funded and did not become operational.
In 2010, The State Bar of Michigan formed the "Business Impact Committee" to review the ways in which Michigan's court system serves the business community and to determine whether there are procedural or structural changes that could improve the system. The Committee has established a monthly meeting schedule and issued an "Interim Report" in January, 2010.
In November 2011, the 16th Circuit Court implemented the first Specialized Business Docket ("SBD") in Michigan pursuant to Local Administrative Order 2011-05 ("LAO"). The purpose of this pilot program is to: (i) reduce the time required for businesses to resolve complex legal disputes; (ii) improve the quality of decisions rendered; (iii) reduce the costs incurred by businesses in getting their disputes resolved; (iv) improve the attractiveness of Macomb County's court system to the business community; and (v) develop a body of case law on business law issues at the trial court level.
The LAO divided cases into three categories: (i) cases required to be accepted by the SBD; (ii) cases that may be eligible to be assigned to the SBD; and (iii) cases excluded from the SBD.
Commencing in March 2012, the 17th Circuit Court implemented their own Specialized Business Docket program. The Honorable Christopher P. Yates will be the presiding judge over the 17th Circuit's SBD.
On October 16th, 2012, Michigan Governor Rick Snyder approved House Bill 5128, establishing a business court in Michigan. The Bill creates judicial efficiency in handling business cases across the state. The newly enacted law creates a business court in each Michigan Circuit Court with three or more judges, while courts with less than three judges have the choice to create a business court. The business courts will handle all claims in which one or more party is a business enterprise. Additionally, these courts will oversee all actions involving commercial and business disputes. Some Michigan counties have already created business courts that will require minor adjustments while other countries have no previous experience with business courts. While the new law goes into effect on January 1, 2013, the anticipated commencement date of these courts is July 1, 2013.
Minnesota currently has a reduced-cost litigation pilot project located in Ramsey County. Both parties and the judge must agree to participate in the project, and it is most suitable for basic commercial or contractual disputes where the cost of litigation may exceed the underlying dispute.
Cases on the reduced-cost litigation track are assigned to a single judge and are managed to reduce the cost of hearings, motions and any required conferences. A scheduling conference is held within 30 days, the period of discovery is limited to no more than 75 days and a trial date is set within 150 days. The discovery period is often the most costly for the litigants, as each party typically files "interrogatories" and requests for depositions and documents. Once a case has been diverted to the reduced-cost track, further interrogatories are limited and relevant information and documents must be exchanged, preventing additional delay and costs. The use of telephone and interactive video conferencing is also encouraged.
To participate in the pilot, the parties and the judge must all agree that a case is a suitable candidate for a reduced-cost process. The reduced-cost litigation pilot grew out of a committee formed in 1999 to study the feasibility of a business court. While creating a business court was not an option the group endorsed, various subcommittees researched other means of improving and streamlining civil court processes.
The Business Courts Study Group met throughout the summer and fall of 2008 to discuss the possibility of establishing a specialized process to streamline resolution of commercial and business disputes. The Study Group recommended the Mississippi Supreme Court create a pilot program for the disposition of business cases in the three regions of the State with the highest concentration of business and commercial cases.
Under the Group's recommendation, a business docket would be created in each of the Chancery and Circuit Courts in the selected regions. An elected sitting judge or former judge would be appointed as a special judge in these regions and would be assigned to hear cases on the business docket. These judges would oversee every aspect of each case. The judges who would undergo special training in handling complex business litigation would issue written opinions in each case, which would help to build a strong body of precedent which businesses could come to rely upon. Special procedural rules created by the Supreme Court would expedite the resolution of cases on the business docket, lowering the costs of litigation for all parties.
The Group recommended that certain matters – such as corporate governance disputes, intellectual property claims, and business-to-business disputes – would automatically be assigned to the business docket, while certain other types of cases (employment law matters and commercial insurance coverage disputes, for example) would be placed on the business docket only upon the consent of both parties. Other types of cases, most notably personal injury, products liability, and medical malpractice cases, would be ineligible for assignment to the business docket.
Nevada's Supreme Court approved changes to local rules creating business court programs in Nevada's 2nd (Reno) and 8th (Las Vegas) Judicial Districts. The 2nd District has created a Business Docket that hears cases involving corporate governance issues, trademark and trade secret claims, state securities law, deceptive practices act claims and "any disputes among business entities if the presiding judge of the business court docket determines that the case would benefit from enhanced case management."
