Recent Developments in State Business & Technology Courts

May. 4th, 2009 - The Atlanta Constitution-Journal reported that the Fulton County (Georgia) Business Court has proposed a transfer fee for new cases to fund the Court's operating costs. In addition, the county also wants to expand the number of judges sitting on the Business Court by rotating other judges through the Court.

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Overview of State Business, Technology and Complex Courts/Programs

• Arizona

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. In 2006, and administrative court order extended the prilot program until December 31, 2008.

The Pilot Program's committee recommended that the program continue but that statewise expansion be deferred becuase the committee did not find it practical or necessary at this time.

• California

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. Additionally, in 2006 San Mateo County introduced its own Complex Civil Litgation Program. The rules of the court are available online. An article notes that the program in San Mateo County makes sense becuase of its proximity to Silicon Valley and major biotech research companies that may produce complex cases.

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

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.

• Connecticut

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 five court locations (New Britain, Norwich, Stamford, Tolland, 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.

Parties may request that a case be placed on the Complex Litigation Docket. To request a transfer of the case to the Complex Litigation Docket, the parties making the request should file an Application for Case Referral – Complex Litigation Docket, along with a $250.00 filing fee. Interested parties may obtain the application forms at any Judicial District Clerk's Office. Objecting parties shall have 15 days in which to file an "Objection to Transfer to the Complex Litigation Docket" once the Chief Administrative Judge of the Civil Division grants the request.

The Court will schedule a hearing for any objections to transfer. The Chief Administrative Judge will decide whether a case initially qualified as complex litigation should keep its designation. On recommendation from the Chief Administrative Judge, the Chief Court Administrator issues the final approval for adding the case to the Complex Litigation Docket.

This Special Session of the Superior Court will employ the individual calendar method of case management, where one judge will preside over the litigation in its entirety. Moreover, cases on the Complex Litigation Docket will comport with existing Connecticut Practice Book rules. Such a system can serve several useful purposes. For example, in terms of alternative dispute resolution practices, judges may help facilitate the resolution of cases before trial by serving as mediators within the special division. See Lee Applebaum, Commerce Court ADR Procedure Suited to Business Courts, THE LEGAL INTELLIGENCER, Feb. 7, 2006, at 5. Parties may view complex litigation judges as trustworthy and credible mediators. Consequently, cases may be more likely to settle outside of trial. Successful mediation would increase the efficiency of the court system by reducing the each individual judge's trial docket.


• Delaware

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, and because of the number of businesses incorporated in Delaware, its Superior Court hears significant disputes addressing commercial and corporate actions over money damages. 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.

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 of Delaware's courts in business and commerical law, see "The History Delaware's Business Courts," published in Business Law Today.


• Florida

There are four business court programs in Florida, located in Orlando, Miami, Tampa, and Broward County. The Ninth Judicial Circuit Court'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.

In 2007, the Eleventh Judicial Circuit Court, located in Miami, created its own Complex Business Litigation Court. Likewise, the Thirteenth Judicial Circuit's Complex Business Litigation Division, located in Tampa, became operative not long thereafter.

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 Business Law Section of the Florida Bar also has a helpful website about business courts in Florida.

• Georgia

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 ended a six-month business court pilot program, modelled after the Fulton County Business Court, on June 31, 2008. Gwinnett Judges are currently compiling a report documenting the cases assigned, and the dispositions to determine if the Business Division should be continued. 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.

• Illinois

The Circuit Court of Cook County has commercial calendars. The commercial calendars hear cases that involve a commercial relationship between the parties. This along with the New York Commercial Division is the first post-Delaware Court of Chancery specialized business court docket. The Docket started in 1993. The Chancery Division hears intracorporate business disputes. General Order 2.1(b)(1) describes the proceeding to be heard in the General Chancery Section.

• Maine

The Business and Consumer Docket ("BCD") was established in June 1, 2007 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.

• Maryland

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.

• Massachusetts

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 the Suffolk County Superior Court. 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 17 categories 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.

• Michigan

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. At the time the development was considered, the Business Court Ad Hoc Committee answered some frequently asked questions about establishing such a court.