The 8th District created a Business Court that expressly oversees the same categories of cases, as well as UCC actions, and has heard cases involving trademark actions, shareholder disputes and business litigation. Currently, lawmakers in Nevada are considering a state constitutional amendment to create a new business court statewide, modeled after Delaware Courts, to help accommodate the growing number of companies that incorporate in Nevada. An article in the Las Vegas Review Journal explains more about the 2nd District's Business Docket, the 8th District's Business Court, and discusses what legislators are considering for the future.
Recently, a Legislative Subcommittee has been studying possible revisions to the business courts in Nevada. The subcommittee makes the minutes of its meetings available to the public. The Las Vegas Review-Journal notes that Nevada has decided not to create a Chancery court, but rather will support having business court judges publish their opinions. This will help to create a body of case law for businesses and their attorneys to turn to when evaluating business decisions. Additionally, in an effort to encourage business to locate in Nevada, the Secretary of State has created a website detailing the benefits of their business court system, as well as advertising the business court as a reason to incorporate in Nevada.
On June 3, 2008, the Governor signed into law a bill that allows for the creation of a state business court. After funding for the court was approved, Governor John Lynch nominated Richard McNamara, partner in the Wiggin and Nourie law firm in Manchester and past president of the New Hampshire Bar Association, to be the judge for the state's first business court. According to a press release issued by Governor Lynch's office, "The new business court will be similar to other specialized courts in New Hampshire, such as the family court, where a superior court judge will handle the docket of all business and commercial disputes, allowing business disputes to be resolved quicker and adding efficiency to the judicial system." Litigants may use the court voluntarily and the court is meant to be a tool by which litigants can limit the expense of litigation that they might otherwise incur in the traditional court system.
New Jersey's business court began with pilot programs in Bergen and Essex Counties (New Jersey's most populous counties) in 1996. Since 2000, however, all counties in New Jersey have qualified for a tracking designation for "complex commercial cases". In 2004, New Jersey started a complex commercial case pilot program in Burlington, Hudson, Mercer, and Ocean Counties. Recent efforts at creating a commercial and technology part within New Jersey's Law Division proved unsuccessful. The pilot program is still in effect, but according to court officials is rarely used. An earlier report created in connection with a similar effort discussed factors the state considered when determining whether to create such a division.
In 2010, Assemblymen David Russo and Upendra Chivukula introduced a bill in the New Jersey General Assembly that, if passed, would create a Business Court in the State. Such legislative efforts have not yet been successful; currently the 2010 bill has been referred to the Assembly Judiciary Committee. Opponents of a New Jersey business court argue that the current system is satisfactory.
In February 2011, the Committe on the Commercial Division proposed a procedural rule that would only be applicable in Commericial Division cases in New York to provide for expanded expert disclosure, including despositions of testifying experts and timely disclosure of expert reports. The rule does not alter the existing expert disclosure rule (CLPR Section 3101(d)) because a number of past proposed amendments to that rule have been denied. See "A Proposal for Enhanced Expert Disclosure in the New York State Commercial Division" (PDF) for the full committee report.
The Business Court, established in 1995 within North Carolina's Superior Court, hears specially designated complex commercial, business and technology disputes. Under current rules, certain categories of cases are presumptively within the Business Court's jurisdiction, while other cases remain subject to discretionary assignment by the Chief Justice of North Carolina Supreme Court. A party must ordinarily request that a case be assigned to the Business Court; district and superior court judges may also recommend that a case be transferred to the Business Court either by motion or sua sponte. On January 1, 2006, the Business Court instituted a new removal procedure for individuals seeking to reassign a case to the Business Court. Additionally, the North Carolina legislature has recently increased the fee for removing cases to the Business Court to $1,000. On February 26, 2010, the Administrative Office of the Courts released a report to the North Carolina General Assembly detailing the number of new, pending and closed cases as well as the age of pending cases in the North Carolina Business Court for the 2009 fiscal year.
The Business Court has three judges, hearing cases state-wide, with a single Judge handling each case from beginning to end. The judges are located in Greensboro, Charlotte, and Raleigh, but cases are tried in the county in which they are filed. The Business Court does permit e-filing, but original documents must also be submitted to the Clerk of the Superior Court of the judicial district where the case is pending. The Business court publishes its opinions.
In 2004, the North Carolina Chief Justice's Commission on the Future of the North Carolina Business Court issued a report on the Business Court. The Commission noted that the Business Court has allowed for "improved case management . . . increased speed and efficiency . . . advanced [courtroom] technology . . . specialization . . . predictability [and] attracting businesses to North Carolina." Recently a private practitioner has created a blog to comment on such opinions. Another practitioner has commented extensively on the history of the court and the reasons for having such a court in North Carolina.