• Mississippi

Mississippi is in the process of developing state business courts.  After seeing the advantages of such systems in other states, Mississippi has created a "Business Courts Study Group" to asess the viability of a state business court system in Mississippi.  The study group has begun posting materials.  In November 2008 the Business Courts Study Group issued its recommendations for the proposed pilot program. The program will be in the Circuit Court and Chancery Court Districts in three regions (north, central, south). The Chief Justice will appoint the three judges from a list of recommended sitting or former judges made by the Secretary of State. The study group’s recommendation included a list of cases that would be assigned to the business docket and cases that can be assigned to the business docket upon mutual agreement. All cases pending at the time of the establishment of the pilot program are transferable to the business docket upon mutual agreement. A task force under the support of the Supreme Court and the Secretary of State’s Office shall be formed to collect, analyze, correlate and interpret information and data concerning the Business Docket of each Pilot Court in addition to detailed and specific data on the volume of and types of all business cases pending and being filed in the Mississippi court system.

• Nevada

Nevada's Supreme Court approved changes to local rules creating business court programs in Nevada's 2nd (Reno) and 8th (Las Vegas) Judicial Districts, and has subsequently amended those rules. 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. A Las Vegas Review-Journal notes that Nevada has decided not to create a Chancery court, but rather will support having buisness 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.

• New Hampshire

On June 3, 2008, the Governor signed into law a bill that allows for the creation of a state business court.  An article expresses excitement of over the authorization to create the court.  Currently New Hampshire, despite budget problems, is pushing ahead to form the business court. An article in the New Hampshire Business Review reports that if the Govenor's budget is approved the state will be appointing the first business court judge. The state is emphasizing that the business court judge will help to alleviate congestion in the courts and speed up the court system's capacity to handle both the general and specialized docket.

• New Jersey

New Jersey has had a Complex Commercial Pilot Programs in Bergen (Hackensack) and Essex (Newark) Counties — its two largest counties — since 1996. 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. An earlier report created in connection with a similar effort disscussed factors the state considered when determining whether to create such a division.

• New York

As part of the Supreme Court of New York State, the Commercial Division handles complicated commercial cases with a monetary threshold between $25,000 to $100,000 depending on the county. The Commercial Division enforces strict discovery deadlines, allows all participants in the program to use electronic filing, and may refer cases to mediation before "neutrals" - experienced lawyers who have volunteered their services to the court - at any time. In 2006, the Commercial Division adopted statewide uniform rules governing jurisdiction and procedures of the court. A recent law review article by Ari Davis discusses the Commercial Division's use of ADR. Additionally, the New York Business Divorce blog offers interesting commentary on many New York business cases.

A 2006 Focus Group Report has analyzed the success of the commercial division and identifies features of the commercial division that could be helpful to other courts. The New York Commercial Division has received numerous accolades, including the 2006 Stanley F. Fuld award presented by the New York State Bar Association of Commercial and Federal Litigation.

• North Carolina

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. The Business Court has three judges, hearing cases state-wide, with a single Judge handling each case from beginning to end. The Business court publishes its opinions.  Recently a private practitioner has created a blog to comment on such opinions. Another practioner has commented extensively on the history of the court and the reasons for having such a court in North Carolina.

• Ohio

The Ohio court system currently has a pilot program for commercial litigation. The pilot program initially started in four counties (Hamilton, Franklin, Lucas, and Cuyohoga) in January 2009. A FAQ is available regarding logistics of the Commercial Docket. More information about the Ohio pilot program is available here.

• Oregon

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.

• Pennsylvania

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.

• Rhode Island

The Superior Court of Rhode Island has a Business Calendar which serves as an efficient alternative for complex business cases. The Business Calendar was created by administrative order. It hears cases such as breach of contract, business tort, U.C.C. transactions, shareholders derivatives suits, and other complicated commercial disputes.

• South Carolina

By administrative order the Chief Justice of South Carolina's Supreme Court has created a Business Court Pilot Program. The Business Court will handle complex business, corporate and commercial matters. The Pilot Program will begin with three Circuit Court Judges located in Charleston County, Greenville County and Richland County.

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.

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.

Commercial Court Project at the University of Cincinnati College of Law has compiled information on different states’ efforts to create specialized business or commercial 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.

JBTL State Business and Technology Case Database

International Developments

A recent article in the German Law Journal notes the emergence of business courts internationally. The article empahsizes that handling international business disputes can be big business and that sophisticated parties use choice of law and choice of furm provisions to ensure that such cases are dealt with by courts that specialize in buisness 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 commerical litigation.

A 2003 report from the Indian Union Minister for Law, Justice and Commerce and Industry discussed creating a Commercial Division in India's court system.