In January 2009, the Ohio court system began a pilot program for commercial litigation. Four counties (Hamilton, Franklin, Lucas, and Cuyohoga) began participating in the program that creates a commercial docket. A FAQ is available regarding logistics of the Commercial Docket. More information about the Ohio pilot program is available here. In late 2012, the Supreme Court Task Force on Commercial Dockets issued a final report in which it recommended the Supreme Court adopt Rules 49 through 49.12 of the Rules of Superintendence for the Courts of Ohio allowing for the permanent establishment of commercial dockets.
Oregon's Second Judicial District (Eugene, Lane County Circuit Court) has implemented the Commercial Court Program, wherein appropriate cases are assigned to a single judge. The Presiding Judge is the gatekeeper on accepting cases into the Commercial Court, but has been given guidance through an Operating Statement, on a wide range of business and commercial disputes that may be appropriate for the Program, as well as products liability, mass tort actions, environmental litigation, and class actions. The Commercial Program's website publishes the Court's opinions.
So successful has the Lane County program been that on October 9, 2009, Chief Justice Paul J. DeMuniz of the Oregon Supreme Court announced the development of a statewide Oregon Commercial Court. In his address celebrating the 150th anniversary of the Oregon Supreme Court, Chief Justice DeMuniz stated that the court would be composed of judges from across Oregon, with one judge serving as the presiding judge, and would be able to hear cases in all parts of the state. Once the Commercial Court accepts a case, one judge will see the case through for all trial purposes, including a discovery plan, a trial conference at least ten days before trial, and the disclosure of all exhibits. On January 9, 2010, speaking before the City Club of Salem, Chief Justice DeMuniz further elaborated that he foresaw the Commercial Court primarily hearing only the most complex business transaction disputes, claims of breach of contract, employment suits, malpractice cases, and construction defect actions.
The First Judicial District of Pennsylvania (Philadelphia) has a specialized Commerce Program. Cases must meet certain criteria before being assigned to the Commerce Program. Opinions of the Commerce Program are available online. The Business Litigation Committee of the Philadelphia Bar Association has a helpful website for litigators appearing before the Commerce Court. A brief history of the Commerce Court was recently published.
The Court of Common Pleas of Allegheny County (Pittsburgh) has instituted the Commerce and Complex Litigation Center "to enhance the disposition of commerce and complex litigation in Allegheny County." The Commerce and Complex Litigation Center has a specialized docket and procedures.
In April 2001, a Business Calendar was created by the Presiding Justice of the Rhode Island Superior Court through an administrative order. The Business Calendar was created in Providence and Bristol counties with the intent of expediting state economic matters. Legal matters assigned to the Business Calendar included breach of contract, business tort, U.C.C. transactions, commercial real property transactions, shareholder derivative actions, and matters affecting business operations. The Business Calendar Justice must agree to all cases before they are assigned to the Business Calendar.
However, due to case backlog in the Province County Superior Court system, the Business Calendar was suspended in March 2009 and remained suspended in June 2010.
South Carolina currently has a Business Court Pilot Program. The Pilot Program was created on September 7, 2007 for a two year period. The Chief Justice of South Carolina's Supreme Court extended the pilot program for two years on October 13, 2009 by administrative order on the finding that the program "has successfully created an option to litigate complex business, corporate, and commercial matters in the circuit courts of this State." In order to have a case in heard in the Business Court Pilot Program, a party must move to have the case assigned there.
The Pilot Program is being run in three geographic areas: Greenville, Charleston and Richland Counties.
According to Judge Edward Miller, the appointed Business Court Judge in Greenville, the benefits of the Business Court are that "each case is handled by a single judge, each case is allowed wide latitude in scheduling for discovery, motion hearings, and trial...cases are not subject to time and scheduling rules and constraints imposed on other cases on the regular docket and they are quite often given precedence in scheduling matters, thereby allowing faster resolution of issues."
A list of Business Court Opinions can be found here.
In June 2011, the Supreme Court of Appeals of West Virginia approved a proposal to allow the Business Court Committee to develop rules and procedures to create a Business Court in the state. The Committee plans to have written rules available for public comment and public hearings before the end of 2011 and proposed legislation available for the 2012 legislative session. The proposed court would be called a Complex Commercial Litigation Court. It would have 5 to 7 judges who would have backgrounds in business or commercial litigation and who would receive special training. Mediation would be mandatory in all cases assigned to the new court, and the business court judges would act as the mediators. Steve Canterbury, the Supreme Court Administrative Director, cautioned that the Court will not make a final approval of the specialized business court until the court rules are approved, and it would take several months for that process to be complete. It would be presumptively mandatory for certain types of cases to be handled by the court, including disputes between two or more businesses involving contracts, sales, and Uniform Commercial Code disputes; the purchase or sale of a business; the internal affairs of a business (like shareholder disputes); trade secrets; non-compete agreements; intellectual property cases; and securities cases among other types of cases. Find further information in this press release from the Court.
On October 10, 2012, West Virginia's first Business Court opened in Martinsburg. The court will be responsible for handling cases that principally involve transactions, operations or governance between businesses, and tax appeals. Supporters of the new court hope that the court will be good for business because the judges will be more focused on business disputes that are inherently unique to businesses. The West Virginia Chamber of Commerce hopes to improve the output of the decisions. Ultimately, the goal is for business disputes to be resolved in less than a year (ten to eleven months).
To have their case heard in the new Business Court, parties will file a motion in the circuit court. If the motion is approved by the state Supreme Court chief justice, then the case will shift to the Business Court Division. An alternative to this process is to have a judge make a motion to transfer the case. The Business Court Division was established to hear business against business disputes. The new court will not hear cases involving consumer litigation, commercial insurance disputes, bad faith actions, or criminal cases. Once a case is assigned to the Business Court Division, the Division Chairman will assign one of the Division judges to serve as the Presiding Judge for the case.
The new division will feature up to seven judges. who will be “traveling judges” – the judges will travel to the jurisdiction (county, etc.) where their case arose as opposed to being assigned specific jurisdictions. Each case will be appointed two judges – a “Trial Judge” who will handle all of the litigation aspects of the case and a “Resolution Judge” who will act as a court-appointed mediator who will handle the alternative dispute resolution aspects of the case. On September 11, 2012, the Honorable Menis E. Ketchum, Chief Justice of the Supreme Court of Appeals of West Virginia, made his first four appointments to the Business Court division. All four judges will serve seven-year terms. Additionally, the Honorable Christopher C. Wilkes was designated to be the first Chair of the Business Division, serving a three-year term.
In 1994, the state created the Task Force on the Creation of a Wisconsin Business Court. Acting upon the recommendations of that Task Force, Wisconsin established rules for a Business Court in Milwaukee County Circuit Court in April, 1996. However, no cases have been transferred into the court, and it is currently inactive.
There are currently no business courts in Virginia. In 2007, the General Assembly of Virginia considered enacting business courts in House Bill No. 3099, but the General Assembly did not enact the measure.
Links to Helpful State Business and Technology Court Resources
Electronic Discovery Law A great blog for legal issues and news relating to electronic discovery and electronically stored information.
ABA Section of Business Law has published a brochure on Establishing Business Courts in Your State. The brochure contains a wealth of information for jurisdictions considering creating a business court. In addition, the section has a resource page for business court information.
National Center for State Courts Business Courts and Complex Litigation This website contains helpful information on business courts in different states, including articles and reports about state programs.
Commercial Courts: A Twenty First Century Necessity? Written by Alvin Stauber, Professor of Law, College of Business, Florida State University (2007).
A History of the Creation and Jurisdiction of Business Courts in the Last Decade This is a helpful article written in 2004 about state business courts.
JBTL State Business and Technology Case Database
Click the link below to search the JBTL State Business and Technology Case Database. This database, launched in August 2007, is updated weekly by student editors on the Journal. Every week, students choose and brief state court cases in different areas of business and technology law.
The lower house of Indian Parliament recently passed a Bill that seeks to establish a "Commercial Division of High Courts." The Bill was introduced in response to the recommendations of the 188th Report of the Law Commission of India, and aims at the adjudication of big ticket commercial disputes in less than one year.
Arab News recently reported on the Saudi Arabian Supreme Judicial Council's decision to open commercial courts in major cities across the Kingdom. The decision is being welcomed by both legal and economic experts who recognize the boost to foreign investment that having a specialized business court will have on the Kingdom.
A New Commercial Court in Malaysia recently opened. The goals of the court are to reduce waiting periods for hearing dates and utilize digital fillings to increase efficiency and effectiveness.
The British Virgin Islands recently opened the Commercial Court for the Eastern Caribbean. The push for this court comes from the backdrop of increased litigation and liquidations arising out of the economic downturn and the unraveling of the Madoff scheme.
A recent article in the German Law Journal notes the emergence of business courts internationally. The article emphasizes that handling international business disputes can be big business, and that sophisticated parties use choice of law and choice of forum provisions to ensure that such cases are dealt with by courts that specialize in business transactions. Thus the development of business courts is good business for countries around the world.
Toronto, Ontario, Canada has a Commercial List, which the Canadian equivalent to a Business Court. The Commercial list was established in 1991, to hand complex commercial litigation.
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